To paraphrase Lloyd Dobler’s pal Denny in the movie Say Anything, your construction contract (like your Malibu) is your castle. A dispute (and a lawsuit) can be won or lost on the verbiage contained in a document executed months before the first nail is driven. Why then are so many contracts one-sided (i.e., indemnity language)? Do all subcontractors lack so much negotiating leverage that they would essentially sign anything to get the work? This is often the case – leverage seemingly flows downhill from the owner to the general contractor to the subcontractor. Then, to make matters worse, when you get to the suppliers, who have credit agreements with personal guarantees, the leverage once again turns against the subcontractors.
The reality, though, is that owners depend on good GCs, and good GCs depend on good subcontractors to keep them afloat. Without good subcontractors doing the work for general contractors that do not self-perform much work, these general contractors will not do quality and timely work and will lose business. In short, subcontractors likely have more leverage than they think, particularly when they carefully read the contracts and negotiate out certain particularly onerous terms.
Of course both sides of a contract negotiation will try and tilt the contract in their favor. This can lead to provisions that are clearly slanted one way or the other if those provisions are not hammered “flat” prior to the project’s beginning (for instance, “pay when paid” clauses).
In Florida, both sides can make their own rules contained within the contract. Retain an experienced construction attorney early in the process. The cost you pay now will be worth it in the future. And most of all, make sure you don’t just Sign Anything, and end up getting “dissed in the Malibu.”