May 28, 2026
You installed plumbing systems on a project. Now you find yourself stuck in a construction defect lawsuit, alongside the general contractor and other subcontractors. You review the owner’s complaint and see that, while perhaps the word “plumbing” appears once, the claim obviously focuses on other building components totally unrelated to plumbing – stucco, roof, or window defects, for example. In other words, you’re stuck in the stucco case, and you didn’t install stucco.
You want to get out of the case, but the other parties ignore your request for an early carve-out settlement and your lawyer tells you that you may be along for the ride until at least a mediation. What’s going on here?
For better or for worse, your subcontract probably has a well-worded defense and indemnity clause. The “defense” obligation typically means that the subcontractor will assume the defense of a general contractor when the general contractor is sued in relation to the subcontractor’s work.
Although the breadth of a subcontractor’s defense obligation is not fully settled, similar case law in the insurance context suggests that the duty to defend is likely broad and triggered by the allegations – not proof or evidence – in the plaintiff’s complaint.
In other words, even though we may know that a case is truly a stucco case, the plumber may still not be able to escape for some time. If the word “plumbing” is used in the complaint, the general contractor may have an argument that this triggers the subcontractor’s duty to defend regardless of the merits of the underlying claim.
Florida’s duty-to-defend system is complex and may not always seem fair, but it does have a purpose.
If You’re a Subcontractor
Taking a close look at any contract before signing is critical. Understanding your defense obligations before you take on the work is the best protection available. Consulting with an attorney before signing can help determine if there is anything you can do to negotiate your future liability.
If You’re a General Contractor
Getting stuck holding the bag when a lawsuit is filed is a real risk. Subcontracts should have strong defense, indemnity, and additional insured provisions so that the downstream claims can be properly filed and pursued. Critically, the corporate name used in the subcontract must match the name on the contract with the owner, and all contracts should be fully executed by both parties before work begins.
The Quagmire, Avoided
Investing in well-structured contracts on the front end can prevent a lot of headaches later on. Whether you are a general contractor or subcontractor, structuring contracts that protect your position is worth the effort before a dispute arises. This is the duty-to-defend quagmire, and it catches subcontractors off guard more often than it should.
Questions?
Contact GrayRobinson Shareholder Rick Rowe, B.C.S., or a member of the Construction Team.