Waiver Of Subrogation: Indiana Court Of Appeals Adopts Majority View

In a recent case examining a contractual waiver of subrogation, the Indiana Court of Appeals adopted the “majority approach” in concluding that an owner waived its right to subrogate any and all claims covered by its property insurance.

Facts: Jefferson County entered into a contract with Teton Corp. to renovate a building. The AIA contract required Jefferson County, as owner of the project, to obtain a separate property or builder’s risk insurance policy for the project, while Teton was to obtain contractor’s liability insurance. The county did not obtain the additional insurance and relied on its existing property and casualty insurance.

Subsequently, a fire during construction caused approximately $6 million in damages. The county’s general insurance policy did not cover all of the damages, and the county sued Teton to recover damages. Teton defended by arguing that the waiver of subrogation clause prevented the county from recovering damages e caused by the fire. Jefferson County argued that under the contract, Teton was responsible for procuring insurance to cover damages for claims “other than to the Work.”

Decision: The Indiana Court of Appeals followed the “majority view” which rejects the “work” verse “non-work” approach. The court held that using the “minority view” and differentiating between “work” and “non-work” would “throw many projects into protracted litigation, possibly even years after project completion and acceptance.”

The Court of Appeals held:

The AIA contract expressly requires property owners to separately insure these interests and, in order to facilitate the completion of the project without delaying and debilitating litigation, to obtain an ‘all-risk’ insurance policy that waives the carrier’s rights to be subrogated to any loss arising within the extremely broad coverage described in the contract. If the owner does not secure such insurance, then it still waives its subrogation rights for any loss described within the AIA contract that it sustains.”

A lesson to take from this case is to make sure you understand your contractual insurance requirements. It is always a good idea to contact your insurance agent or attorney to make sure you have the proper insurance in place. Waiver of subrogation claims are more prevalent in construction contracts and its vital you understand what you are waiving.

By: Roy Rodabaugh is an attorney focusing in the area of construction law