CHANGE HIGHLIGHTS COMMERCIAL GENERAL LIABILITY POLICY IBC 2100 COMPARISON BETWEEN FORMS (Refer to Policies for details)

Transcription

1 CHANGE HIGHLIGHTS COMMERCIAL GENERAL LIABILITY POLICY IBC 2100 COMPARISON BETWEEN FORMS (Refer to Policies for details) CHG. # PAGE # IN NEW CHANGE MODE 1 General All Exclusions now contain descriptive titles as shown n the index. 2 General The words compensatory damages have been placed in quotation marks throughout the policy. 3 1, 5 and 7 The duty to defend contained in the Insuring Agreement for Coverage A, B and D has been expanded and a sentence was added to explain when this does not apply. 4 1 and 7 The Insuring Agreement for Coverage A and D was amended to preclude coverage for known losses that occurred prior to the policy period. Wording has also been added to explain when bodily injury or property damage is deemed to have been known to have occurred. 5 2 and 8 The exception for damages assumed in an insured contract in the Contractual Liability exclusion has been expanded. 6 2 The Employer s Liability exclusion has been expanded to exclude coverage for members of an employee s family as a consequence of bodily injury to that family. 7 3 The aircraft and watercraft exclusions have now been combined and exclude any aircraft, air cushion vehicle, or watercraft owned or operated by or rented or loaned to any insured. 8 3 A new paragraph addressing negligent supervision, hiring, training etc. has been added to the aircraft/watercraft exclusion. The same paragraph was also added to the automobile exclusion. 9 3 The automobile exclusion has been expanded due to a recent court decision and to better describe the insuring intent. EXPLANATION "Compensatory damages" is now a defined term does not include punitive or exemplary damages or the multiple portion of any multiplied damage award. Clarifies that costs investigation are borne by the Insurer when any claim or action is defended. There's no duty to defend and any claim or action for damages not covered by the policy. Language has been added to the insuring agreements to overcome the trend of the courts to expand the time period covered by triple" or "continuous trigger" theory. The latest Canadian decision was by the Ontario Court of Appeal in the Alie et al vs. Bertrand et al case. The Alie decision held that, depending on the policy wording coverage could still be triggered even though damage was sustained to some extent before the policy began. Now provides payment of defense expenses which the insured has assumed in an insured contract. These expenses are deemed to be compensatory and subject to the policy limit. Clarifies that the family member s claims for consequential damage should be filed under the employer's liability portion of the Workmen's Compensation policy. Intended to exclude all aircraft or watercraft apart from those specifically exempted. Inserted to clarify and explicitly exclude coverage for alleged negligent hiring, training or supervision. The automobile exclusion now extends to claims arising from the entrustment of the automobile to others. Anticoncurrent causation language was added and the loading and unloading of the automobile is now excluded. This GEN-ELI Page 1

2 10 3 An exception for automobiles owned by the insured and leased to others on a long-term basis was added The first paragraph of the Damage to Property exclusion has been expanded and 5 Seven new exclusions were added under Coverage A Bodily Injury and Property Damage. The pollution condition exclusion was moved to Common Exclusions and re-labeled as Pollution. was added to clarify that automobile covered should only be provided under a contract evidenced by a motor vehicle liability policy. [Dirksen decision] Added to protect the insured against losses arising out of a defective condition or improper maintenance of an automobile that the insured leases to another on a long-term basis, but only if the lessee is contractually obligated to ensure that the automobile is insured. Any costs or expenses to maintain, repair or replace the property are now excluded and it is not the intent to cover repairs etc. to property over which the insured has ownership, custody or control. Coverage is normally available for this exposure by some form of property insurance. l-an exclusion for electronic data with added to complement the revised definition of property damage which now states that electronic data is not considered to be tangible property. m-personal and Advertising liability is now specifically excluded under Coverage A as it is included via Coverage B. n-cover for BI [other than incidental medical malpractice injury ] or due to the rendering of defined professional services" is now excluded. o-abuse as defined is now excluded. p,q,t-exclusions for Asbestos, Fungi or Spores and Terrorism were inserted and identified as common exclusions Coverage B now insures Personal and Advertising Injury Liability. Advertising injury has now been packaged with Personal Injury liability. The policy definition of "personal and advertising injury liability" listing 7 specific offenses is the major difference between Coverage B and the revised Coverage A insuring agreement. The coverage trigger under Coverage B is offense related versus the "occurrence" trigger under Coverage A and 6 The list of exclusions for Coverage B has been increased from 5 to 18. Many of the exclusions were inserted to address emerging e-commerce issues. The addition of advertising injury liability in Coverage B necessitated the inclusion of the following exclusions: Knowing Violation Of Rights Of Another, Breach Of Contract, Quality Or Performance of goods failure to conform, GEN-ELI Page 2

3 15 7 The only changes made to Coverage C in the revised form are in the exclusions The Insuring Agreement under Coverage D (Tenant s Legal Liability) was amended to provide broad form coverage to premises rented or occupied by the Insured. (See also # s 3 and 4 above) The number of Common Exclusions applicable to Coverages A, B, C and D has been increased from two to six. The optional pollution liability extensions were removed from the base wording and similar coverage is now provided for option 1 via new IBC Form wrong description of prices, Infringement Of Copyright, Patent, Trademark Or Trade Secret, Insureds In Media And Internet Type Businesses, Electronic Chat Rooms Or Bulletin Boards, Unauthorized Use Of Another's Name Or Product, Asbestos Common Exclusions, Fungi or Spores Common Exclusions, Nuclear Common Exclusions, Terrorism Common Exclusions, War risks Common Exclusions. The athletics activities exclusion was broadened to now exclude practicing; instructing or participating in any physical exercises are games, sports or athletic contests. To avoid repeating exclusions found under Coverage A, a new exclusion was inserted to make all exclusions under Coverage A applicable to Coverage C also. Previous version provided coverage only if property damage was caused by the stated perils of fire, explosion, smoke or leakage from fire protective equipment There are now 6 Common Exclusions listed in alphabetical order: 1. Asbestos inserted for clarity and to complement the pollution exclusion. 2. Fungi or spores wording from IBC endorsement form 2333 has been inserted as part of the revised based wording. 3. Nuclear Energy this exclusion is now applicable to all Coverages and remains unchanged from that in the previous wording, except that the defined terms are now listed under Section V-definitions. 4. Pollution the Pollution exclusion was modified to provide coverage for bodily injury caused by smoke, fumes, vapour or soot from equipment used to heat, cool or dehumidifier the building or equipment that is used heat water for personal use, by the building's occupants or their guests. This is in response to the Zurich case. 5. Terrorism the wording in IBC endorsement form 2332 that was released to all members in January 2002 has been inserted in to the base wording. GEN-ELI Page 3

4 18 11 Under Supplementary Payments Coverages A, B and D, the amount for loss of earnings has been increased and the previous paragraph concerning costs and post-judgment interest was split into two separate paragraphs A new provision 2 was added to Supplementary payments Coverages A, B, and D to address the defense of an indemnitee under an insured contract Section II Who Is An Insured was modified to include additional forms of business and defined classes of workers The most important changes made to Section III Limits of Insurance are: 1) the inclusion of a Products Completed Operations Aggregate Limit; 2) the removal of the aggregate and occurrence limits for Tenant s Legal Liability; and 3) the additional of a deductible provision. 6. War anti-concurrent causation language similar to that found in the terrorism exclusion was added to this exclusion and number 1 and 2 above. The revised daily limit for reasonable expenses incurred at the insurer's request to assist in the investigation defense of the claim was increased from $100-$250. The postjudgment interest is now payable only until the insurer has paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. Provides that the insurer will defend and pay the defense costs of and indemnitee named in a suit against the insured if certain conditions are met. These payments will be made in addition to the policy limit of insurance only if all conditions are met. Otherwise, the change noted as #5 above will apply. Limited Liability Partnerships and Limited Liability Companies, which are an increasingly common alternative to individual proprietorships, partnerships, joint ventures and corporations are now included. Trusts were also added to the list. Volunteer workers, as defined, are now insured while performing duties related to the conduct of the business. A new exception was added to preclude coverage for suits made by the relatives of an employee against a coemployee. This has the same effect as that noted under change #6 above. The property damage exclusion was expanded to preclude coverage for any property in the care, custody, or control of, or over which physical control is being exercised. If the insured is a Condominium Corporation, the unit or strata lot owners and any tenants are now included but only with respect to the conduct of the Corporation for liability arising out of the common property. The previous wording contained a General Aggregate Limit and included products completed operations claims. The revised wording contains a separate Aggregate Limit for products completed operations. Each Aggregate Limit represents a separate amount of insurance. Thus an insured with a General Aggregate Limit of $2 million and a products completed operations Aggregate Limit of $2 million could now collect up to a total of $4 million under GEN-ELI Page 4

5 22 14 Section IV Commercial General Liability Conditions in most respects closely corresponds to the wordings in the previous form. The major changes are noted to the right preceded by the Condition number in the revised form. that policy. The Tenants Legal Liability limit is now subject to only the "any one premises" amount specified on the declaration page and not subject to either of the General Aggregate or the Occurrence Limit as it was in the previous wording. A Deductible clause has been inserted that reduces the amount payable under either Coverage A or Coverage D by the amount specified, if any, on the Declarations Page. 4-the insured must now be notified as soon as practicable of an offense and not only of an occurrence. This is necessary because Coverage B, dealing With the personal injury and advertising injury, applies to offenses, rather than occurrences. The insured is now obliged to immediately record the specifics of any claim or action brought against them and the date received and notified the Insurer as soon as practicable. 6- the new Inspections and Surveys condition is longer than in the previous wording. Its purpose is to disclaim any implications that an inspection or survey by the Insurer constitutes an undertaking for the benefit of the insured or others concerning the safety of any premises or operations. 7-reference to a specific time limit for commencing an action Or proceeding against the insurer was removed from the revised Legal Action Against Us text. The limitation acts across Canada vary by Province and the location where the action is commenced will dictate the applicable time period. 8- the Other Insurance Condition now states that coverage provided by the CGL policy is access over Fire Insurance for the premises rented or temporarily occupied by the insured. A new provision was added to make person s or organization s own CGL policy access over the policy modified by endorsement to include that person or organization as an additional insured. Thus, the additional insured is covered on a primary basis on the policy to which the additional insured endorsement is attached and on an excess basis of its own policy. 13-the term "cancellation" was changed to "termination" to provide consistency with the wording found in the commercial property policies and five days notice of GEN-ELI Page 5

6 23 17 and 21 The number of defined words and terms under Section V Definitions has doubled from 16 to 32. termination, If personally delivered, was added. Words and phrases that appear in quotation marks throughout the wordings are defined in Section V- definitions. These definitions are intended to provide clarity and lessen other interpretation that may foster both arguments and varying results. 1. Following is an alphabetical list of new definitions that were inserted: "abuse"; "advertisement"; "compensatory damages"; "employee"; "executive officer", "fungi"; "hostile fire"; "incidental medical malpractice"; "leased worker"; "loading or unloading"; "professional services"; "spores"; "temporary worker"; "terrorism"; "volunteer worker". 2. Certain of the existing definitions were changed or expanded: "action" was expanded to include arbitration or other ADR proceedings in which compensatory damages are claimed. "Automobile"-replaces the term "auto" and the new term is defined to mean a land motor vehicle, trailer or semi trailer that is required by law to be insured under contract evidenced by a motor vehicle liability policy, or any vehicle insured under such a contract. "Coverage territory"-was expanded to all parts of the world for "personal and advertising injury" offenses take place through the Internet or similar electronic means of communication. "Insured contract"-now excludes that portion of the contract for a lease of premises that indemnifies any person or organization for damage to rented or occupied premises. This exclusion ties in with the contractual liability exclusion found under coverage A and D. the assumption of tort liability of another party was amended by inserting a proviso that the BI or PD is caused, in whole or in part, by the insured or those acting on the insured's behalf. In this manner, any additional insured will only have the coverage for acts or omissions to which the named insured is either totally or partially at fault, thereby negating coverage for the additional insured's sole negligence. GEN-ELI Page 6

7 A new exclusion was added to eliminate contractual liability for injury or damage resulting from professional errors or omissions of architects, engineers or surveyors. Personal and Advertising to Injury"-replaces the previous the defined term of personal injury. Offenses related to the use of another's advertising, copyright, trade dress or slogans are now excluded. "Your product" and "your work" both had a clause added to include the providing of or failure to provide warnings or instructions. GEN-ELI Page 7