Beware the Duty to Defend Language in Contracts with Architects and Engineers
It is the job of the Virginia legislature to make and change the laws of our Commonwealth. Sometimes, these new or changed laws are plastered all over the news. More often than not, new and changed laws are put into effect with little to no publicity. Nevertheless, there they are, ready to be used as a tool, or weapon, when the time presents itself.
Despite the world’s reaction to COVID-19, the Virginia legislature was hard at work in 2020. Part of its work included amending an existing law concerning indemnification provisions in contracts with design professionals. Historically, indemnification provisions included a duty to defend. In 2020, the Virginia legislature changed this rule, following a popular trend among other state legislatures, by adding the following paragraph to Va. Code § 11-4.4:
Any provision contained in any contract relating to the planning or design of a building, structure, or appurtenance thereto, including moving, demolition, or excavation connected therewith, or any provision contained in any contract relating to the planning or design of construction projects by which any party purports to impose a duty to defend on any other party to the contract, is against public policy and is void and unenforceable.
This amendment is important, but it has gone largely unnoticed by owners, contractors, and design professionals. As a result, for all qualifying contracts after 2020, the inclusion of a “duty to defend” obligation will render the entire provision void and unenforceable. Keep in mind that this new paragraph in Va. Code § 11-4.4 concerns any provision, not just indemnification provisions. Thus, owners, contractors, and design professionals must all be on the lookout for “duty to defend” provisions going forward, or else risk having numerous provisions of their contracts stricken.
As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure.” When dealing with design professional contracts, that ounce of prevention is taking the time to properly prepare, review, and negotiate your contracts before signing them.