总理承包商和分包商签署了有义务他们捍卫，赔偿和确保上游合同当事方，所有者在主要承包商的情况下以及分包商的主要承包商。

Sometimes where an owner blames a contractor for damages, multiple subcontractors are involved. In that case, the prime contractor appoints one defense counsel to defend the prime contractor in the dispute and the costs of defense of the prime contractor might be shared among the various subcontractors’ insurers.

If, for some reason, a subcontractor’s insurer is not paying or is slow in paying the prime contractor’s attorneys’ fees, is the prime contractor compelled to argue with the insurer and await payment or is the subcontractor itself liable to pay the fees and itself argue with the insurer for reimbursement? That was the question in The Weitz Company, LLC v. MacKenzie House, LLC, 2010 U.S. Dist. LEXIS 45440 (W.D. Mo. May 6, 2010).

In MacKenzie House, the Weitz Company, LLC was the general contractor and MacKenzie House, LLC the owner for construction of residential towers. Horizon Plumbing was one of multiple subcontractors.

分包合同要求分包商:“德fend, indemnify and hold harmless the Owner, Contractor, Architect . . . from and against claims, damages, losses and expenses, including but not limited to attorney’s fees and loss of use … , to the extent arising out of or resulting from the performance by [subcontractor] of its Work under the Subcontract Documents or any breach of any provisions of the Subcontrct [sic] Documents by [subcontractor].”

The subcontract also contained a separate attorneys’ fees provision mandating, that if “if either party was required to institute legal proceedings against the other party for recovery of any amounts due and owing under the Agreement… the prevailing party in any such action shall be entitled to recover … all costs, including reasonable attorney’s fees…”

The subcontract further required that the subcontractor provide insurance to general contractor.

双方对延误的责任提出异议。总承包商起诉所有者，要求根据Prime合同索赔。所有者反诉对延迟和完成的其他费用进行了违反损害。新利18备用官网登录然后，承包商起诉了几个分包商，包括管道分包商，以涉及部分延迟。所有者还直接起诉管道分包商。

关于管道分包商的延迟责任的主要问题涉及未能连接项目塔中的两个阳台排水连接。据称，累积的水造成了水分损伤维修费用o 334,000和84天的延迟。新利18备用官网登录

In a settlement, the owner dismissed the plumbing subcontractor and general contractor regarding the water damage and related delays. General contractor’s attorneys’ fees were $611,731.50 but, at the time of settlement, the plumbing subcontractor’s insurer had paid only $3,803.50.

General contractor sought recovery of its attorneys’ fees spent to defend owner’s claims related to the water damage and associated delays from plumbing subcontractor directly.

The plumbing subcontractor did not deny it had a contractual obligation to defend the general contractor for owner’s claims involving subcontractor’s work. But plumbing subcontractor argued it had; plumbing subcontractor had provided insurance.

Not good enough, said the MacKenzie House court:

“[General contractor] did not bargain for [subcontractor] to obtain insurance to which [general contractor] could submit invoices - - it bargained for [subcontractor] to pay legal costs. [General contractor] is not obligated to submit invoices to [subcontractor’s insurer] as a substitute for the performance it bargained for.”

MacKenzie House, 2010 U.S. Dist. LEXIS 45440, * 8.

In the first instance, plumbing subcontractor was obligated to pay general contractor. It then was up to the subcontractor to wrangle with the insurer to pay the invoices. (The court surmised the insurer’s objection might have been to the amount of the fees.)

该案继续解释说，管道分包商的义务将为30,391.50美元，用于与管道分包商的工作有关的任务费用和15％的“普通费”和“收费费”。

在做出决定时，麦肯齐豪斯法院认为，总承包商无能为力，“实施自身与[保险公司]之间的任何协议”。该决定没有讨论总承包商是否是“额外的被保险人”。如果总承包商是“额外的被保险人”，则可能不适用Mackenzie House的推理。