Attorney Article

Unwaivering Decision

CLM Construction Claims Magazine

Summer 2020

Author: Kevin A. Christensen

Kevin A. Christensen (Partner-Milwaukee) published “Unwaivering Decision” in the Summer 2020 edition of CLM’s Construction Claims magazine. The article addressed a Wisconsin Supreme Court decision under which the state joined other states in endorsing waiver of subrogation provisions. In the Wisconsin case, an insurance company paid a claim on a collapsed barn and then initiated a subrogation action against the builder. However, the insured and the builder had entered into a contract that required both to waive subrogation rights for damages otherwise covered by insurance. After trial court and court of appeals decisions agreed the provision made the subrogation action not viable, the Supreme Court upheld the use of the provision in constructions contracts, siding with Kevin, ultimately declaring that waiver of subrogation provisions are not unenforceable exculpatory contracts under Wisconsin law.

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