Texas 2009 - 81st Regular

Texas House Bill HB818 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	81R27278 TJS-F
2	2	By: Eiland H.B. No. 818
3	3	Substitute the following for H.B. No. 818:
4	4	By: Martinez C.S.H.B. No. 818
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to indemnification provisions in construction contracts.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 130.002(a), Civil Practice and Remedies
12	12	Code, is amended to read as follows:
13	13	(a) A covenant or promise in, in connection with, or
14	14	collateral to a construction contract is void and unenforceable if
15	15	the covenant or promise provides for a person [contractor] who is to
16	16	perform the work that is the subject of the construction contract to
17	17	indemnify or hold harmless a registered architect, licensed
18	18	engineer or an agent, servant, or employee of a registered
19	19	architect or licensed engineer from liability for damage that:
20	20	(1) is caused by or results from:
21	21	(A) defects in plans, designs, or specifications
22	22	prepared, approved, or used by the architect or engineer; or
23	23	(B) negligence of the architect or engineer in
24	24	the rendition or conduct of professional duties called for or
25	25	arising out of the construction contract and the plans, designs, or
26	26	specifications that are a part of the construction contract; and
27	27	(2) arises from:
28	28	(A) personal injury or death;
29	29	(B) property injury; or
30	30	(C) any other expense that arises from personal
31	31	injury, death, or property injury.
32	32	SECTION 2. The Civil Practice and Remedies Code is amended
33	33	by adding Title 10 to read as follows:
34	34	TITLE 10. ADDITIONAL MISCELLANEOUS PROVISIONS
35	35	CHAPTER 502. INDEMNITY PROVISIONS IN CONSTRUCTION CONTRACTS
36	36	Sec. 502.001. DEFINITIONS. In this chapter:
37	37	(1) "Claim" includes a loss or liability for a claim,
38	38	damage, expense, or governmentally imposed fine, penalty,
39	39	administrative action, or other action.
40	40	(2) "Construction contract" means a contract,
41	41	subcontract, or agreement, or a performance bond assuring the
42	42	performance of any of the foregoing, entered into or made by an
43	43	owner, architect, engineer, contractor, construction manager,
44	44	subcontractor, supplier, or material or equipment lessor for the
45	45	design, construction, alteration, renovation, remodeling, repair,
46	46	or maintenance of, or for the furnishing of material or equipment
47	47	for, a building, structure, appurtenance, or other improvement to
48	48	or on public or private real property, including moving,
49	49	demolition, and excavation connected with the real property. The
50	50	term includes an agreement to which an architect, engineer, or
51	51	contractor and an owner's lender are parties regarding an
52	52	assignment of the construction contract or other modifications
53	53	thereto.
54	54	(3) "Indemnitor" means a party to a construction
55	55	contract that is required to provide indemnification or additional
56	56	insured status to another party to the construction contract or to a
57	57	third party.
58	58	Sec. 502.002. PERMISSIBLE CONTRACT PROVISION. Parties may
59	59	agree in a construction contract upon an indemnity or additional
60	60	insured provision that is not prohibited by this chapter.
61	61	Sec. 502.003. AGREEMENT VOID AND UNENFORCEABLE. Except as
62	62	provided by Section 502.004, a provision in a construction
63	63	contract, or in an agreement collateral to or affecting a
64	64	construction contract, is void and unenforceable as against public
65	65	policy to the extent that it requires an indemnitor to indemnify,
66	66	hold harmless, or defend another party to the construction contract
67	67	or a third party against a claim caused by the negligence or fault,
68	68	the breach or violation of a statute, ordinance, governmental
69	69	regulation, standard, or rule, or the breach of contract of the
70	70	indemnitee, its agent or employee, or any third party under the
71	71	control or supervision of the indemnitee, other than the indemnitor
72	72	or its agent, employee, or subcontractor of any tier.
73	73	Sec. 502.004. EXCEPTION FOR EMPLOYEE CLAIM. Section
74	74	502.003 does not apply to a provision in a construction contract
75	75	that requires a person to indemnify, hold harmless, or defend
76	76	another party to the construction contract or a third party against
77	77	a claim for the bodily injury or death of an employee of the
78	78	indemnitor, its agent, or its subcontractor of any tier.
79	79	Sec. 502.005. UNENFORCEABLE ADDITIONAL INSURANCE
80	80	PROVISION. A provision in a construction contract that requires
81	81	the purchase of additional insured coverage, or any coverage
82	82	endorsement or provision within an insurance policy providing
83	83	additional insured coverage, is void and unenforceable to the
84	84	extent that it requires or provides coverage the scope of which is
85	85	prohibited under this chapter for an agreement to indemnify, hold
86	86	harmless, or defend.
87	87	Sec. 502.006. EXCLUSIONS. This chapter does not affect:
88	88	(1) an insurance policy, including a policy issued
89	89	under an owner-controlled or owner-sponsored consolidated
90	90	insurance program or a contractor-controlled or
91	91	contractor-sponsored consolidated insurance program, except a
92	92	policy under Section 502.005;
93	93	(2) a cause of action for breach of contract or
94	94	warranty that exists independently of an indemnity obligation;
95	95	(3) a provision in a construction contract that
96	96	requires the indemnitor to purchase or maintain insurance covering
97	97	the acts or omissions of the indemnitor;
98	98	(4) indemnity provisions contained in loan and
99	99	financing documents, other than construction contracts to which the
100	100	contractor and owner's lender are parties as provided under Section
101	101	502.001(2);
102	102	(5) general agreements of indemnity required by
103	103	sureties as a condition of execution of bonds for construction
104	104	contracts;
105	105	(6) the benefits and protections under the workers'
106	106	compensation laws of this state;
107	107	(7) the benefits or protections under the governmental
108	108	immunity laws of this state;
109	109	(8) agreements subject to Chapter 127; or
110	110	(9) a license agreement between a railroad company and
111	111	a person that permits the person to enter the railroad company's
112	112	property as an accommodation to the person for work under a
113	113	construction contract that does not primarily benefit the railroad
114	114	company.
115	115	Sec. 502.007. LIABILITY INSURANCE. This chapter does not
116	116	otherwise affect a construction contract provision that requires a
117	117	party to the contract to purchase:
118	118	(1) owners and contractors protective liability
119	119	insurance;
120	120	(2) railroad protective liability insurance;
121	121	(3) contractors all-risk insurance; or
122	122	(4) builders all-risk insurance.
123	123	Sec. 502.008. PROHIBITION OF WAIVER. The provisions of
124	124	this chapter may not be waived by contract or otherwise. Any
125	125	purported waiver is void and unenforceable.
126	126	Sec. 502.009. APPLICABILITY OF TEXAS LAW. Under this
127	127	chapter, the law of this state, exclusive of this state's
128	128	choice-of-law rules that would apply the laws of another
129	129	jurisdiction, shall apply to every construction contract agreement
130	130	affecting improvements to real property within this state.
131	131	SECTION 3. Section 2252.902, Government Code, is repealed.
132	132	SECTION 4. The changes in law made by this Act apply only to
133	133	an original construction contract with an owner of an improvement
134	134	or contemplated improvement that is entered into on or after the
135	135	effective date of this Act. If an original construction contract
136	136	with an owner of an improvement or contemplated improvement is
137	137	entered into on or after the effective date of this Act, the changes
138	138	in law made by this Act apply to a related subcontract, purchase
139	139	order contract, personal property lease agreement, and insurance
140	140	policy. If an original construction contract with an owner of an
141	141	improvement or contemplated improvement is entered into before the
142	142	effective date of this Act, that original construction contract and
143	143	a related subcontract, purchase order contract, personal property
144	144	lease agreement, and insurance policy are governed by the law in
145	145	effect immediately before the effective date of this Act, and that
146	146	law is continued in effect for that purpose.
147	147	SECTION 5. This Act takes effect September 1, 2009.