Success In Construction Defect And Accident Matters: Risk Transfer
Throughout my career in practicing insurance-defense litigation, primarily representing developers, general contractors, and homebuilders in construction-defect and construction-accident matters, the most critical key to success has been the ability to identify and transfer risk to the culpable parties.
This is true for obtaining a complete defense and indemnification for clients and their respective insurance carriers.
Traditionally, in construction matters, the developer/contractor is hired by an owner to construct the project through the retention and use of qualified, skilled subcontractors for each trade and does not self-perform any of the work.
These subcontractors enter into contractual agreements with the developer that include express provisions that require the subcontractor to defend, indemnify, and hold the developer harmless in the event that claims, alleged defects, issues, or eventual litigation arises based upon their work at the construction project.
When the owner of the property initiates litigation or a claim for construction damages against the developer, the developer uses these tools built into the subcontract agreement, supported by caselaw and statute, to transfer the risk to the implicated subcontractor responsible for the alleged damages.