indemnification

Here are some recent pieces from the web that I found interesting. Perhaps you will too.

How to read an online privacy policy. Does anyone really read privacy policies or website terms? Of course not. Who has the time? Well, that’s a bit of an overstatement, but as I noted in The E-Contracting Paradox: No One Reads Online Terms But Everyone Agrees to Them, very few people read online terms. But these terms often constitute binding contractual commitments, so it’s a good idea to know what you’re agreeing to. The Privacy Rights Clearinghouse provides helpful hints in the Reading a Privacy Policy section of its Social Networking Privacy fact sheet as to what to look for when you read an online privacy policy.

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XTRA Lease LLC v. Pacer International, Inc.

Pacer Transport, an affiliate of Pacer International, Inc., the defendant in this case, leased a flatbed semi-trailer from XTRA Lease LLC. The trailer was involved in a serious accident when a wheel came off the trailer and struck a car, killing the driver of the car and seriously injuring the passenger. XTRA was sued for the personal injuries and death resulting from the accident. XTRA looked to Pacer for indemnification under its lease agreement with Pacer, and brought suit when Pacer refused.

Is Pacer required to indemnify XTRA for its own negligence?

The issue before the court on the plaintiff’s and defendant’s motions for summary judgment was whether the lease’s indemnification provision required Pacer to indemnify XTRA for its own negligence. The indemnification provision in the lease reads,

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Monarch Fire Protection Dist. v. Freedom Consulting & Auditing Services, Inc.

According to the Eighth Circuit’s opinion in this case, under Missouri law a party to a breach of contract action can recover attorneys’ fees for enforcing its rights under the contract via an indemnification clause only if the clause expressly allows for it. But Judge Gruender took issue with that characterization of Missouri contracts law in his dissent. The Missouri Supreme Court might clarify the issue in the future, but in the meantime, the careful drafter would be advised to be crystal clear when the parties intend to maintain the right to recover attorneys’ fees incurred in inter-party litigation. [click to continue…]

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