1 U n i v e r s i t y R i s k M a n a g e m e n t & I n s u r a n c e A s s o c i a t i o n U R M I A W h i t e P a p e r Third-Party Contract Insurance Guidelines October 2009 John P. McLaughlin Managing Director, Higher Education Practice Arthur J. Gallagher & Co. Michael J. Gansor Risk Manager West Virginia University Editor: Christie Wahlert URMIA
2 This URMIA white paper is published by the University Risk Management and Insurance Association (URMIA), P.O. Box 1027, Bloomington, IN URMIA is an incorporated nonprofit professional organization. Editing and layout of the October 2009 URMIA white paper was completed by Christie Wahlert, URMIA, Bloomington, Indiana, and printing was completed at Indiana University Printing Services, Bloomington, Indiana. There is no charge to members for this publication. It is a privilege of membership. Additional copies are available by contacting the URMIA National Office at the address above or at Membership information is also available. LEGAL NOTICE AND COPYRIGHT: The material herein is copyright October 2009 URMIA; all rights reserved.
3 Table of Contents ESTABLISHING CONTRACTUAL INSURANCE GUIDELINES 3 GENERAL INSURANCE REQUIREMENTS FOR ALL INSURERS 5 INSURANCE COVERAGES 7 Commercial General Liability 7 Automobile Liability 7 Workers Compensation 7 Umbrella Liability 8 Professional Liability 8 Pollution Liability 9 Property - Tenants/Lessees 10 Aviation 10 Builders Risk 10 Bonds 10 Self-Insurance (including Captive Insurance) 11 INSURANCE REQUIREMENTS Construction/Renovation Contracts Vendor Agreements Consulting and Professional Services Agreements (Architects, Engineers, Environmental Consultants) Short-Term Lease Agreements/Special Events Commercial Lease of Premises CONTRACT LANGUAGE Indemnity Hold Harmless and Indemnification Agreements and Non Waiver Independent Contractor Assignment Appendices APPENDIX 1 - CONSTRUCTION / RENOVATION CONTRACTS / 35 BUILDERS RISK / INSTALLATION FLOATER OPTIONS APPENDIX 2 - VENDOR AGREEMENTS 45 APPENDIX 3 - CONSULTING AND PROFESSIONAL SERVICES 47 (ARCHITECTS, ENGINEERS, AND INFORMATION TECHNOLOGY) APPENDIX 4 - SHORT-TERM LEASE AGREEMENTS, 57 SPECIAL EVENTS, AND COMMERCIAL LEASE OF PREMISES APPENDIX 5 - SCHEDULE OF ADDITIONAL INSURED ENDORSEMENTS 61 APPENDIX 6 - DEFINITIONS OF COMMON TERMS 63 APPENDIX 7 - EXAMPLE REQUEST LETTERS 67
5 To: URMIA Members From: Michael J. Gansor, Risk Manager West Virginia University Re: Third-Party Contract Insurance Guidelines The 2009 edition of the Third-Party Contract Insurance Guidelines is an informational tool to assist members in better understanding some of the insurance coverage and policy form nuances associated with the myriad contracts risk managers are asked to review and opine on in the course of our duties. We hope these guidelines will prove to be a valuable tool in helping you manage your contractual risks. We must stress that the Third-Party Insurance Guidelines are just that guidelines. Each state, each institution, each insurance carrier, and each individual contract comes with its own unique set of conditions and circumstances. It is incumbent on those responsible for managing contracts at your institution to ensure the terms, conditions, and insurance coverage requested meets the needs of your specific situation. No guideline, no matter how complete, is appropriate for all situations! I would like to thank our colleagues in the Gallagher Higher Education Practice for their help in preparing this document. Specifically, I would like to thank Liz McHugh, Priscilla McCoy, Laura O Malley, and John McLaughlin. Without their assistance, this valuable resource could not have been developed. Sincerely, Michael J. Gansor The Third-Party Insurance Guidelines are just that guidelines. Each state, each institution, each insurance carrier, and each individual contract comes with its own unique set of conditions and circumstances. Michael J. Gansor, Risk Manager, West Virginia University Third-Party Contract Insurance Guidelines 1
7 Establishing Contractual Insurance Guidelines Every contract has risks that must be reviewed from the perspective of protecting [College/University s] assets. This document is designed to provide you with guidelines and tools to help you manage those risks when you contract on behalf of [College/University]. The inherent parts of contract management are to: 1. Evaluate the risks involved 2. Decide whether to avoid, transfer, or accept the risks 3. Implement appropriate risk transfer and/or risk financing mechanisms Read the contract thoroughly, and anticipate events or situations that could happen within the scope of work outlined. Ask yourself: 1. Who are all of the parties involved? 2. What kind of work is being done? 3. What type of accidents or losses could occur, and what is the worst case scenario in terms of financial loss and/or injury to persons or property? 4. Are the responsibilities for the risks appropriately placed with those in the best position to control them? 5. What is the ability of the parties to manage the risks and absorb the losses? 6. Is the contract legal and enforceable? Within the contract, risk transfer is accomplished through a combination of indemnification, hold harmless, and waiver of subrogation clauses. Insurance is commonly required as a means of providing the financial support to back the Indemnitor s obligation to hold the Indemnitee harmless. Third-Party Contract Insurance Guidelines 3 Key Note About the Information and Samples Included in This Document These guidelines were created to assist staff who review, approve, or manage contracts. They are guidelines only. The purpose of this document is to provide examples of specific coverages, terms, and conditions you may want to consider when asked to comment on insurance requirements in your institution s contracts. The documents and contract language specified here are intended to be template guidelines or examples of best practices. Each one should be adjusted to fit your specific institution s risk profile. A legal opinion should be sought before making any changes to existing contract language.
8 The goal of [College/University] is to establish contract guidelines for insurance coverage that can be consistently applied with few exceptions. This can occur if [College/University] decides on the limits that it will require and sticks to that decision. This may involve withstanding pressure from contractors, architect and engineering (A/E) firms, and brokers. As an example, many of the large A/E firms attempt to eliminate all Errors and Omissions (E&O) requirements in their contracts, even though the firm carries professional liability coverage. To ensure the continued success of [College/University s] contract review program, once insurance requirements have been set, they must be communicated in all bid proposals prior to awarding the contract. The program will not be successful if the insurance is negotiated after the contractor has been selected. Third-Party Contract Insurance Guidelines 4
9 General Insurance Requirements for All Insurers These general requirements should be incorporated into every contract and should not to be waived without consulting with the risk management department. [College/University] requires that all insurers: 1. Be licensed or approved to do business within the state of [your state]. 2. Write required insurance on an occurrence basis (professional liability and pollution liability are acceptable written on a claims-made basis). 3. Name [College/University] and its [Board of Regents/Trustees], officers, employees, agents, and volunteers as Additional Insureds on general liability and other policies as specified by the contract. Please refer to the Contract Language section of this white paper for acceptable wording for this requirement. 4. Possess a minimum A.M. Best s Insurance Guide rating of A VII. A.M. Best rating is composed of two parts: the letter denotes the company s financial strength level (see Figure 1), and the Roman numeral denotes financial size. Please visit for further explanation and to look up insurance company ratings. LEVEL AM BEST RATING CHART CATEGORY A++ Superior A+ Superior A Excellent A- Excellent B++ Very Good B+ Very Good B Good B- Good C++ Fair C+ Fair C Marginal C- Marginal D Below minimum standards Figure 1: AM Best s Rating Chart 5. Provide a minimum of 30 days advance written notice of cancellation, material change, or nonrenewal of policies required under the contract to [College/University]. Third-Party Contract Insurance Guidelines 5
10 6. Provide a completed Certificate of Insurance containing the following information: Name and address of agent, phone number, and fax number Name of insurance company(ies) and policy number(s) Policy period Name and address of insured Description of coverage(s) Policy limits Special instructions or terms of coverage (For example: Addition of [College/University] as additional insured, waiver of subrogation, identification of project or operations with respect to certificate being issued) [College/University] listed as the certificate holder Signature of the insurer s agent or representative and date 7. [College/University] requires that all policies of insurance be on a primary basis, non-contributory with any other insurance coverages and/or self-insurance carried by [College/University]. 8. [College/University] requires the contractor provide a renewal certificate at least 15 days prior to expiration. 9. [College/University] may also require that proof of professional liability and pollution liability coverages be provided for up to three (3) years after the completion of a project. 10. The Contractor agrees that the insurance requirements specified in the contract do not reduce the liability Contractor has assumed in the indemnification/hold harmless section of the contract. [College/University] reserves the right to approve the security of the insurance coverages provided by the insurance company terms, conditions, and the Certificate of Insurance. Failure of the Contractor to fully comply with these requirements during the term of the contract will be considered a material breach of contract and will be cause for immediate termination of the contract at the option of [College/University]. Third-Party Contract Insurance Guidelines 6
11 Insurance Coverages Commercial General Liability This coverage is required in all [College/University] contracts (including short-term lease agreements). Bid specifications and contracts should state that required coverage is ISO CG0001 or a substitute form providing equivalent coverage. Coverage is to include: Premises and Operations Personal Injury/Advertising Liability Products/Completed Operations Liability assumed under an Insured Contract (including tort liability of another assumed in a business contract) Independent Contractors Automobile Liability Auto liability insurance coverage is required for contracts contemplating any use of an automobile, including construction projects, premises lease agreements, and service contracts. Bid specifications and contracts should state that required coverage shall be written on standard ISO form CA0001 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage equivalent to that provided in the 1990 and later editions of CA0001. Contracts must contain a requirement that the contractor provide business automobile liability coverage that includes: All vehicles owned, leased, hired, non-owned, and employee non-owned vehicles Personal Injury Protection (when applicable) Workers Compensation [College/University] requires all contractors, lessees, and vendors to maintain workers compensation insurance with statutory limits. Employers liability is also required with minimum limits of $500,000 Each Accident Limit / $500,000 Disease-Policy Limit / $500,000 Disease-Each Employee Limit. Third-Party Contract Insurance Guidelines 7 Key Note About Workers Compensation NOTE: If contractor, lessee, or vendor is a sole proprietor, he or she may not be required by law to have workers compensation coverage. But if the sole proprietor has any employees, workers compensation is required for the employees. Also, in some states, if the college or university does not ensure that contractors maintain workers compensation coverage, the college or university will be liable for the payment of benefits and insurance premiums.
12 Contractors and lessees shall be responsible for workers compensation insurance for subcontractors or sub-lessees who directly or indirectly provide services or lease premises under [College/University s] contract. This coverage must include statutory coverage for states in which employees are engaging in work. If there is an exposure of injury to the contractor s employees under the U.S. Longshore and Harbor Workers Compensation Act, the Jones Act, or under laws, regulations, or statutes applicable to maritime employees, coverage shall be included for such injuries or claims. Umbrella Liability An umbrella liability policy (or excess liability) may be used to provide additional commercial general liability, automobile liability, and employers liability limits to meet [College/University s] minimum coverage requirements. Professional Liability (Errors and Omissions) Professional liability insurance protects against losses that occur when a professional errors in judgment, planning, and design could result in economic loss to [College or University]. Therefore, there can be risks to the institution associated with errors or allegations of errors in the professional s work product or judgment. Professional liability may have a different meaning when it relates to insurance rather than a type of the university contract. In order to determine if you should require professional liability insurance, ask yourself: 1. Is the professional licensed or certified (i.e. architect, consultant, paramedic, attorney, engineer, etc.)? 2. Will the information developed by the professional be used in a decision making process within the institution that could create a liability (i.e. such as clinical trials, etc.)? If the answer is yes to either of these questions, professional liability insurance should be required. The types of losses that can occur under such circumstances are often excluded under general liability policies. They can be covered through separate professional liability insurance policies, also known as errors and omissions (E&O) liability insurance. Examples of services that would require professional liability coverage include, but are not limited to: Accountants Financial consultants Appraisers Insurance/risk management consultants Architects Investment consultants Attorneys Medical professionals Auditors Professional managers (museums, parks, gardens, etc.) Computer/software design Project management (construction, design) Consultants Property managers/ real estate agents Childcare workers/facilities Social workers Engineers Teachers Figure 2: Examples of Services Requiring Professional Liability Coverage Third-Party Contract Insurance Guidelines 8
13 Because professional liability insurance is generally written on a claims-made basis, there is a concern about coverage for latent defects or design errors that may result in claims after the contract has been completed. One solution is to require the contractor to maintain the coverage for a specified period after the project has been completed or to purchase an extended reporting period, otherwise known as tail coverage. It should be [College/University s] standard requirement for professional liability to require a three-year extended reporting period for all claimsmade policies, except for construction including design build contracts, in which a five-year or six-year extended reporting period for all claims-made policies should be required. [College/University] may also require that proof of professional liability coverage be provided for up to three (3) years after the completion of a project. Key Note About Professional Liability NOTE: The contract manager will need to make sure that the contractor has provided evidence of the extended reporting period coverage at the end of the project and before all final payments to the contractor have been made. Pollution Liability (including Contractors Pollution Liability Coverage) Pollution liability coverage should be considered whenever the work at issue involves the handling of hazardous material or the operation of the contractor could create or exasperate an environmental hazard. The contractor should provide pollution liability coverage to cover bodily injury; property damage, including natural resource damage, cleanup costs, removal, storage, disposal, and or use of the pollutant; and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims. Coverage should apply to the sudden and gradual pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, natural gas, waste materials, or other irritants, contaminants, or pollutants, including asbestos. Pollution liability coverage is normally written on a claims-made basis. Therefore, the contractor needs to warrant that any retroactive date applicable to coverage under the policy precedes the effective date of the contract and that continuous coverage will be maintained or an extended reporting or discovery period will be exercised for a period of three years (or desired number of years), beginning from the time that work under this contract is completed. If the contractor is responsible for removing any pollutants from a site, then the contractor will need to cover its automobile exposure for transporting the pollutants from the site to an approved disposal site. Auto liability coverage should be endorsed to include the required auto pollution endorsements and Motor Carrier Act Endorsement, MCS 90. Third-Party Contract Insurance Guidelines 9
14 Property - Tenants/Lessees This insurance is required for tenants and lessees. [Tenant/Lessee] shall obtain commercial property insurance covering [Tenant/Lessee s] property, fixtures, equipment, improvements, and betterments. Perils insured should be equivalent to ISO special causes of loss form CP1030, and the valuation of covered property should be the replacement cost. A waiver of subrogation should be included in all lease agreements. Aviation Aviation insurance may be required for various types of activities, such as charters and land use permits. Aircraft liability insurance should cover all owned, hired, and non-owned aircraft with a combined single limit per occurrence for bodily injury and property damage of not less than $10,000,000 with no per seat passenger limitation. If the charter is of a large, commercial-sized airplane some carriers classify this as any aircraft having over 45 seats then higher limits should be required. Builders Risk/Installation Floater Builders risk insurance is designed to cover buildings and construction materials while in the course of construction. Builders risk insurance is a form of property insurance that protects the construction project against loss or damage caused by a variety of perils, such as fire, wind, or hail. Installation floaters are similar to builders risk insurance policies in that they are designed to cover damage to material and equipment to be installed in an existing building. Installation floaters are required from contractors performing a specialized job on an existing building or installing equipment or materials that are not included in a construction project contract. An example would be a contract to replace the plumbing and fixtures in a bathroom of an existing building. Bonds A bond is a three-party contract in which the surety company guarantees the performance or honesty of the contractor to [College/University]. Contractors typically are required to provide up to three types of bonds on a construction project. A bid bond is commonly required in competitive bid situations. It is submitted with the bid and guarantees that if the contractor is awarded the job, it will agree to perform the work at the price quoted and will provide additional bonds as required by the construction contract. If the contractor declines to enter into a contract to perform the work at the agreed-upon price, the bid bond will reimburse [College/University] the difference between the defaulting contractor s bid and the next lowest bid, up to the bid bond penal amount. A performance bond guarantees that the contractor will perform the work in accordance with the construction contract and related documents, thus protecting [College/University] from financial loss up to the bond limit in the event the contractor fails to fulfill its contractual obligations. The general contractor is responsible for contracting for all materials and labor needed for the project and for paying for such materials and labor in accordance with the contract provisions. The payment bond guarantees that suppliers and subcontractors will, in fact, be paid for materials and labor furnished to the contractor. The ultimate purpose of the payment bond is to guarantee [College/University] delivery of a project that is free of liens. Third-Party Contract Insurance Guidelines 10
15 Self-Insurance (including Captive Insurance Arrangements) Many large organizations today are self-insured or have captive insurance companies. This means that instead of buying insurance with small deductibles, they choose to purchase insurance to cover themselves for catastrophic events and self-insure the predictable losses. Deductibles can range from the hundreds of thousands to the millions of dollars. In certain limited circumstances, generally involving very large and financially secure companies which have the financial capability to pay claims for damages and losses related to their activities, [College/University] may, at its discretion, accept proof of self-insurance for some or all of the insurance requirements set forth under these guidelines. If so, [College/University] should require the company to certify that its program is funded to actuarial projected losses. Third-Party Contract Insurance Guidelines 11
16 Insurance Requirements The following are examples of insurance requirements for the following types of contracts: 1. Construction/renovation projects 2. Vendor agreements 3. Consulting and professional services agreements, such as architects, engineers, and environmental consultants 4. Short-term lease agreements (for those parties using [College/University] premises/buildings for special events) 5. Commercial Lease Agreements of [College/University]-Owned Premises The next few pages contain examples of minimum insurance requirements for each of the above situations. Thorough explanations of the insurance requirements for each of these situations are contained in the appendices, along with suggested language that may be used as inserts into the insurance requirements section of [College/University s] contracts. Key Note About Insurance Requirements NOTE: The size and scope of the contract and the potential exposure will dictate the minimum level of coverage required. The suggested minimum limit is $1,000,000. Third-Party Contract Insurance Guidelines 12
17 Insurance Requirements: CONSTRUCTION/RENOVATION PROJECTS INSURANCE REQUIREMENTS MINIMUM LIMITS NOTES Commercial General Liability ISO form CG0001 or a substitute form providing equivalent liability coverage ISO endorsement CG2010 see notes ISO endorsement CG2037 see notes $1,000,000 each occurrence; see Appendix 1 for full description of required limits $2,000,000 General Aggregate $2,000,000 Products/ Completed Operations Aggregate CGL must include coverage for liability arising from products-completed operations and liability assumed under an insured contract. If CGL insurance has a general aggregate limit, then ISO endorsement CG2503 (03/97 Edition) or its equivalent should be added. The Designated Construction Project(s) General Aggregate Limit must be maintained for the duration of the agreement or longer, if required and so stated in the contract. The size and scope of the contract and the potential exposure will dictate the minimum level of coverage required. The designated construction project(s) (per project aggregate) general aggregate and the products/completed operations aggregate should be twice the minimum required occurrence limit. [College/University] and its [Board of Regents/Trustees], officers, employees, agents, and volunteers should be included as an additional insured using ISO additional insured endorsement CG2010 and CG2037 (completed operations) or a substitute providing equivalent coverage. There should be no endorsement or modification of the CGL limiting the scope of coverage for liability assumed under contract or liability arising from pollution, explosion, collapse, underground property damage, or damage to the work. This insurance shall apply as primary insurance/non-contributory with respect to any other insurance or self-insurance programs offered to [College/University]. Third-Party Contract Insurance Guidelines 13
18 Insurance Requirements: CONSTRUCTION/RENOVATION PROJECTS (continued) INSURANCE REQUIREMENTS Business Automobile Coverage ISO form CA0001 or a substitute form providing equivalent liability coverage ISO endorsement CA9948 see notes ISO endorsement MCS90 see notes MINIMUM LIMITS $1,000,000 each accident limit for bodily injury and property damage NOTES Coverage must include all owned, leased, hired, non-owned, and employee non-owned vehicles and, where applicable, personal injury protection. If necessary, the policy shall be endorsed to provide contractual liability coverage equivalent to that provided in the 1990 and later editions of ISO form CA0001. Pollution liability coverage equivalent to that provided by ISO pollution liability-broadened coverage for autos endorsement CA9948 and the Motor Carrier Act endorsement MCS90 shall be included if the contractor is responsible for transporting and disposing of hazardous materials. Workers Compensation (Statutory) and Employers Liability Coverage A Workers Compensation, in compliance with the laws of the state of [your state]; and Coverage B Employers Liability, $500,000/$500,000/ $500,000 Contract should state that the contractor waives all rights against [College/University] and its [Board of Regents/Trustees], officers, employees, agents, and volunteers for recovery of damages to the extent these damages are covered by the business auto liability insurance (or under any applicable auto physical damage coverage). This coverage must include statutory coverage for states in which employees are engaging in work. If there is an exposure of injury to contractor s employees under the U.S. Longshore and Harbor Workers Compensation Act, the Jones Act, or under laws, regulations, or statutes applicable to maritime employees, coverage shall be included for such injuries or claims. The U.S. Longshore and Harbor Workers Compensation Act coverage is provided by NCCI endorsement WC000106A, and the Maritime Coverages are provided by NCCI endorsement WC000201A. Contract should state that the contractor waives all rights against [College/University] and its [Board of Regents/Trustees], officers, employees, agents, and volunteers for recovery of damages to the extent these damages are covered by workers compensation and employers liability insurance. The NCCI endorsement to use for this coverage is WC Waiver of Our Right to Recover from Others. Umbrella Liability Varies by project Required if contract requires limits higher than $1,000,000. Professional Liability (Design Errors and Omissions Liability) $1,000,000 per claim per policy year Required if the contractor is performing any type of design/ build for a particular project. [College/University] may require proof that this coverage be provided for up to three (3) years after project completion. Policy is to be on a primary basis if other professional liability is carried. Third-Party Contract Insurance Guidelines 14
19 Insurance Requirements: CONSTRUCTION/RENOVATION PROJECTS (continued) INSURANCE REQUIREMENTS Builders Risk Insurance/Installation Floater Completed Value Basis Property MINIMUM LIMITS Hard construction values of project NOTES Required on MOST construction projects. Two options are available: 1) contractor provides coverage or 2) [College/ University] provides coverage (see Appendix 1). One of these options must be included in the contract/bid package. For assistance in determining which option to use, please contact risk management. Pollution Liability Varies by project Can be obtained through the contractors general liability coverage by including the Limited Pollution Liability Extension ISO endorsement CG 2415 (10/01 Edition). However, a separate contractors pollution legal liability policy is also acceptable. [College/University] and its [Board of Regents/ Trustees], officers, employees, agents, and volunteers should be included as an additional insured with respects to liability and defense of suits arising out of activities performed by or on behalf of contractor, including completed operations. NOTE: Contractors are required to ensure that all subcontractors are insured under the contractors policies. All subcontractors and sub-tier contractors are required to comply with the coverage and limit requirements outlined in this document. Third-Party Contract Insurance Guidelines 15
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21 Insurance Requirements: VENDOR AGREEMENTS INSURANCE REQUIREMENTS Commercial General Liability ISO form CG0001 (12/04 Edition) or its equivalent ISO Endorsement CG2026 see notes MINIMUM LIMITS $1,000,000 per occurrence bodily injury and property damage $2,000,000 General Aggregate $2,000,000 Products/ Completed Operations Aggregate NOTES These insurance requirements are for vendors (those individuals or businesses who sell their product to others while on [College/University] premises). Insurance must be maintained for the duration the vendor is on university premises. If CGL insurance has a general aggregate limit, then ISO endorsement CG2504 (03/97 Edition) or its equivalent should be added. The Designated Location(s) General Aggregate Limit must be maintained for the duration of the agreement or longer, if required and so stated in the contract. The size and scope of the contract and the potential exposure will dictate the minimum level of coverage required. The general aggregate and the products/completed operations aggregate should be twice the minimum required occurrence limit. [College/University] and its [Board of Regents/Trustees], officers, employees, agents, and volunteers should be included as an additional insured using ISO additional insured endorsement CG2026 or a substitute providing equivalent coverage. There should be no endorsement or modification of the CGL limiting the scope of coverage for liability assumed under contract or liability arising from pollution. Business Automobile Coverage ISO form CA0001 or a substitute form providing equivalent liability coverage Workers Compensation (Statutory) and Employers Liability $1,000,000 each accident limit for bodily injury and property damage Coverage A, in compliance with the laws of the state of [your state]; and Coverage B, $500,000/$500,000/ $500,000 This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs offered to [College/University]. Coverage must include: All owned, leased, hired, nonowned, and employee non-owned vehicles and, where applicable, Personal Injury Protection. This coverage must include statutory coverage for states in which employees are engaging in work. Third-Party Contract Insurance Guidelines 17