1 Sterling Education Seminar Business Liability Insurance Alexandrea L. Isaac Hartford, CT Sept. 20, 2011
2 Various Types: Commercial Property Owner s Liability Policy Products Liability Policy Commercial General Liability (CGL) Policy
3 Business liabilities are commonly dealt with by a CGL Endorsements are added to a CGL to match the insured s risk Typical for Owners, Landlords and Contractors
4 Commercial Property Policy Insurance Requirements specified by Lease: At all times during the term, landlord will carry and maintain commercial property insurance covering the building, fixtures, equipment, tenant improvements and betterments which shall, at minimum, cover the perils insured under the ISO [insert with a particular form]
5 Commercial Property Policy Would contain commercial property coverage form for 1 st party losses (see handout example) Liability would be addressed by a CGL form
6 Products Liability Coverage Coverage for You Products/Completed Operations Liability Coverage Form (see handout) Coverage for Others such as supplies by endorsement (see handout)
7 Product Recall Excluded under a standard CGL policy Separate Product Withdrawal Coverage From by ISO (see handout)
8 The Standard CGL Policy ISO Form (see handout)
9 A CGL Policy is Litigation Insurance Policy Declarations Limits of Insurance Notice Duty to Indemnify Duty to Defend Bodily Injury/Property Damage Occurrence Trigger Exclusions Allocation
10 Policy Declarations Policy number Named insured Policy period Limits of insurance Premium List of endorsements
11 Limits of Insurance Aggregate v. per occurrence Defense inside/outside limits Deductible v. self-insured retention
12 Deductible v. SIR Deductible Paid and reimbursed Defense from first dollar SIR Policyholder s responsibility No defense Choice of counsel
13 Notice to Insurer Notice of claim/suit Forward complaint Notify the insurer Broker
14 Late Notice Prejudice v. forfeiture Denial of defense and indemnity Waiver by insurer Loss of pre-tender defense fees
15 General Principles of Insurance Policy Interpretation Burden of proof insuring agreement v. exclusions Exclusions Construed narrowly, must be clear Exceptions constructed broadly Interpretation against the drafter ( contra proferentum )
16 Insuring Agreement Duty to Indemnify Based on known or established facts We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage...[that] occurs during the policy period.
17 Insuring Agreement Bodily Injury Bodily injury means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
18 Insuring Agreement Property Damage Property damage means: (a) Physical injury to tangible property, including all resulting loss of use of that property or (b) Loss of use of tangible property that is not physically injured.
19 Duty to Defend Broader than duty to indemnify Insurer must defend if complaint alleges facts potentially within policy s coverage Consequences for breach We will have the right and duty to defend any suit seeking those damages.
20 A standard CGL policy will also provide for Personal and Advertising Injury
21 Personal and Advertising Injury Personal and Advertising injury means injury (including consequential BI) arising out of: False arrest, detention, imprisonment Malicious prosecution Slander/libel Privacy violations Copyright (etc.) infringement
22 The Occurrence requirement
23 Insuring Agreement Occurrence Accident is undefined Includes unintended consequences of intentional act Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
24 Occurrence/Trigger Occurrence based CGL Policies Requires PD/BI during the policy period
25 Occurrence/Trigger When is trigger an issue Continuing damages or repeated damages from same causative event Asbestos bodily injury and other toxic torts Environmental property damage Construction defect property damage
26 Occurrence/Trigger (cont.) Effect Limits of Liability Possibility of stacking multiple policies from consecutive years Deductible/SIRs Allocation to multiple policies may require all deductibles
29 DEFECTIVE CONSTRUCTION AS AN OCCURRENCE Highest Court has found defective construction to be an occurrence (or by state statute). Tending towards coverage; only lower state court or federal court authority exists. Highest Court has found defective construction not to be an occurrence. Tending against coverage; only lower state court or federal court authority exists. Defective construction only an occurrence when there is damage to third-party property. Unclear, cases/legislation conflict. No decision
30 Policy Exclusion
31 Expected or Intended Injury Pollution Exclusion War Contractual Liability Worker s Compensation Claims Employers Liability Personal and Advertising Injury Typical CGL Exclusions Damage to Specified Property Damage to Your Product Damage to Your Work Recall of Products or Work Damage to Impaired Property or Property not Physically Injured Professional Services
32 Environmental Coverage Specific Exclusions Asbestos Silica Mold/Fungi Lead-based paint
34 Environmental Coverage (cont.) Qualified Pollution Exclusion This insurance does not apply: (f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
35 Environmental Coverage (cont.) Absolute Pollution Exclusion This insurance does not apply: f.(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants: (a) At or from premises you own, rent or occupy; (b) At or from any site or location used by or for you or others for the handling, storage, disposal, processing or treatment of waste; (c) Which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for you or any person or organization for whom you may be legally responsible; or
36 Environmental Coverage (cont.) Absolute Pollution Exclusion (cont.) (d) At or from any site or location on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations: (i) if the pollutants are brought on or to the site or location in connection with such operations; or (ii) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize the pollutants. (2) Any loss, cost, or expense arising out of any governmental direction or request that you test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
37 Environmental Coverage (cont.) Absolute Pollution Exclusion (cont.) Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemical and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
38 Environmental Coverage (cont.) Total Pollution Exclusion
39 The Total Pollution Exclusion eliminates virtually all coverage for pollution incidents: This insurance does not apply to: f. Pollution (1) Bodily injury or property damage which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.
40 To the extent that you have a pollution risk Pollution Liability Policy
41 Damages is not a defined term in the standard CGL coverage form. Are punitive damages insurable?
42 Are punitive damages insurable? Is there an endorsement on the policy? Is there a state statute that addresses the issue? Is there case law that addresses the issue?
43 Where exemplary damages are awarded for purposes of punishment and deterrence, as is true in this state, public policy should require that payment rest ultimately as well as nominally on the party who committed the wrong; otherwise they would often serve no useful purpose. The objective to be obtained in imposing punitive damages is to make the culprit feel the pecuniary punch, not his guiltless guarantor. Hartford Acc. & Indem. Co. v. Amer. Red Ball Transit Co. Inc., 938 P.2d 1281, 1286 (Kan. 1997).
44 Coverage for punitive damages as well as policy interpretation is critical to every coverage action. Choice of law analysis is prior to filing all coverage actions.
45 Thank You! Alexandrea L. Isaac Saxe Doernberger & Vita, P.C.
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