Wm. R. Clarke Corp. v. Safeco Insurance of America

I dissent. The contractor and the subcontractors agreed that they would assume equally the risk the owner would not be able to pay for their work. The majority voids this agreement and forces the contractor to bear the risk not only that it will receive no payment for its own work but also that it will have to pay the subcontractors out of its own pocket. The majority accomplishes this end by (1) declaring the contractual provision at issue—the “pay if paid” clause—invalid as against public policy because it supposedly indirectly waives mechanic’s lien rights, even though the subcontractors…