As Reported by House Commerce and Labor Committee 1
123rd General Assembly 4
Regular Session Sub. H. B. No. 491 5
1999-2000 6
REPRESENTATIVES WILLAMOWSKI-NETZLEY-TAYLOR-SCHULER- 8
TERWILLEGER-TIBERI-VAN VYVEN-WINKLER-CORBIN-EVANS- 9
HOLLISTER-ROMAN-HARTNETT-WILLIAMS-VERICH-DISTEL-KRUPINSKI- HARRIS 11
_________________________________________________________________ 12
A B I L L
To amend section 4113.62 of the Revised Code to 14
specify that a construction contract containing a 15
provision subjecting the contract to the laws of
another state is void. 16
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 18
Section 1. That section 4113.62 of the Revised Code be 20
amended to read as follows: 21
Sec. 4113.62. (A) Any provision of a construction 31
contract, agreement, or understanding that waives rights under a 32
surety bond is void and unenforceable as against public policy. 33
(B) Any provision of a construction contract, agreement, 36
or understanding, or specification or other documentation that is 37
made a part of a construction contract, agreement, or 38
understanding, that waives any pending or asserted claim on the 39
basis of final payment made from one person to another for the 40
construction contract, agreement, or understanding, is void and 41
unenforceable as against public policy, when the person against 42
whom the claim is pending or asserted has received notice of that 43
pending or asserted claim. Nothing in this division precludes 44
parties to a construction contract, agreement, or understanding 45
from entering into a subsequent settlement agreement arising from 46
a claim under that construction contract, agreement, or 47
understanding.
(C)(1) Any provision of a construction contract, 50
2
agreement, or understanding, or specification or other 51
documentation that is made a part of a construction contract, 52
agreement, or understanding, that waives or precludes liability 53
for delay during the course of a construction contract when the 54
cause of the delay is a proximate result of the owner's act or 55
failure to act, or that waives any other remedy for a 56
construction contract when the cause of the delay is a proximate
result of the owner's act or failure to act, is void and 57
unenforceable as against public policy. 58
(2) Any provision of a construction subcontract, 60
agreement, or understanding, or specification or other 61
documentation that is made part of a construction subcontract, 62
agreement, or understanding, that waives or precludes liability 63
for delay during the course of a construction subcontract when 64
the cause of the delay is a proximate result of the owner's or 65
contractor's act or failure to act, or that waives any other
remedy for a construction subcontract when the cause of the delay 66
is a proximate result of the owner's or contractor's act or 67
failure to act, is void and unenforceable as against public 68
policy.
(D)(1) ANY PROVISION OF A CONSTRUCTION CONTRACT, 70
AGREEMENT, UNDERSTANDING, OR SPECIFICATION OR OTHER DOCUMENT OR 71
DOCUMENTATION THAT IS MADE A PART OF A CONSTRUCTION CONTRACT, 73
SUBCONTRACT, AGREEMENT, OR UNDERSTANDING FOR AN IMPROVEMENT, OR
PORTION THEREOF, TO REAL ESTATE IN THIS STATE THAT MAKES THE 75
CONSTRUCTION CONTRACT OR SUBCONTRACT, AGREEMENT, OR OTHER 76
UNDERSTANDING SUBJECT TO THE LAWS OF ANOTHER STATE IS VOID AND 78
UNENFORCEABLE AS AGAINST PUBLIC POLICY. 79
(2) ANY PROVISION OF A CONSTRUCTION CONTRACT, AGREEMENT, 81
UNDERSTANDING, SPECIFICATION, OR OTHER DOCUMENT OR DOCUMENTATION 82
THAT IS MADE A PART OF A CONSTRUCTION CONTRACT, SUBCONTRACT, 83
AGREEMENT, OR UNDERSTANDING FOR AN IMPROVEMENT, OR PORTION 84
THEREOF, TO REAL ESTATE IN THIS STATE THAT REQUIRES ANY 85
LITIGATION, ARBITRATION, OR OTHER DISPUTE RESOLUTION PROCESS 86
3
PROVIDED FOR IN THE CONSTRUCTION CONTRACT, SUBCONTRACT, 87
AGREEMENT, OR UNDERSTANDING TO OCCUR IN ANOTHER STATE IS VOID AND 88
UNENFORCEABLE AS AGAINST PUBLIC POLICY. ANY LITIGATION, 89
ARBITRATION, OR OTHER DISPUTE RESOLUTION PROCESS PROVIDED FOR IN 90
THE CONSTRUCTION CONTRACT, SUBCONTRACT, AGREEMENT, OR 91
UNDERSTANDING SHALL TAKE PLACE IN THE COUNTY OR COUNTIES IN WHICH 92
THE IMPROVEMENT TO REAL ESTATE IS LOCATED OR AT ANOTHER LOCATION 93
WITHIN THIS STATE MUTUALLY AGREED UPON BY THE PARTIES.
(E) No construction contract, agreement, or understanding 96
that makes payment from a contractor to a subcontractor or 97
materials supplier, or from a subcontractor to a materials 98
supplier, lower tier subcontractor, or lower tier materials 99
supplier contingent or conditioned upon receipt of payment from 100
any other person shall prohibit a person from filing a claim to
protect rights under sections 153.56, 1311.06, and 1311.26 of the 102
Revised Code from expiring during the pendency of receipt of 105
payment.
(E)(F) Nothing in this section shall be construed to 107
create a liability for a surety on a bond that is greater than 109
that of its principal, or limit the availability to a surety of 110
any defenses available to its principal.
(F)(G) As used in this section: 113
(1) "Contractor" and "lower tier subcontractor" have the 116
same meanings as in section 4113.61 of the Revised Code. 119
(2) "Materials supplier" includes any person by whom any 121
materials are furnished in furtherance of an improvement. 122
(3) "Lower tier materials supplier" means a materials 124
supplier who is not in privity of contract with a contractor but 125
is in privity of contract with another subcontractor or a 126
materials supplier.
(4) "Subcontractor," "improvement," and "materials" have 128
the same meanings as in section 1311.01 of the Revised Code. 129
Section 2. That existing section 4113.62 of the Revised 131
Code is hereby repealed. 132