Colorado’s construction anti-indemnity statute, C.R.S. § 13-21-111.5(6), raises an interesting question about how that familiar rule operates in construction disputes.

Defend Now, Allocate Later? An Unresolved Tension in Colorado Construction Law

August 16, 2026
David McLain - Colorado Construction Litigation Blog

For decades, Colorado law has recognized an important distinction between the duty to defend and the duty to indemnify. The former ordinarily arises at the beginning of litigation; the latter generally cannot be determined until the underlying liability is known. That distinction makes intuitive sense. A defense that becomes due only after litigation concludes is not much of a defense.

But Colorado’s construction anti-indemnity statute, C.R.S. § 13-21-111.5(6), raises an interesting question about how that familiar rule operates in construction disputes. The statute expressly regulates contractual obligations not only to indemnify, but also to insure and defend, and it reflects a legislative policy that construction businesses should bear financial responsibility for their own negligence.

Those principles have developed along separate tracks. At some point, a Colorado appellate court may have to decide precisely how they fit together.

Mr. McLain may be contacted at mclain@hhmrlaw.com

Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC

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