Inside this Issue

A1 - No Equitable Relief for Contractor that Failed to Comply with Specifications Requiring Wiring Conduit Even Though Government Inspectors Didn’t Object Until Late in the Job. No Estoppel against Government.
A2 - CGL Carrier Owes No Duty to Defend Design-Builder against Project Owner’s Counterclaim alleging Damages from Defective Work
A3 - Economic Loss Doctrine Prohibits Claim by One Subcontractor against Another for Economic Losses Caused by Delay
A4 - Waiver of Subrogation Clause In Owner’s AIA Contract Prevents a Contractor from being Sued in a Contribution Action by another Contractor as a Joint Tortfeasor

Article 1

No Equitable Relief for Contractor that Failed to Comply with Specifications Requiring Wiring Conduit Even Though Government Inspectors Didn’t Object Until Late in the Job. No Estoppel against Government.

Watts Constructors, LLC (Watts) was required to remove and replace electrical wiring because it failed to comply with contract specifications requiring wiring to be installed inside rigid conduit. Armed Services Board of Contract Appeals (ASBCA) found that Watt’s electrical subcontractor “saw what it wished to see when it reviewed the contract’s plans and specifications and used metal clad (MC) cable instead of the required rigid conduit. Although the use of the MC cable was observed by the government’s quality assurance inspectors from the Army Corps of Engineers and not objected to until late in the game, the government was not estopped from rejecting the cable and requiring it to be removed and replaced when a higher ranking quality assurance inspector more knowledgeable with the conduit requirements inspected the project and learned of the deviation from the specifications. The court stated, “though it would have been far better for the quality assurance inspectors from the Corps to have recognized and halted Helix’s divergence from the requirements of the contract, their inaction did not change the meaning of the contract and was insufficient to support a finding of waiver of contractual compliance by the government.” Appeal of Watts Constructors, LLC, 20-1 BCA P 37563 (ASBCA), ASBCA No 61493, 2020 WL 1867740.

Watts was awarded a contract with the U.S. Army to build a facility for satellite communications on Camp Roberts, California. It subcontracted the electrical work to Helix Electric, Inc. (Helix). The electrical specifications relevant to this dispute provided:

Execution, part: “3.1.3 Wiring Methods

Provide insulated conductors installed in rigid steel conduit, IMC [a type of conduit], rigid nonmetallic conduit, or EMT [another type of conduit], except where specifically indicated or specified otherwise or required by NFPA 70 to be installed otherwise.”

The Board stated that the Corps has an institutional preference for utilizing rigid conduit as described in this specification and that Helix personnel were well aware of this general desire, but held their own preference for power cabling, which was the use of flexible MC, which the Board states shares some characteristics with conduit but is not itself conduit.

The Board states that,

“Despite their concerns that the Corps would not permit the use of MC, Helix personnel involved in planning the construction found portions of the contract’s specifications that, they believed, permitted the use of MC cable throughout and which we note below (tr. 22-24).

Part 2 of the Interior Distribution System section of the Electrical portion of the contract’s specifications³ is titled “Products” and lists required specifications for several dozen identified electrical distribution products. One of these products is MC, and the applicable subsection provides, in its entirety:

2.8.6 Metal-Clad Cable

UL 1569, NFPA 70, Type MC cable.

(R4, tab 4 at 1886 (footnotes not in original))

A government witness characterized this portion of the contract as ““boilerplate” (tr. 150). Supporting this characterization, there are at least two other products listed in the Products category that were not applicable to the project: armored cable and flat conductor cable (tr. 177-78; R4, tab 4 at 1887 (Section 2.8.7, Armored Cable; Section 2.8.9, Flat Conductor Cable)).

The other location that MC is mentioned in the contract is in Part 3 of the specifications, labeled, “Execution.” Section 3.1, “Installation,” includes direction about how to install different items. MC is included in this section and the applicable subsection provides, in its entirety:

3.1.3.2 Metal Clad Cable

Install in accordance with NFPA 70. Type MC cable.

(R4, tab 4 at 1900).”

In reviewing these sections the Board noted that they there are several boilerplate sections describing materials and products that, IF used, would have to be done in a certain manner, but those were not germane to the actual detailed specifications applicable in this instance. Those sections would only be germane if some other section of the contract actually called for the use of the materials or products described in the boiler plate.

Editor’s Comment: This is an important point because most government contracts will contain superfluous product descriptions, and as noted by the Board here, that doesn’t mean that those boilerplate descriptions entitle the contractor to use those products. Those sections only come into play if some detailed plans and specifications make them applicable. In this particular case, Helix’s project manager conceded during testimony that “nothing in the drawings explicitly indicated the use of MC and generally agreed that the drawings required the use of conduit.”

MC Is Not Conduit

The Board states, “During the hearing and the post-trial briefing, Watts made an attempt to allege that MC was a type of conduit, and thus permissible in the contract where it demands conduit (see app. br. at 9-10; app. reply br. at 6). As a matter of fact finding, we do not find this allegation persuasive and find that MC is not conduit as referenced in the contract.”

Wiring was inspected without objection by Corps Personnel

For the first three buildings completed under the contract, about 60 percent of the wiring installed by Helix was MC wire and not inside rigid conduit. The Board found that,

“Corps personnel on site did not prevent Watts from installing MC during most of the preliminary construction of the project. In fact, on several occasions, the Corps inspected wiring installation inside walls prior to the ““closing” of the walls by the installation of drywall and made no objection to the use of MC. It is important to note, however, that the quality assurance person on site for the Corps was not primarily performing a quality assurance function for electrical work, but was focused on other disciplines.”

Government Didn’t Waive Right to Reject Non-Compliant Wiring

At some point, late in construction, the Corps Quality Assurance Electrical Engineer for the project, [ ], inspected the work already performed and determined that Watts had not complied with the contract due to its use of MC, rather than conduit. The Board noted:

“The lower level quality assurance persons on site for the Corps had never been made aware that Watts’s use of MC was in any way contra-indicated by the plans and specifications before then. There is no evidence in the record that the contracting officer or any other government employee with authority to change the contract’s requirements were aware of Watts’s use of MC in lieu of conduit throughout the project.”

The contractor argued that the government’s acquiescence to its use of MC, and the government inspectors’ beliefs that MC was permitted, provide evidence that the Corps interpreted the contract the same way Watts and Helix did. The Board acknowledged that contemporaneous interpretation of a contract prior to a dispute is entitle to some consideration by the Board, but it rejected Watts arguments here primarily because, “we do not find the contract to be ambiguous.” “Accordingly, we need not go beyond the language of the contract to divine its meaning. Even if we were inclined to go beyond the contract language here, however, we would not find the government inspectors’ inaction or their opinions on the meaning of the contract to be particularly helpful.”

The Board also noted that, “In terms of equity, the failure of Corps inspectors to halt the use of MC early in the contract, before the closure of walls and near completion of wiring work, is troubling, to say the least. Nevertheless, in terms of equity, it was also Watts’s responsibility to comply with the terms of the contract. Moreover, absent affirmative misconduct (not alleged or proved here) the government’s failure to enforce the terms of a contract is not a matter of estoppel.”

Board concluded,

“Here, there is no evidence that any government personnel knowingly waived the contractual terms inasmuch as the quality assurance representatives on site who observed the use of MC appear to have been of the opinion that it was not precluded by the contract. Moreover, as a matter of authority, under the Changes Clause, only the contracting officer is noted as having the authority to alter the terms of the contract on behalf of the government. Whether such authority may be delegated to such persons as quality assurance representatives, there is no evidence that they possessed such authority or that the contracting officer was made aware of any waiver of contract terms. Watts has proved no knowing waiver of adherence to contract terms by anybody who could do so on behalf of the government.”

The contractor attempted to argue that a notation on a drawing referencing “conduit” could not trump the detailed specification that called for rigid conduit. The Board explained even if the drawing could successfully be argued to create any ambiguity, that wouldn’t help the contractor since the basic contract premise is that specifications take priority and precedence over conflicting drawings.

Comment: This decision demonstrates several important principles of government contract law. If there is a potential ambiguity in contract documents a contractor should submit a request for information (RFI) to clarify what the documents intend. The contractor in this case didn’t do this. They just interpreted the documents how they wanted to and proceeded with no clarification or direction from the government. Detailed specifications take priority over boilerplate and drawings and any deviation from the specifications must be obtained by change order. Just because the government personnel observe non compliant work without objection when it is being installed doesn’t necessarily preclude the government from later rejecting the non-compliant work. The government is not estopped from later enforcing the terms of a contract absent affirmative misconduct by the government.

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 22, No. 6 (Jul/Aug 2020).

Article 2

CGL Carrier Owes No Duty to Defend Design-Builder against Project Owner’s Counterclaim alleging Damages from Defective Work

Design-Builder’s services were terminated by the project owner. It then sued the owner for breach of contract. The owner counter-claimed -- alleging breach of contract, breach of “implied duties of workmanlike performance and fitness for a particular purpose,” and negligence. The counterclaims related to a “multitude of design and construction issues.” When Design-Builder tendered the counterclaim to its CGL carrier the carrier filed suit seeking declaratory judgment to no coverage exists because the damages asserted in the counterclaims were not caused by an “occurrence”, i.e., an “accident.” Court held that normal expected damages from shoddy workmanship are foreseeable or expected as a matter of law and therefore the work that causes those damages is not an “accident.” Summary judgment granted for the carrier. American Family Mutual Insurance Co., v. Mid-American Grain Distributors (project owner) v. Mid-American Grain Distributors, LLC (Design-Builder), 958 F. 3d 748 (8^th Cir. Ct. Appeals, 2020).

The court stated that the only issue on appeal was whether the counter claims alleged that damages were caused by an occurrence so as to come within the scope of the CGL policy. The determining inquiry of whether an act is an “accident” is whether the insured foresaw or expected the injury or damages that resulted from the act.

In order to answer this question of foreseeability, the first thing the court considered was what it means to be foreseeable. Is it foreseeable to the actual insured, subjectively speaking, or to a reasonable insured, objectively speaking? Quickly passing by this issue, the court included that foreseeability may be “inferred as a matter of law” given the “nature or character of the act,” and the type of damages at issue. The court may infer as a matter of law, “that the insured had the relevant state of mind including coverage when the damages resulting from the insureds acts are the ‘natural and probable consequences’ of those acts.”

“Following this rationale, we ask whether [Owner’s] damages are the “normal, expected consequence” of [Design-Builder’s] allegedly shoddy work. As pleaded, [Owner’s] damages all flow directly from the “multitude of design and construction issues” with Mid-American’s work. Specifically, [Owner] claims damages in the form of costs it “has and will incur” to “investigate,” “identify,” and “correct [Design-Builder’s] defective design and workmanship” and in the form of lost profits [Owner] “has and will suffer” due to [Design-Builder’s] work…. [Owner’s] damages are the “normal, expected consequence” of [Design-Builder’s] work. They are thus foreseeable as a matter of law, so [Design-Builder’s work is not an “accident,” and thus not an “occurrence,” under the CGL.”

Comment: The court did not address whether a professional services exclusion in the CGL policy could have also been asserted by the carrier as a basis for denying coverage.

Article 3

Economic Loss Doctrine Prohibits Claim by One Subcontractor against Another for Economic Losses Caused by Delay

See similar articles: Delay Damages | Economic Loss Doctrine

Where a subcontractor on a construction project sued another subcontractor on that project for $1 million in delay damages caused by negligence, it was held that the economic loss doctrine prohibited the suit. Although the subcontractors had no contractual privity, each had a subcontract with the general contractor that addressed their individual obligations including scheduling, duty of care, and a no damage for delay clause. “Regardless of the absence of a vertical chain of contracts between the horizontal subcontractors, the economic loss doctrine bars a negligence claim for economic loss solely between them. The network of interrelated contracts contained their duties of care and contractual remedies. Thus, there is no independent tort duty owing from Mechanical to Venture to timely perform its contract with [General Contractor], or to avoid the risk of economic loss to Venture. Finding otherwise would eliminate the contract/tort distinction. It would undermine the expectancy protection afforded to GC and Mechanical when they agreed upon and defined the duties, risks, and costs. Finally, letting Venture ignore its own contract to prosecute a tort claim would discourage other parties who are typically best situated to evaluate the risk of economic loss and take appropriate measures. Because the reasons for the doctrine are present, the doctrine bars the tort claim.” Mechanical, Inc. v. Venture Electrical Contractors, Inc. 392 Wis.2d (2020).

Both subcontractors executed contracts with the general contractor agreeing to a no-damage-for-delay clause. As stated by the court, “Each subcontractor expressly agreed that it would not be entitled to make a claim for “damages or additional compensation based on delay, hindrance of work, impacts on progress, season changes, disruption, loss of productivity or efficiency, or schedule changes resulting from any cause whatsoever.” The only relief would be a time extension.

Venture Electrical alleged that its work was delayed by Mechanical, Inc. and that Mechanical owed it a duty to comply with Mechanical's schedules under its subcontract and to timely perform its project work. The trial court granted summary judgment against the suit on the basis that negligence claims for purely economic losses between the subcontractors was barred by the economic loss doctrine – and the court went on to explain in quite some detail the background on the economic loss doctrine and why it must be applied in this case. The court explained as follows:

“The subject of much litigation since, the economic loss doctrine essentially provides that “a party to a contract may not pursue tort remedies to recover solely economic losses arising out of the performance or nonperformance of the contract.” (citation omitted). (describing the “upshot” of the doctrine as the requirement that dealing parties must “pursue only their contractual remedies” when seeking economic loss) (citation omitted). The doctrine was born out of the bedrock distinctions between contract and tort law and the intent to sustain them, and these distinctions arise chiefly from the source of the party’s duty. The sources differ markedly (citation omitted).

A struck bargain is the source of the legal obligation imposed in contract law. See id. at 404, 573 N.W.2d 842. Aiming to facilitate exchanges and to protect the interests expected by each party to the bargain in allocating risks and costs, contract law holds the parties to their mutual, consensual promises, ensuring that each negotiated benefit is received. Id.

On the other hand, the protection of society is the source of the legal obligations imposed in tort law. Id. at 405, 573 N.W.2d 842. “Tort law is rooted in the concept of protecting society as a whole from physical harm to person or property,” and it aims to guard against unexpected or overwhelming misfortunes. Id.; Linden, 283 Wis. 2d 606, ¶7, 699 N.W.2d 189.

Honoring the distinction between tort and contract law, the economic loss rule generally holds purchasers to their contract remedies for loss to the product or work itself (i.e., economic loss), but not losses due to other property damage or physical injury. Secura Ins. v. Super Prods. LLC, 2019 WI App 47, ¶13, 388 Wis. 2d 445, 933 N.W.2d 161. Applicable here, economic losses arising from alleged inadequate performance of a contract include costs associated with delays and lost profits. Id.”

The economic loss doctrine has been applied in Wisconsin to parties in a direct two-party contract where the parties have an opportunity to negotiate the terms of their bargain with each other. At issue in this case is whether the doctrine also applies to interrelated subcontracts where the parties didn’t negotiate directly with each other. The court held it does, and explained its reasoning as follows:

“The State’s purpose in hiring Cullen was to construct a building, just as in Linden. Here, the prime contract of the bargaining owner (State) was with the general contractor (Cullen), and indeed, the prime contract was incorporated into each of the subcontracts, explicitly providing that duties and remedies owing between the State and Cullen would also apply to the subcontractors, to the extent of their work. We agree with the circuit court’s analysis that the owner contracted to build a $36 million construction project for a building, an addition to the Great Lakes Research Facility.

The application of the economic loss rule to the general contract, and by extension, these two non-contracting subcontractors, encourages the subcontractors on construction projects with interrelated contracts to protect themselves from risks, holds them to the terms of their bargain, enforces their expectancy interests, and maintains the boundary between contract and tort law. “It is more appropriate to enforce a bargain than to allow an end run around a contract by using tort principles.” (citation omitted).

As in Linden, Venture had the opportunity to address the risk of the economic loss it claims in this case. It had the opportunity to bargain and to define its rights and remedies, allocate risks and costs, or to decline to contract if unsatisfied with the terms. This is a commercially sophisticated party with notice that there were no direct contractual relationships with other subcontractors.

More to the point, here, Venture decidedly was aware that it would be bound by the duties and remedies associated with delays in its subcontract with Cullen. Venture’s subcontract made clear that the subcontractors’ work, and potential delays, were interrelated—as a practical matter and by contract. The subcontracts each addressed in identical fashion the claimed breach here, the duties and standards of care: with provisions addressing timeliness, work schedules, changes, and delays, requesting change orders, extensions, and remedies in the event of delays. In short, although their contractual duties ran to Cullen/UWM, the network of interrelated contracts addressed the duties that Mechanical allegedly breached and Venture’s rights in the event of delays. We see no reason to free Venture from its contractual bargain and allow it to pursue a tort claim to recover what are effectively contract damages.”

For these reasons, the court concluded that regardless of the absence of a vertical chain of contracts between the horizontal subcontractors, the economic loss doctrine bars a negligence claim for economic loss solely between them.

Article 4

Waiver of Subrogation Clause In Owner’s AIA Contract Prevents a Contractor from being Sued in a Contribution Action by another Contractor as a Joint Tortfeasor

See similar articles: joint tortfeasor | Waiver of Subrogation

An apartment building under construction caught fire and burned down, causing $22 million in damages. The fire was apparently caused by an open flame heater that was left burning at the end of a workday by the general contractor. A separate company that was under contract to the project owner to perform security and fire watch apparently failed to walk inside the buildings on the night in question and didn’t detect the open flame burner or eventual fire. The owner sued and recovered damages from the security company, which then brought a contribution action against the contractor. The question on appeal was whether a claim for contribution may arise under the UCATA when two wrongdoers are culpable for the wrong inflicted on the injured party, but only one wrongdoer is legally responsible to the injured party because of a defense arising from a contractual waiver of subrogation. Court held that the contractor owed no contribution because it wasn’t legally a joint tortfeasor. A joint tortfeasor must be liable in tort to the injured party. “Liable in tort” requires legal responsibility and common liability, not mere culpability to the injured party for a wrong. There is no right of contribution where the injured person has no right of action against the third-party defendant. The statutory right to contribution is not an independent cause of action, but is a derivative right arising out of common liability to the injured party. Gables Construction, Inc. v. Red Coats, Inc., 468 Md. 632 (2020).

Prior to construction, the general contractor (GCI, Inc.) entered into a prime contract with the project owner (Upper Rock II, LLC) to construction the apartment building. The form of contract was the AIA A201 (modified). Included in the terms of the AIA contract were the basic insurance requirements with attendant waiver of subrogation of the parties against each other for fire-related claims where there was insurance. As a result of the waiver of subrogation clause, the owner couldn't hold the contractor liability for any damages from the fire.

Section 11.3.7 provided, in pertinent part:

“The Owner [Upper Rock] and Contractor [GCI] waive all rights against (1) each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, and (2) any of their subcontractors, sub-subcontractors and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.[3] or other property insurance applicable to the Work[.]”

Read together, the court stated that the waiver of subrogation and property insurance provisions transferred the entire risk of loss by fire to the builder’s risk insurer, rather than Upper Rock and GCI, and waived all fire-related claims between Upper Rock and GCI.

GCI moved for summary judgment at the trial court but lost that motion. The matter then went to a jury, which found that the fire was a direct result and foreseeable consequence of GCI’s negligence and that GCI was liable as a joint tortfeasor for contribution in the amount of $7 million. This decision which was affirmed by the intermediate level Special Court of Appeals, was reversed by the Court of Appeals, which did an extensive analysis of the legal theory of joint tortfeasor liability and why CGI could not be deemed a joint tortfeasor. As explained by the court:

The Right to Contribution Among Joint Tortfeasors Under The UCATA

“Under the UCATA, “[t]he right of contribution exists among joint tort[ ]feasors.” CJ § 3-1402(a). The statute defines joint tortfeasors as “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” CJ § 3-1401(c). The right to contribution under the UCATA is predicated on a third-party’s direct liability to the plaintiff. See Valk, 317 Md. at 199, 562 A.2d 1246. “A joint tortfeasor must be legally responsible to the plaintiff for his or her injuries.” Id. at 200, 562 A.2d 1246. This right is also inchoate, until one joint tortfeasor has by payment discharged the common liability or has paid more than a pro rata share of the common liability. CJ § 3-1402(b); Valk, 317 Md. at 191, 562 A.2d 1246.”

Waiver of Subrogation Defense—Recognition of the General Public Policy in Maryland Jurisprudence

“This Court has recognized that the right to a claim of subrogation may be waived through a contractual waiver of subrogation. See, e.g., John L. Mattingly Constr. Co. v. Hartford Underwriters Ins. Co., 415 Md. 313, 319, 999 A.2d 1066 (2010). We have previously noted that waivers of subrogation are “prevalent in construction contracts.” Id. at 319, 999 A.2d 1066. The waiver acts as “ ‘a risk-shifting provision premised upon the recognition *750 that it is economically inefficient for parties to a contract to insure against the same risk.’” (citation omitted.)

Contractual Waiver of Subrogation Between Upper Rock and GCI

“As noted supra, the parties to the Prime Contract retained the language in the AIA standard form contract relating to the purchase of property insurance, and they retained the fundamental concepts contained in a related waiver of subrogation, as those provisions had been drafted by the AIA. Under the terms of the Prime Contract, Upper Rock contractually agreed to purchase and maintain “all-risk” property insurance, which included “insurance against the perils of fire,” Prime Contract, § 11.3.1.1, “in the amount of the ... total value for the entire Project ... on a replacement cost basis,” id. § 11.3.1, and to pay the cost of any required policy deductibles as a “Cost of the Work.” Id. § 11.3.1.3. Additionally, pursuant to § 11.3.7 of the Prime Contract, titled “WAIVERS OF SUBROGATION,” Upper Rock waived all of its rights against GCI and other participants in the project for “damages caused by fire or other causes of loss to the extent covered by property insurance ....” Id. at § 11.3.7. Those provisions placed the responsibility on Upper Rock, as the owner, to purchase and maintain a policy of property insurance on the work being performed. The waiver of subrogation provision provided that Upper Rock (and any subrogated property insurer) waive all rights against GCI, and other project participants such as subcontractors, for damages cause by fire or other causes of loss to the extent covered by property insurance.

Because of the contractual waiver, neither Upper Rock, nor its insurer, had a claim against GCI for fire-related damages. The contractual defense of waiver precluded Upper Rock’s claims against GCI from arising in the first instance. Turning to Red Coats, as set forth below, because Red Coats’ statutory claim for *751 contribution is not an independent right, but is a derivative right flowing from Upper Rock, under our established case law, Red Coats has no right of contribution because GCI was not “liable in tort” to the injured party.”

The UCATA Requires Legal Responsibility to an Injured Party, not Mere Culpability, for a Contribution Claim

“To summarize our holdings, in Maryland, any defense arising from the moment of the wrongdoing,¹⁸ which precludes legal responsibility to the injured party, also precludes liability for contribution under the UCATA. See id. at 199, 562 A.2d 1246 (explaining that, “ ‘[i]f there was never any liability [to the plaintiff], as where the contribution defendant has the defense of family immunity, assumption of the risk, or the application of an automobile guest statute, or the substitution of workers’ compensation for common law liability, then there is no liability for contribution’ ”) (quoting Prosser and Keeton § 50 at 339–40).

Just like the above-described defenses arising from immunity and contributory negligence, the defense of contractual waiver also acts as a complete bar to recovery by Upper Rock. Upper Rock contractually waived its rights against GCI for damages by fire to the extent covered by property insurance. GCI cannot be held liable to Upper Rock. Because GCI does not have common liability with Red Coats to Upper Rock, it does not fall within the definition of “joint tortfeasor” under the statute, and Red Coats has no right of contribution against GCI.”

For the foregoing reasons, the Court of Appeals reversed the lower court decisions and held, “For a statutory claim of contribution under the UCATA, parties must be joint tortfeasors. Under our decades of jurisprudence interpreting UCATA, a joint tortfeasor must be liable in tort to the injured party. 'Liable in tort' requires legal responsibility and common liability, not mere culpability to the injured party for a wrong. We have repeatedly held in other cases that there is no right of contribution where the injured person has no right of action against the third-party defendant. The statutory right to contribution is not an independent cause of action, but is a derivative right arising out of common liability to the injured party. We decline to carve out an exception from the plain language of the UCATA by treating the contractual defense of waiver of subrogation differently from other statutory and common law defenses such as immunities and contributory negligence.”

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