Rejecting an argument that the ADA preempts all contractual claims for indemnity and contribution, the Ninth Circuit recently upheld a public owner’s right to seek contribution for damages arising out of ADA violations caused by the designer and contractor of a transportation facility. See City of Los Angeles v. AECOM Services, Inc. (here).

This decision bucks a disturbing trend. As noted elsewhere in this blog, a number of courts have held that the ADA preempts an owner’s right to enforce a contractual right of indemnity or contribution for damages arising out of a violation of the ADA.  The Ninth Circuit distinguished the other leading case on this issue – Equal Rights Center v. Niles Bolton Associates – noting that only claims for indemnity or contribution for damage arising out of a party’s own negligence frustrate the purpose of the ADA.  Where a party seeks indemnity or contribution for only damage arising out another party’s negligence, there is no conflict with the ADA and the claims are not preempted. In an interesting side bar, the Ninth Circuit also suggested that an important part of an owner’s ADA compliance program is requiring ADA compliance as part of its contracts with its designers and contractors.

Although the Ninth Circuit’s decision involved a public owner’s attempt to enforce its contractual right to contribution, the court’s holding offers a glimmer of hope to private developers who, like public entities, often do not have the expertise, personnel, or equipment necessary to construct projects themselves. To maximize their chances of recovering damages caused by the failure of contractors and designers to comply with the ADA, developers should include contractual provisions requiring their designers and contractors to comply with all legal requirements, including the ADA and FHA, and to provide defense and indemnity commensurate with their own wrongdoing.