Revising Construction AIA Contracts and Effective Risk Transfer: Waivers of Subrogation and Builder's Risk Policies

Allocating Liability Amongst Owners, Designers, Architects, GCs, and Subcontractors

A live 90-minute CLE video webinar with interactive Q&A


Wednesday, May 26, 2021

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, April 30, 2021

or call 1-800-926-7926

This CLE webinar will address construction counsel's concerns on risk management via the use of waivers of subrogation and builder's risk insurance policies. The panel will discuss revising AIA and other standard forms to equitably distribute liabilities among the contracting parties--general contractor, subcontractors, suppliers, architects, and the owner.

Description

Waiver of subrogation provisions in standard boilerplate language in the AIA Form in their simplest form provide that the parties waive their rights to sue each other for losses covered by their insurance. Although it may seem straightforward, there are several potential pitfalls that counsel and parties should consider when negotiating their contract.

Waiver of subrogation clauses often require that the parties obtain their insurers' consent; a failure to do so can lead to a denial of the claim by the insurance policies themselves. Some boilerplate provisions limit the scope of the waiver and the definition of "work" that can limit the types of losses covered. Where a project involves repair or renovation of an existing structure, a dispute can arise as to whether damage to existing or adjacent property is part of the "work."

The drafting, review, and approval of insurance provisions in construction contracts is either limited to the use of boilerplate language found in AIA Forms, delegated to non-lawyers, or ignored. Other times, the parties insert boilerplate language, such as the language found in an AIA Form, without considering how that language might impact the particular project. As with other construction contract provisions, while the AIA Forms can provide a good starting point, the parties should not accept insurance provisions without understanding how these clauses will operate.

These pitfalls highlight why contracting parties should not simply accept boilerplate AIA subrogation and insurance provisions without carefully considering how they might impact the project.

Listen as our expert panel reviews and advises on each of these provisions and discusses how these provisions can help ensure that all parties effectively minimize and shift the risk to the intended parties and their insurers.

READ MORE

Outline

  1. Overview of subrogation in AIA construction contracts
    1. Insurer consent
    2. Scope of the waiver
    3. Definition of "work"
  2. Relationship between waiver of subrogation clause and other potentially relevant contract language
  3. Impact on all parties to the contract
  4. The interplay of subrogation and builder's risk
  5. Recent case law: interpreting waiver provisions

Benefits

The panel will review these and other key issues:

  • What is generally the scope of a construction subrogation waiver in AIA Forms?
  • How can subrogation clauses be specialized to clarify issues of insurer consent, the scope of the waiver, and how work is defined?
  • What is the interplay of subrogation and builder's risk insurance?
  • How are courts interpreting waiver of subrogation provisions in construction defect matters?
  • What other contractual provisions will courts look at when interpreting the waiver of subrogation provision?

Faculty

Bowman, Lawrence
Lawrence T. Bowman

Director
Kane Russell Coleman Logan

For more than three decades trial lawyer Mr. Bowman has represented clients in complex commercial litigation, including...  |  Read More

Fisk, David
David H. Fisk

Director
Kane Russell Coleman Logan

Mr. Fisk concentrates his practice on large-loss property subrogation and construction matters, primarily representing...  |  Read More

Attend on May 26

Early Discount (through 04/30/21)

Cannot Attend May 26?

Early Discount (through 04/30/21)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include program handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

Download