Construction contracts commonly assign the risk of project-related property damage to a third-party insurer. Either the contractor or the owner, usually the latter, buys an “all risk” policy covering the site, and the owner and contractor reciprocally waive any claim against the other for insured property loss. The waiver expressly applies to any insurance company that might become subrogated to the rights to one of the parties. The scope of the waiver depends on the language of the contract.
A Maryland court recently confronted a situation in which subcontractors sought protection from an insurance company subrogation suit. The reciprocal waiver in question, unlike the waiver found in the AIA General Conditions, made no mention of subcontractors. Were the subs left exposed to the insurer?
The other case in this issue involves a statutory “Certificate of Merit” required for negligence suits against design professionals. If the defendant wanted to raise the lack of a Certificate as an affirmative defense, which party had the burden of establishing the defendant’s actual licensing status?