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J.S. Alberici Construction Company2/7/2000
om its own. Midwest argues that a foreign law is repugnant to the public policy of Delaware only if it violates some fundamental principle of justice, prevalent conception of morality or deep-rooted tradition of society. See Loucks v. Standard Oil Co., N.Y. Ct. App., 120 N.E. 198, 202 (1918); 16 Am. Jur. 2d Conflicts of Laws §25 (1998). The Kansas law that would otherwise enforce the indemnification provision, the argument runs, cannot be so described.
This case poses significant competing arguments in a choice of laws setting. On the one hand, there is the strong policy in favor of enforcing another state's laws. Conversely, section 2704(a) contains an explicit statement of public policy by the Delaware General Assembly that is difficult to ignore. Midwest argues that because the purpose motivating the legislature's statement of public policy is not specified, nor the evil sought to be remedied identified, this Court should not permit the contractually-selected law of another jurisdiction to be cast aside. We are of the view, however, that courts faced with a clear legislative statement of public policy should not attempt to parse that policy or speculate concerning the degree of egregious conduct sought to be prevented.
Although section 2704(a) does not indicate the specific purpose underlying the policy expressed, it does express in broad terms the "promisee," "indemnitee" and "others" as a class prohibited from contracting away liability for their own negligence. The present language of the statute is apparently a direct response to an earlier Superior Court decision which narrowly construed the statutory purpose. In Wenke v. Amoco Chems. Corp., Del. Super., 290 A.2d 670, 673, the Superior Court construed the purpose of section 2704(a) to be as follows:
The purpose of the statute is to prevent owners and their affiliated preconstruction professional people who furnish plans, designs and specifications from contracting away their duty to stand behind their product. There is no clear or specific reference in the statute to contractors or subcontractors engaged in the actual construction of buildings or to the services which they may render in repairing or renovating the same.
In 1988, however, section 2704(a) was broadened through an amendment by the Delaware General Assembly to include anyone in a subcontractor/contractor relationship in the construction context. 66 Del. Laws, c. 394, §§ 1-5. That is this case.
Section 2704(a) is clear on its face: a contractual provision requiring one party to indemnify another party for the second party's own negligence, whether sole or partial, "is against public policy and is void and unenforceable." Courts are not free to disregard that declaration of policy. Accordingly, we find this statutory language compels the conclusion that enforcing Kansas law on this issue would be clearly repugnant to the public policy of Delaware.
III.
For the foregoing reasons, we reverse the decision of the Superior Court and remand this action for further proceedings.
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