James Duffy O'Connor Publishes in The Journal of the American College of Construction Lawyers
February 26, 2007
Jim O'Connor's article "Wrestling with Reform: Indemnification Agreements, The Statutory Bars, Promises to Procure, and Insurance Products for the Construction Industry" was published in the February 2007 edition of The Journal of the American College of Construction Lawyers. The Journal is published by Thomson West and can be ordered from www.west.thomson.com.
"Wrestling With Reform: Indemnification Agreements, The Statutory Bars, Promises to Procure and Insurance Products for the Construction Industry" is a 77-page law review article with over 240 footnote references. The article traces the evolution of judicial models used by the courts to evaluate whether indemnification is legally permitted between Owners, Contractors and Subcontractors. It proposes a clause that conforms, where possible, with the statutory restrictions enacted by 44 states. It analyzes the statutory bars prohibiting or restricting the risk transference device, and proposes an independent promise to procure insurance that accomplishes the intent of the device in all but 3 states. Finally, it discusses the insurance products being offered to the construction industry today to secure the promise of indemnification, including the current Additional Insured controversy.
Coincidentally, the Maslon Construction Group has produced what is called The Maslon National Indemnity Program, a digital interactive web-based product that collects in one place indemnity agreements that correspond with the decisional law and statutory criteria of all the 50 states and the District of Columbia. We offer as a service to our clients to set up a secure website where the clauses are modified to replicate in font and size the contract forms of the client and updated regularly so that they remain current with the changing laws of each of the states. When changes in the law require changes in the language of the clauses, the clients are automatically advised of the change by e-mail. The clauses are available to the client 24-7-365, and may be accessed without the need to involve an attorney. Questions may be posted at the site too and are typically answered within a matter of hours.
Jim O'Connor is a partner and head of Maslon's Construction Law Group.