However the forms may read, there are some “best practices” you should adhere to when hiring subcontractors, or when you are accepting a job as a subcontractor:
Use a Contract
If you hire subcontractors, you already require them to sign a hold harmless agreement to protect yourself from covered losses arising out of their ongoing and completed operations. These contracts should contain properly worded indemnification and additional insured requirements for the subcontractor’s insurance to recognize you as an insured, and to cover you.
Many insurers use additional insured forms that contain language similar to, “additional insured status when required by written contract or agreement.” Some go as far as requiring an “executed” contract prior to the commencement of work. It’s imperative for general contractors to have a signed contract before a subcontractor begins work in order to obtain additional insured status.
See our article “Recommended Procedures & Documentation When Hiring Subcontractors” for more information on contractual insurance requirements.
Read the Contract and Understand What You are Agreeing to
If you are a subcontractor, read the contract the general contractor presents to you. Understand what you are promising when you agree to the terms and conditions of the contract. We have seen contracts ask for more than what standard insurance forms will actually do.
If you are a subcontractor of a subcontractor, be sure to obtain and read the prime contract between the general contractor and the subcontractor who is hiring you. You may be agreeing to the terms and conditions in that contract as well.
Sign the Contract
Some courts have determined that subcontractors “agreed” to provide the contractual additional insured requirement by beginning work. However, when the subcontractor caused or contributed to a loss on the job, their insurance did not respond to recognize the general contractor as an additional insured because of the absence of a previously signed (relative to the claim) or “executed” contract. This left the general contractor exposed to cover the cost of defense and indemnification with their own resources, then sued the subcontractor for a “breach of contract.”
--------------------------------------------------------------------This article is reposted with permission from Mason & Mason. Find this article (and other great content) at:https://www.masonandmasoninsurance.com/why-you-should-use-hold-harmless-agreements-and-sign-them/Mason & Mason is a long time EM NARI member and 2018 Silver Corporate Sponsor. To reach Brian, contact him at:Brian Robertson | Account Executive, Construction Industry ServicesMason & Mason Insurance Agency, Inc.Agency: (781) 447-5531| Direct: (781) 523-0062www.masonandmasoninsurance.com
Mason & Mason is an insurance agency. We are not members of the Massachusetts Bar Association, the information above is for informational purposes only. We strongly suggest you consult an attorney before making any decision on the wording and/or use of legal contract documents.