ConsensusDocs 200 and 750 insurance requirements explained

ConsensusDocs 200, the owner-constructor agreement and general conditions in one document, puts its risk terms in Article 10: mutual indemnity, the constructor's liability insurance, property insurance with a mutual waiver of subrogation, optional additional insured or OCP coverage for the owner, bonds and professional liability for delegated design. The biggest difference from AIA is builder's risk: since the 2017 revision, the constructor buys it by default unless the owner directs otherwise in writing. The ConsensusDocs 750 subcontract mirrors this structure in its Article 9.

ConsensusDocs forms are copyrighted, so this guide paraphrases and cites section numbers instead of quoting. We relied on ConsensusDocs' own guidebook (August 30, 2023 edition), its overview of recent updates and published commentary on the 2017 revision. Numbering has shifted between the 2011, 2014 and 2017 editions and later updates, and project copies are usually edited, so confirm against the copy you sign.

ConsensusDocs 200, Article 10

10.1 Indemnity

Each party indemnifies the other for bodily injury and property damage claims (other than damage to the Work itself) only to the extent of its own side's negligence, measured on a comparative basis. The guidebook notes that the standard language contains no duty to defend, and that a party paying defense costs beyond its share of fault can recover the excess. Section 10.1.3 addresses claims by the constructor's own employees: the indemnity is not capped by workers' compensation limits, which works as a waiver of the employer's comp immunity for indemnity purposes. Some states require that waiver to be written in a particular way, so local counsel matters. This limited, fault-based approach fits inside the CGL's contractual liability coverage; see indemnification and hold harmless clauses and your insurance.

10.2 The constructor's insurance

The constructor may not start work until required insurance is in effect, and must carry workers' compensation, employers' liability, business auto and commercial general liability with the limits written into the agreement. The CGL must include products-completed operations and contractual liability, and completed operations coverage must continue for one year after Substantial Completion or longer if the contract documents say so. Primary and umbrella or excess policies may be combined to reach the required limits.

The cancellation-notice language is ConsensusDocs' answer to the ACORD 25 change that ended "endeavor to mail" promises on certificates. To the extent commercially available, the insurer or its designee notifies the owner 30 days before a nonrenewal and within 10 business days after a cancellation, and the constructor must promptly tell the owner of any lapse it knows about. That is realistic in a way that a flat 30-day cancellation demand is not; see certificates of insurance: what they prove and what they do not. The 2017 revision also added pollution liability as a check-the-box option and, per an ABC webinar summary, dropped the separate owner's liability and business income insurance provisions.

10.3 Property insurance and the waiver

• 10.3.1 Builder's risk. Unless the owner directs otherwise in writing, the constructor buys a builder's risk policy on the entire project for full replacement cost at the time of loss, on an all-risk form, with the constructor, subcontractors, sub-subcontractors, suppliers and design professional as insureds. Section 10.3.1.1 lists perils the policy must cover. The 2023 update removed the requirement to cover existing structures, which builder's risk markets often will not insure anyway.
• 10.3.2 Deductible. The party primarily responsible for a loss pays the deductible; if neither caused it (hail, for example), the party that bought the policy pays. The guidebook suggests clarifying that the owner cannot recover that deductible through indemnity.
• Owner directs otherwise. If the owner chooses to place the coverage itself, it can reduce the contract price for the premium the constructor no longer pays.
• Waiver of subrogation. Article 10.3 also carries the mutual waiver: owner and constructor waive claims against each other and their tiers for damage covered by the property insurance, except rights to the proceeds.
• 10.3.5 Owner's existing adjacent property. The constructor indemnifies the owner for damage to the owner's existing property caused by the constructor's side's negligence or intentional wrongful acts, up to the greater of the CGL proceeds paid or a dollar figure the parties write in, including reasonable attorneys' fees. On an occupied renovation, the guidebook suggests shifting some of that property risk to the owner's own property carrier or raising the CGL limit at the owner's cost.

Two related provisions sit outside Article 10. The limited mutual waiver of consequential damages (§6.6) does not waive losses covered and paid by required insurance, and the constructor's duty to remedy damage to the Work (§3.11.5) does not extend to damage the owner's property insurance covers.

Risk of loss follows procurement. In a 2017 summary of the revisions, Bradley Arant noted that the party procuring builder's risk bears the risk of loss to the Work until Final Completion. A constructor taking on builder's risk is taking on that risk, and has to price the premium and deductible into its bid.

10.4 Additional general liability coverage

Here ConsensusDocs departs most from AIA. The owner decides whether to require extra protection at all, and picks between being named an additional insured on the constructor's CGL (limited to liability caused by the constructor's negligence in performing the Work) and an Owners and Contractors Protective (OCP) policy, ISO CG 00 09, with limits equal to the CGL. The guidebook explains how to get both OCP and completed operations additional insured coverage. Any documented added premium is the owner's to pay.

Under §10.4.1, the constructor's and its subcontractors' primary and excess insurance is primary and noncontributory to the additional insured's own insurance. That produces vertical exhaustion: the downstream parties' towers pay before the owner's own excess layers.

Bonds and professional liability

The bonds section (§10.6 in the 2017 numbering) lets the parties require performance and payment bonds; since 2017 the penal sum no longer rises automatically when the contract price grows by more than 10%, so increases need a rider. ConsensusDocs publishes its own bond forms, and subcontractors can ask for a copy of the payment bond. Where the constructor takes on delegated design, §10.7 requires professional liability coverage for that design work. See bid, performance and payment bonds: how contract surety works and Professional liability (E&O) insurance explained.

ConsensusDocs 750 subcontract, Article 9

The 750 is built to flow the prime agreement's obligations down to the subcontractor (§3.1), and its Article 9 (Indemnity, Insurance and Waiver of Subrogation) tracks Article 10 of the 200. Section numbers below come from the AGC comments in the 2023 guidebook.

The AGC comments are worth reading from the contractor side. They suggest requiring blanket additional insured status rather than "naming," replacing the negligence-based AI trigger with broader wording, checking that the subcontract's AI list matches every party the prime agreement requires, and extending completed operations beyond one year where warranties or the owner's requirements run longer. They also recommend that the bond penal sum include change orders, not just the original subcontract amount.

The American Subcontractors Association's comments in the same guidebook take the opposite view: subcontractors should resist additional insured and liability waiver demands, and an OCP policy can be offered instead. Both positions appear in one official document, which tells you how negotiable these provisions are.

ConsensusDocs 200 versus AIA A201, side by side

Details on the AIA side are in AIA A201-2017 insurance requirements, provision by provision, and insurance requirements by contract type: a side-by-side guide compares both with MSAs, leases and government contracts.

Negotiation checklist

1. Decide who places builder's risk before pricing. If the constructor does, get the premium, deductible and existing-structure treatment into the bid.
2. Fill in the §10.3.5 dollar figure on renovations, or move existing-property risk to the owner's carrier.
3. Owners: decide on §10.4 coverage deliberately, and budget the surcharge you will pay.
4. Contractors: make the 750's additional insured and completed operations terms at least as broad as what you owe the owner, so nothing falls in the gap.
5. Confirm subcontractors' policies actually include the endorsements the 750 checkboxes call for; the contract insurance requirements checker and managing subcontractor insurance and certificates help.

State anti-indemnity statutes and workers' compensation rules can override contract terms, so have construction counsel review the edited forms; workers' comp and benefits requirements by state is a starting point for the comp side.

Key takeaways

• ConsensusDocs 200 Article 10 combines indemnity, liability insurance, property insurance, the waiver of subrogation, owner protection and bonds in one place.
• The constructor buys builder's risk by default and carries the related deductible and risk-of-loss exposure.
• Additional insured or OCP protection for the owner is an owner election, and the owner pays the added premium.
• The 750 subcontract mirrors the 200 in Article 9, and its waiver of subrogation covers property insurance only.
• Numbering and terms changed in 2014, 2017 and 2023; read the edition you are signing.