Decennial Liability Insurance & Subrogation

Question:
If the employer has its Decennial Liability (DL) insurance and the insurer indemnified him, can the insurer assert a subrogation claim against the builder and the consultants? Can the employer agree to waive subrogation, or to add the builder and consultants as additional insureds under the employer's insurance policy? 

My answer:
Simply speaking, DL is a public policy matter that cannot be waived by agreement. DL theory is aimed to protect the society more that the employer itself. Employer's agreement with its insurance company to waive subrogation is in effect a waiver of DL which will highly unlikely be allowed in court. The second option , i.e. adding the consultant/contractor as an additional insured, leads to the same consequences. It will prevent subrogation without having to expressly agree on the waiver of subrogation. It may work as it is similar to the case where a contractor/consultant purchases its own DL insurance policy. Basically, there is nothing preventing contractors and/or consultants from procuring an insurance policy against their DL. Such insurance is usually expensive and raises the costs sharply. DL lasts for 10 years and I wonder if such an insurance can easily be obtained...

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