January 29, 2021 Contractor hired by city has to protect it on suits from cops on hair sample drug testing NO SPECIAL FORM OF NOTICE FOR DUTY TO DEFEND When a contract includes indemnity and an agreement to defend, no special kind of notice is required before the duty to defend is triggered. The burden of notice is low. Demanding a defense is called a tender of the case. Tendering the defense of a suit is a call to action from the one who agreed to defend in the contract between the parties. The party has to step in and take over the defense -or be responsible for an adverse outcome. FACTS The 2021 case by Massachusetts Supreme Judicial Court is Psychemedics v City of Boston. Boston hired a company that did drug screening of hair for testing that police officers were free from drug use. Boston required the company to agree that any suits from the hair drug tests would be defended by the company. There were suits. There was a demand from Boston that the company pay for the City’s legal defense. The City’s lawyers defended the City and looked for contribution for the defense costs from the company. ALLOWED TO TAKE OVER THE DEFENSE Once the duty to defend has been triggered, indemnitee must allow the indemnitor to take over the defense. Failure to do so relieves the indemnitor of its obligation to indemnify. COMMENT Contractual indemnification obligations are strict and sweeping. If you can, be the one to enjoy indemnification.