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There are three parties A, B, and C.

A provides X service on a contractual basis to B. B on the other hand provides Y service (which is related to X, think about door service and parking service) to C on a contractual basis, but has a waiver stating:

Party C indemnifies party B harmless from any damages that party A may cause.

There was a damage incurred by party C. C is holding B harmless, as there is no contractual agreement between A and C. B requires C to hold B harmless against any negligence from A. No info on jurisdiction, please assume US.

Can party C still bring a claim against B? Or should they sue party A directly? There is no contractual agreement between A and C.

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    There is not enough information here to give a useful answer. What has been done, and by who, to give rise a suit? What kind of suit? what jurisdiction? If C has no contractual agreement with A, why is C holding A harmless? Or does B require C to hold all of B's contractors harmless? Some actions cannot be covered by a waiver in advance, but many can. – David Siegel Dec 3 '20 at 19:03
  • There was a damage incurred by the party C. C is holding B harmless, as there is no contractual agreement between A and C. B requires C to hold B harmless against any negligence from A. No info on jurisdiction, please assume US. – AK88 Dec 3 '20 at 19:19
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    Who caused the harm? Your question just says that it was incurred by party C. – Ryan M Dec 4 '20 at 7:58
  • @RyanM "Who caused the harm?" Party A. The OP refers to "damages that party A may cause" and then again to "negligence from A". – Iñaki Viggers Dec 4 '20 at 10:16
  • @RyanM, as Iñaki Viggers mentioned. the harm was caused by party A. – AK88 Dec 4 '20 at 16:07
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Can party C still bring a claim against B? Or should they sue party A directly?

C ought to sue A. I'm assuming C agreed to the waiver (or else B would have declined to enter the contract with C).

The waiver is a form of remedies clause in the contract between B and C. These two parties agree on which conditions C may sue B.

Even if alleging a[n indirect] contract between C and A fails, your description reflects that C is a beneficiary of the contract between A and B. This creates a duty A owes to C. In other words, C may --and agreed to-- assert his rights against A. See Restatement (Second) of Contracts at §309(1).

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  • thanks, this makes sense! Yes, C did agree to the waiver put forth by B. There is no contract between A and C (parking users may keep changing but B still got to maintain the door with the help/service of A) whatsoever. – AK88 Dec 4 '20 at 0:48
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    The nature of the suit would depend upon the nature of the wrong by A. Often a suit by C against A would be a tort lawsuit rather than a third-party beneficiary of contract suit. But the facts in the question aren't specific enough to know. – ohwilleke Dec 5 '20 at 0:11
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    @ohwilleke "Often a suit by C against A would be a tort lawsuit rather than a third-party beneficiary of contract suit". The OP clearly refers to harm that A causes as per A's role in the contract between B and C. Hence, that sounds in contract dispute, not tort. Black's Law Dict. defines tort as "[a] wrong independent of contract". See also Tingler v. Graystone Homes, Inc, 834 S.E.2d 244, 254-256 (2019), Anderson v. Ford Ranch, LLC, (NV CoA, Nov., 2020), and many others. – Iñaki Viggers Dec 5 '20 at 15:18
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    @IñakiViggers But when parties are not in direct privity with each other, they often resort to tort instead. For example, even though defective construction of a building would often be a breach of contract, suits for defective construction of a building are usually brought as tort negligence suits when there is not direct privity of contract. The history of product liability law reflects the same trend. – ohwilleke Dec 6 '20 at 20:12
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    @ohwilleke Privity of contract is irrelevant in the OP's scenario because A knows, or should know, that the intended first purchaser --or first intended "end user"-- of his services is C, not B. Utz v. Moss, 503 P.2d 365, 367 (1972) applied that rationale toward holding that "the implied warranty [...] extends to that first purchaser". – Iñaki Viggers Dec 6 '20 at 21:31

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