Pool construction contract question

7 years ago

Hello. We have been interviewing pool contractors to find the right type of pool, good contractor, etc. I finally found one that we really like, he checks all the right boxes in terms of experience, references and more. When I asked to review the contract, I found this clause below that it sounds like he will not change. In this clause, I am the "owner" and he is the "contractor" being referenced.

"Owners agree to defend, indemnify and hold Contractor (and its insurers)

harmless from any liability claims, damages, costs, expenses or losses (including reasonable attorney's fees and all litigation costs) arising out of or for any injury to any third party that may occur during the construction of the pool at the pool construction site or related to construction of the pool."

It seems crazy that I would agreed to defend and indemnify him. If anything, I'm thinking it should be the other way around. I asked him to remove this paragraph as he is carrying insurance for exactly this sort of stuff. He seemed disinterested and told me no clients ever had a problem with it--including some who were attorneys. I'm not an attorney but I do not see why I would agree to this clause.

I'm looking to see if others have seen this type of wording in pool contracts. Is this normal?

Thank you.

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Comments (5)

K R
7 years ago
I think that’s standard legalese. That’s why you have home owners insurance. A neighbor could walk into your yard, get injured in your pool, and sue your HOI. I would not be concerned with it.
User
Original Author
7 years ago
Karen-Appreciate the note. I respectfully don't agree with the conclusion. I have home owners insurance to protect me for MY negligence. I gave this contract to my insurance agent and asked if I would have coverage and was told probably not. This clause reads that I'm protecting a contractor for HIS negligence.

It's one thing if I have a pool, someone visits and gets hurt, and it's due to my negligence and I get sued. This contract says I'm covering this contractor for people hurt during construction (and that would include HIS negligence).

I'm happy to be corrected by an attorney (or maybe an insurance agent) who can tell me I'm wrong.
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User
Original Author
7 years ago
As noted in my original post, alreadg gave it to my insurance agent....

Thanks.
User
7 years ago
This isn't necessarily for negligence. Suppose you have visitors to your house who decide they want to see the pool under construction. They go outside and trip over some building material. There's no negligence, just an accident. The pool contractor doesn't want to be held liable.
User
Original Author
7 years ago
Thanks for the note. It isn't "necessarily" for negligence, but the wording does not make an exception along the lines of...this doesn't apply in the case of the Contractor's negligence. The wording makes it apply to their negligence by how broad it is.

I ended up doing a conference call with my insurance company. There is personal liability for "insured contracts" but they admitted it gets messy in the event of a real claim. Insurance coverage defense vs liability issues become messy. It's a poorly worded clause in the contract.