ASA, ASA of Colorado argue subs shouldn’t have to pay for construction defect damages
On Nov. 14, 2008, the American Subcontractors Association and ASA of Colorado filed an amicus curiae, or “friend of the court,” brief urging the Colorado Court of Appeals to reject a design-build contractor’s contention that it should be able to shift liability for its design errors to faultless subcontractors, according to a Nov. 25 ASA release. ASA and ASAC tapped ASA’s Subcontractors Legal Defense Fund to pay the fees for preparing and filing their brief opposing this shifting of risk to subcontractors in D.R. Horton, Inc. v. BD Foundations, et al.
In their brief, ASA and ASAC asked the appeals court to uphold a trial court’s ruling that the faultless subcontractors did not have to pay for the damage caused by design-build contractor D.R. Horton’s design errors, according to the release. D.R. Horton settled a suit with homeowners and asked the trial court to enforce an indemnity clause by entering a judgment against subcontractors that indemnified, but would not settle with, D.R. Horton. ASA and ASAC noted: “Neither Colorado law nor good public policy supports the conclusion that a non-negotiable ‘take it or leave it’ subcontract indemnity clause can be wielded as a tool to not only force subcontractors to pay for damages caused by others, but to deprive them of the right to defend their work,” according to the release.