As today’s contracting market continues…eh…to contract, there is a common expectation that more and more projects will continue to get “sideways” as subs and general suffer under the weight of decreased margins. It always happens in the building cycle. Already, many sureties are seeing an uptick in claims. Translated, that means not all the sub- contractors on a particular job may be able to complete that job.
And once a job get’s sideways…it seems to be forever cursed! Work slows, then stops. The owner won’t pay or can’t pay the general, mechanics liens become more real and eventually…lawsuits may fly. So what can you do?
Well, unless your a general contractor who actually pulls financials or D&B’s on all your subs, there are some things you can do to minimize some of the risk for the acts of your subcontractors. One of those is through the use of insurance endorsements. I call this “Pushing the Risk Around”
Background
Almost every contractor requires that the subs on a job, or sub’s-sub name the contractor and owner as an additional insured. But what does that mean?
It means that if there is a problem (loosely defined here) on the job by one of the subs, the sub is going to name you and the owner of the project as an additional insured.
This means that if the GC gets sued by the owner or some other party, your policy is going to be first in line (assuming your the sub) and your policy may be called on to defend the sub, the sub’s sub and the GC…almost everyone!
Under California law, you are liable for the acts of your sub…or more accurately…your insurance policy could be liable for the acts of your sub. But does that seem fair? Well it depends…
If you had knowledge of the subs acts or subs inability to act due to some circumstance, it absolutely could be 100% fair! But, if you didn’t…then probably not but you’ll still have to pay!
However, did you know that there is something you could have done to protect you own assets and insurance policy a little bit more from the acts or failure to act of your sub? You could have protected yourself with an Additional Insured endorsement from your sub’s insurance company, that names you as an additional insured. In addition, you could have you sub’s insurance policy contractually name you as the “Secondary policy” and your policy could be named as “non-contributory”.
Many insurance forms have these endorsements available but it is surprising how few contractors actually take the time to protect themselves better from the “sole acts” of their subs. With this “Primary and Non-Contributory” language, your subs policy will protect you from the sole and negligent acts of the subs. Without it, your policy will probably be liable.
So, word to the wise, if you haven’t done so lately, go back and re-read your subcontractor agreement. Even if you do business on a handshake, make sure the Additional Insured, Primary and Non-Contributory language is in place. That way, if your sub screws up and you’re not at fault, your insurance company shouldn’t have to pay.
It takes just a moment in time to really stop this problem from “Pushing YOU around” in the end…