As Passed by the House 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- 10
HARRIS-D. MILLER-BUCHY-PERRY-YOUNG-OGG-STEVENS-JOLIVETTE- 11
JACOBSON-VESPER-WIDENER 12
_________________________________________________________________ 13
A B I L L
To amend section 4113.62 of the Revised Code to 15
specify that a construction contract containing a 16
provision subjecting the contract to the laws of
another state is void. 17
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 19
Section 1. That section 4113.62 of the Revised Code be 21
amended to read as follows: 22
Sec. 4113.62. (A) Any provision of a construction 32
contract, agreement, or understanding that waives rights under a 33
surety bond is void and unenforceable as against public policy. 34
(B) Any provision of a construction contract, agreement, 37
or understanding, or specification or other documentation that is 38
made a part of a construction contract, agreement, or 39
understanding, that waives any pending or asserted claim on the 40
basis of final payment made from one person to another for the 41
construction contract, agreement, or understanding, is void and 42
unenforceable as against public policy, when the person against 43
whom the claim is pending or asserted has received notice of that 44
pending or asserted claim. Nothing in this division precludes 45
parties to a construction contract, agreement, or understanding 46
from entering into a subsequent settlement agreement arising from 47
a claim under that construction contract, agreement, or 48
2
understanding.
(C)(1) Any provision of a construction contract, 51
agreement, or understanding, or specification or other 52
documentation that is made a part of a construction contract, 53
agreement, or understanding, that waives or precludes liability 54
for delay during the course of a construction contract when the 55
cause of the delay is a proximate result of the owner's act or 56
failure to act, or that waives any other remedy for a 57
construction contract when the cause of the delay is a proximate
result of the owner's act or failure to act, is void and 58
unenforceable as against public policy. 59
(2) Any provision of a construction subcontract, 61
agreement, or understanding, or specification or other 62
documentation that is made part of a construction subcontract, 63
agreement, or understanding, that waives or precludes liability 64
for delay during the course of a construction subcontract when 65
the cause of the delay is a proximate result of the owner's or 66
contractor's act or failure to act, or that waives any other
remedy for a construction subcontract when the cause of the delay 67
is a proximate result of the owner's or contractor's act or 68
failure to act, is void and unenforceable as against public 69
policy.
(D)(1) ANY PROVISION OF A CONSTRUCTION CONTRACT, 71
AGREEMENT, UNDERSTANDING, OR SPECIFICATION OR OTHER DOCUMENT OR 72
DOCUMENTATION THAT IS MADE A PART OF A CONSTRUCTION CONTRACT, 74
SUBCONTRACT, AGREEMENT, OR UNDERSTANDING FOR AN IMPROVEMENT, OR
PORTION THEREOF, TO REAL ESTATE IN THIS STATE THAT MAKES THE 76
CONSTRUCTION CONTRACT OR SUBCONTRACT, AGREEMENT, OR OTHER 77
UNDERSTANDING SUBJECT TO THE LAWS OF ANOTHER STATE IS VOID AND 79
UNENFORCEABLE AS AGAINST PUBLIC POLICY. 80
(2) ANY PROVISION OF A CONSTRUCTION CONTRACT, AGREEMENT, 82
UNDERSTANDING, SPECIFICATION, OR OTHER DOCUMENT OR DOCUMENTATION 83
THAT IS MADE A PART OF A CONSTRUCTION CONTRACT, SUBCONTRACT, 84
AGREEMENT, OR UNDERSTANDING FOR AN IMPROVEMENT, OR PORTION 85
3
THEREOF, TO REAL ESTATE IN THIS STATE THAT REQUIRES ANY 86
LITIGATION, ARBITRATION, OR OTHER DISPUTE RESOLUTION PROCESS 87
PROVIDED FOR IN THE CONSTRUCTION CONTRACT, SUBCONTRACT, 88
AGREEMENT, OR UNDERSTANDING TO OCCUR IN ANOTHER STATE IS VOID AND 89
UNENFORCEABLE AS AGAINST PUBLIC POLICY. ANY LITIGATION, 90
ARBITRATION, OR OTHER DISPUTE RESOLUTION PROCESS PROVIDED FOR IN 91
THE CONSTRUCTION CONTRACT, SUBCONTRACT, AGREEMENT, OR 92
UNDERSTANDING SHALL TAKE PLACE IN THE COUNTY OR COUNTIES IN WHICH 93
THE IMPROVEMENT TO REAL ESTATE IS LOCATED OR AT ANOTHER LOCATION 94
WITHIN THIS STATE MUTUALLY AGREED UPON BY THE PARTIES.
(E) No construction contract, agreement, or understanding 97
that makes payment from a contractor to a subcontractor or 98
materials supplier, or from a subcontractor to a materials 99
supplier, lower tier subcontractor, or lower tier materials 100
supplier contingent or conditioned upon receipt of payment from 101
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 103
Revised Code from expiring during the pendency of receipt of 106
payment.
(E)(F) Nothing in this section shall be construed to 108
create a liability for a surety on a bond that is greater than 110
that of its principal, or limit the availability to a surety of 111
any defenses available to its principal.
(F)(G) As used in this section: 114
(1) "Contractor" and "lower tier subcontractor" have the 117
same meanings as in section 4113.61 of the Revised Code. 120
(2) "Materials supplier" includes any person by whom any 122
materials are furnished in furtherance of an improvement. 123
(3) "Lower tier materials supplier" means a materials 125
supplier who is not in privity of contract with a contractor but 126
is in privity of contract with another subcontractor or a 127
materials supplier.
(4) "Subcontractor," "improvement," and "materials" have 129
the same meanings as in section 1311.01 of the Revised Code. 130
4
Section 2. That existing section 4113.62 of the Revised 132
Code is hereby repealed. 133