Senate Bill sb1710c1

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    Florida Senate - 2004                           CS for SB 1710

    By the Committee on Banking and Insurance; and Senators
    Dockery and Bennett




    311-2323-04

  1                      A bill to be entitled

  2         An act relating to construction contracts;

  3         amending s. 725.06, F.S.; including promises to

  4         insure or obtain insurance for certain parties

  5         to construction contracts for certain actions

  6         as void and unenforceable; providing

  7         exceptions; providing for limited liability

  8         protection for additional insured coverage

  9         under certain agreements or contracts;

10         prohibiting a contractor or subcontractor from

11         withholding payment to certain subcontractors,

12         sub-subcontractors, or materialmen under

13         certain insurance policies under certain

14         circumstances; providing conditions; revising

15         application; providing an effective date.

16  

17  Be It Enacted by the Legislature of the State of Florida:

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19         Section 1.  Section 725.06, Florida Statutes, is

20  amended to read:

21         725.06  Construction contracts; limitation on

22  indemnification; agreements to insure.--

23         (1)  Except as otherwise provided in paragraphs (a),

24  (b), and (c), any portion of any agreement or contract for or

25  in connection with, or any guarantee of or in connection with,

26  any construction, alteration, repair, or demolition of a

27  building, structure, appurtenance, or appliance, including

28  moving and excavating associated therewith, between an owner

29  of real property and an architect, engineer, general

30  contractor, subcontractor, sub-subcontractor, or materialman

31  or any combination thereof wherein any party referred to

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    Florida Senate - 2004                           CS for SB 1710
    311-2323-04




 1  herein promises to have someone named an additional insured

 2  under his or her insurance policy, indemnify, defend, or hold

 3  harmless another person the other party to the agreement,

 4  contract, or party guarantee for liability or for damages to

 5  persons or property caused in whole or in part by any act,

 6  omission, or default of the person or party being indemnified

 7  indemnitee arising from the contract or its performance, shall

 8  be void and unenforceable as against public policy. However,

 9  this provision shall not be construed to place limits on

10  indemnity agreements that are only between a general

11  contractor and the owner of real property as long as unless

12  the contract contains a monetary limitation on the extent of

13  the indemnification that bears a reasonable commercial

14  relationship to the contract and is part of the project

15  specifications or bid documents, if any. Notwithstanding the

16  foregoing, the monetary limitation on the extent of the

17  indemnification provided to the owner of real property by any

18  party in privity of contract with such owner shall not be less

19  than $1 million per occurrence, unless otherwise agreed by the

20  parties. However, such indemnification shall not include

21  claims of, or damages resulting from, gross negligence, or

22  willful, wanton, or intentional misconduct of the indemnitee

23  or its officers, directors, agents, or employees, or for

24  statutory violations or punitive damages except and to the

25  extent the statutory violation or punitive damages are caused

26  by or result from the negligent acts, omissions, or default of

27  the indemnitor or any of the indemnitor's contractors,

28  subcontractors, sub-subcontractors, materialmen, or agents of

29  any tier or their respective employees.

30         (a)  Indemnification provisions in any such agreements,

31  contracts, or guarantees may not require that the indemnitor

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    Florida Senate - 2004                           CS for SB 1710
    311-2323-04




 1  indemnify the indemnitee for damages to persons or property

 2  caused in whole or in part by any act, omission, or default of

 3  a party other than:

 4         1.(a)  The indemnitor; or

 5         2.(b)  Any of the indemnitor's contractors,

 6  subcontractors, sub-subcontractors, materialmen, or agents of

 7  any tier or their respective employees; or

 8         (c)  The indemnitee or its officers, directors, agents,

 9  or employees. However, such indemnification shall not include

10  claims of, or damages resulting from, gross negligence, or

11  willful, wanton or intentional misconduct of the indemnitee or

12  its officers, directors, agents or employees, or for statutory

13  violation or punitive damages except and to the extent the

14  statutory violation or punitive damages are caused by or

15  result from the acts or omissions of the indemnitor or any of

16  the indemnitor's contractors, subcontractors,

17  sub-subcontractors, materialmen, or agents of any tier or

18  their respective employees.

19         (b)(2)  A construction contract for a public agency or

20  in connection with a public agency's project may require a

21  party to that contract to indemnify and hold harmless the

22  other party to the contract, their officers and employees,

23  from liabilities, damages, losses and costs, including, but

24  not limited to, reasonable attorney's fees, to the extent

25  caused by the negligence, recklessness, or intentional

26  wrongful misconduct of the indemnifying party and persons

27  employed or utilized by the indemnifying party in the

28  performance of the construction contract.

29         (c)  Any portion of any agreement or contract for or in

30  connection with, or any guarantee of or in connection with,

31  any construction, alteration, repair, or demolition of a

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    Florida Senate - 2004                           CS for SB 1710
    311-2323-04




 1  building, structure, appurtenance, or appliance, including

 2  moving and excavating associated therewith, between an entity

 3  regulated by the Florida Public Service Commission and an

 4  architect, engineer, general contractor, subcontractor,

 5  sub-subcontractor, or materialman or any combination thereof

 6  wherein any party referred to herein promises to indemnify or

 7  hold harmless the other party to the agreement, contract, or

 8  guarantee for liability for damages to persons or property

 9  caused in whole or in part by any negligent act, omission, or

10  default of the indemnitee arising from the contract or its

11  performance, shall be void and unenforceable unless the

12  contract contains a monetary limitation on the extent of the

13  indemnification that bears a reasonable commercial

14  relationship to the contract and is part of the project

15  specifications or bid documents, if any. Notwithstanding the

16  foregoing, the monetary limitation on the extent of the

17  indemnification provided to the owner of real property by any

18  party in privity of contract with such owner shall not be less

19  than $1 million per occurrence, unless otherwise agreed to by

20  the parties. Indemnification provisions in any such

21  agreements, contracts, or guarantees may not require that the

22  indemnitor indemnify the indemnitee for damages to persons or

23  property caused in whole or in part by any act, omission, or

24  default of a party other than:

25         1.  The indemnitor;

26         2.  Any of the indemnitor's contractors,

27  subcontractors, sub-subcontractors, materialmen, or agents of

28  any tier or their respective employees; or

29         3.  The indemnitee or its officers, directors, agents,

30  or employees. However, such indemnification shall not include

31  claims of, or damages resulting from, gross negligence or

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    Florida Senate - 2004                           CS for SB 1710
    311-2323-04




 1  willful, wanton, or intentional misconduct of the indemnitee

 2  or its officers, directors, agents, or employees, or for

 3  statutory violation or punitive damages except and to the

 4  extent the statutory violation or punitive damages are caused

 5  by or result from the acts or omissions of the indemnitor or

 6  any of the indemnitor's contractors, subcontractors,

 7  sub-subcontractors, materialmen, or agents of any tier or

 8  their respective employees.

 9         (2)  If, as part of any agreement or contract for or in

10  connection with, or any guarantee of or in connection with,

11  any construction, alteration, repair, or demolition of a

12  building, structure, appurtenance, or appliance, including

13  moving and excavating associated with such activities, between

14  or among an architect, engineer, general contractor,

15  subcontractor, sub-subcontractor, or materialman or any

16  combination of such persons, a policy of insurance extends

17  certain coverage rights to an additional insured for liability

18  arising out of the acts, errors, or omissions of the named

19  insured, such additional insured coverage shall only provide

20  liability protection to the additional insured for the imputed

21  or vicarious liability imposed on the additional insured as a

22  direct consequence of the negligent acts or omissions of the

23  named insured.

24         (3)  If a written contract requires a subcontractor,

25  sub-subcontractor, or materialman to provide a policy of

26  insurance or a certificate of insurance to a general

27  contractor or subcontractor, extending specific coverage

28  rights to an additional insured:

29         (a)  The general contractor or subcontractor may at any

30  point prior to the date the subcontractor, sub-subcontractor,

31  

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    Florida Senate - 2004                           CS for SB 1710
    311-2323-04




 1  or materialman commences work or delivers material to the

 2  project, accept or reject the policy as being nonconforming.

 3         (b)  If not rejected, the general contractor or

 4  subcontractor shall be deemed to have accepted the policy and

 5  the general contractor or subcontractor may not use the lack

 6  of conforming insurance as a reason to reject work already

 7  completed by a subcontractor or sub-subcontractor, or material

 8  already supplied by the materialman, or withhold payment to

 9  the subcontractor, sub-subcontractor, or materialman for work

10  already completed or material already supplied. However, this

11  section does not apply if the certificate was fraudulently

12  issued by the agent or insurer or reflects coverages or

13  conditions not contained in the underlying policy. This

14  subsection also does not apply if the policy is cancelled,

15  nonrenewed, or is materially and adversely altered during the

16  term of the contract. Except as specifically provided in

17  subsection (2), a construction contract for a public agency or

18  in connection with a public agency's project may not require

19  one party to indemnify, defend, or hold harmless the other

20  party, its employees, officers, directors, or agents from any

21  liability, damage, loss, claim, action, or proceeding, and any

22  such contract provision is void as against public policy of

23  this state.

24         (4)  This section does not affect any contracts,

25  agreements, or guarantees entered into before the effective

26  date of this section or any renewals thereof.

27         Section 2.  This act shall take effect upon becoming a

28  law.

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    Florida Senate - 2004                           CS for SB 1710
    311-2323-04




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1710

 3                                 

 4  A certificate of insurance required in connection with a
    construction contract is not deemed accepted by a general
 5  contractor or subcontractor if the certificate was
    fraudulently issued, reflects coverage not contained in the
 6  policy, or if the underlying policy is cancelled, non-renewed,
    or materially and adversely altered during the term of the
 7  contract.

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