The phase “defend, indemnify, and hold harmless” is
found in many, if not most, contracts with liability allocation
provisions, across multiple industries. However, many parties do
not have a complete understanding of what, exactly, these words
mean. The meaning of all three terms varies on a state-by-state
basis. Some states require an indemnitor to defend an indemnitee.
For example, an Oklahoma statue regarding the interpretation of an
indemnity contract states that unless a contrary intention is
found in the contract, “[t]he person indemnifying is bound,
on request of the person indemnified, to defend actions or
proceedings brought against the latter in respect to the matters
embraced by the indemnity; but the person indemnified has the right
to conduct such defense, if he chooses to do so.” Some
states, such as Ohio, view the duties to defend and indemnify as
wholly separate. Moreover, states such as Colorado, use
“indemnify” and “hold harmless”
synonymously.
