INSURING OWNERS DESIGN ERRORS AND OMISSIONS EXPOSURES
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1 Workshop W9 Wednesday, November 12 1:30 2:45 p.m. and 3:05 4:20 p.m. INSURING OWNERS DESIGN ERRORS AND OMISSIONS EXPOSURES Presented by Workshop W9 Jeff Slivka Chief Operating Officer/Executive Vice President Construction Practice Leader New Day Underwriting Managers LLC With the escalating costs of insuring the design team on a construction project, project owners who hold contracts with design professionals or design-builders are showing an increasing interest in owners protective professional indemnity (OPPI) insurance to protect themselves against potentially catastrophic design errors. OPPI provides contingent liability coverage and first-party indemnity to project owners for damages they incur as a result of negligent acts, errors, and/or omissions of their design professionals, as well as defense for third-party claims. This session will examine the various alternatives an owner has available to protect itself against both first-party losses and contingent liability for third-party professional liability claims associated with design errors, with a heavy focus on the OPPI option. Industry trends and expectations for the coming year will also be discussed. To print on both sides of the page, set your printer for duplex printing. Copyright 2014 International Risk Management Institute, Inc. 1
2 Expert Advice. Smart Solutions. Knowledgeable Professional Responsive New Day Underwriting is a specialty resource for agents and brokers with a reputation for providing undivided attention and proven expertise for all of your construction related professional liability and environmental insurance needs. With attentive support from highly experienced underwriting professionals and our strong industry relationships, New Day delivers easy and time-saving, single-point access to the nation s major insurance carriers. We ll show you how we can design the optimal program to meet your client s specific needs. New Day Underwriting Managers LLC info@newdayunderwriting.com newdayunderwriting.com Tel: Knowledgeable Professional Responsive
3 Jeff Slivka Chief Operating Officer/Executive Vice-President Construction Practice Leader New Day Underwriting Managers LLC Mr. Slivka is COO/Executive Vice President, Construction Practice Leader at New Day Underwriting Managers LLC, where he assists in establishing the strategic direction and vision for the company. His expertise includes construction-related professional liability insurance (including contractor protective, owner protective, and project professional liability programs), environmental insurance, and risk management services associated with each. Having worked with major brokerage firms, managing agencies, and insurance carriers, Mr. Slivka has spent nearly 25 years developing his skills at Aon, Arthur J. Gallagher, and ECS, Inc./XL Environmental. Over his career, Mr. Slivka has assisted over 50 percent of the Engineering News Record (ENR) Top 400 Construction firms with managing environmental and/or professional liability. He has also been in the forefront of helping businesses address emerging concerns such as building information modeling and sustainable design/ construction and he has conducted seminars on a variety of other topics including integrated project delivery and environmental risk management. Mr. Slivka serves as an active member on industry-related committees and organizations including the Associated General Contractors of America's National Risk Management and Environmental Committees and the Construction Financial Management Association. He is an Expert Commentator for IRMI, contributing articles on design liability and environmental issues, and is a frequent speaker at numerous industry events. Mr. Slivka received a Bachelor of Science degree in geology from Bloomsburg University of Pennsylvania. He has completed the professional designation of Associate in Risk Management (ARM) and the Construction Risk and Insurance Specialist (CRIS) certification. Workshop W9 3
4 Notes 4
5 Insuring Project Owners Professional Liability Risks Presented By: Jeff Slivka Executive Vice President and Chief Operating Officer New Day Underwriting Managers LLC Workshop W9 Agenda Professional Liability Insurance Alternatives Overview of Owner s Protective Owner s Protective Features/Benefits FAQs 5
6 S.A.T. Slivka Aptitude Test Question 1 1. Of the entities listed below, who retains the ultimate responsibility for design errors on a construction project? a. Project owner b. Design professional c. General Contractor d. POTUS e. All of the above 6
7 Question 1 1. Of the entities listed below, who retains the ultimate responsibility for design errors on a construction project? a. Project owner b. Design professional c. General Contractor d. POTUS e. All of the above Workshop W9 Question 2 2. The Owner s Protective product has been offered a. Since 1975 b. Since 1988 c. Since 2002 d. Only on freakin-huge projects e. Since 1975 and only on freakin-huge projects 7
8 Question 2 2. The Owner s Protective product has been offered a. Since 1975 b.since 1988 c. Since 2002 d. Only on mega-huge projects e. Since 1975 and only on mega-huge projects Question 3 3. Since last year the percentage of construction related professional liability claims have. a. Decreased b. Increased by about 30% c. Stayed the same d. Risen by 351.5% e. None of the above 8
9 Question 3 3. Since last year the percentage of construction related professional liability claims have. a. Decreased b. Increased by about 30% c. Stayed the same d. Risen by 351.5% e. None of the above Workshop W9 9
10 10
11 Step 1.PL Alternatives Workshop W9 No PL insurance Professional Liability Insurance Alternatives Cost Easy to achieve Benefits Drawbacks (Under or un-insured exposure) Relying on contractual indemnities DPs may lack the financial strength 11
12 Professional Liability Insurance Alternatives Requiring Evidence of DPs/DBs Practice Programs Cost Easy to achieve Benefits Drawbacks (Under or un-insured exposure) Impaired limit of insurance? Quality of insurance program? Renewal implications Named Insured = DP/DB Defense within the LOL Limitations of liability provisions DP discontinues operations Professional Liability Insurance Alternatives Project Excess Endorsements - Practice Programs Benefits Cost Dedicated portion of limit Easy to achieve depending on carrier Drawbacks (Under or un-insured exposure) Impaired limit of insurance? Quality of insurance program? Renewal implications Insured = DP/DB Defense within the LOL Limitations of liability provisions DP discontinues operations 12
13 Project PL Policy Professional Liability Insurance Alternatives Benefits Primary protection (replaces DP/DB insurance) Dedicated LOL and term = financial security Focused/quality coverage Owner = indemnified party Drawbacks (Under or un-insured exposure) Protects the DP/DB LOL may be maximum available Defense within LOL Cost Material variation endorsements Complex underwriting Limited carrier interest Note: Project policies defend the DP/DB from the third party claim (i.e. owner claim) Workshop W9 Professional Liability Insurance Alternatives Owner s Protective E&O Benefits Supplements DP/DB PL insurance Dedicated LOL to named insured Owner is only insured and beneficiary No interference with DP s PL insurance DIC Easier Underwriting/Administration Reduced cost Excess insurance Emerging market Drawbacks Excess Insurance Additional Cost 13
14 Overview of Owner s Protective CORE CONCEPT: Insuring against catastrophic design errors or professional liability loss Overview of Owner s Protective Product Description Two Primary Coverage Parts Indemnity: Indemnity for damages incurred by the Owner excess of the DP S PL insurance Result of DP s negligent acts/errors/omissions Damages that the Owner is legally entitled to recover Applies to design and/or other professional services Defense: Cost the insured incurs to defend third party claims 14
15 Overview of Owner s Protective Product Description Two Additional Coverage Parts Excess Contractors Pollution Pollution Legal Liability Structure options: Project or Blanket Workshop W9 Overview of Owner s Protective Application How it works Owner hires DP to perform services Requires PL limit via contract Owner suffers damages($$) resulting from DP services Owner makes demand against the DP (aka protective claim) DP tenders claim to its professional liability carrier Policy pays the delta : Total damages -PL limits available from DP $Protective Claim/Payout$ Payment made: when DP s professional liability insurance is exhausted or proves to be insufficient 15
16 Owner s Protective Features/Benefits Owner s Protective E&O Benefits Supplements DP/DB PL insurance Dedicated LOL and term Owner is only insured and beneficiary No interference with DP s PL insurance DIC Provided MIR no subrogation against DP Reduced cost Excess insurance Flat/non-auditable No MV endorsements Advocacy to owner Easier Underwriting/Administration Emerging market Drawbacks Excess Insurance Additional Cost Marketplace Overview of OPPI Carriers Primary : 6 or 7 carriers and growing Excess: Plus 3 or 4 Limits Up to $25,000,000 with single carrier or $100,000,000+ with layered approach Term Construction term ERP Up to 5 years OR LONGER SIR $50,000 minimum may only be applicable to third party defense coverage MIR Established by the limits evidenced by the DP/DB (usually $1,000,000) Costs Minimum premium: $25,000 Compared to project PL: Up to 50% less 16
17 Workshop W9 Are the Owner s litigation costs against DP covered? No. Policies typically contain exclusions for the insured s legal expense in investigation, prosecution, adjustment or making of the claim against the DP. By exclusion or definition! 17
18 Is Owner s Protective available for all types of projects? Yes Do limitations of liability in contracts with DP s impact coverage? Absolutely! Coverage afforded for damages the insured is legally entitled to recover. 18
19 Does the Owner s Protective carrier pay prior to the DP s professional liability carrier? Typically No. Excess v. Primary Workshop W9 Should Owner s Protective be purchased prior to design? Prior to construction? Prior to construction beginning Full prior acts coverage provided 19
20 What project owners are most likely to buy Owner s Protective? Larger. Private. Sophisticated/Innovative Projects. Goal: secure insurance program for catastrophic design/professional liability loss What project types have the highest hit ratios with the carriers? Healthcare Education Commercial Office Infrastructure/Condos/Entertainment 20
21 Does project size matter? Yes. Projects between $250M to $1B in CV Needing catastrophic protection Workshop W9 Thank You Jeff Slivka, ARM, CRIS New Day Underwriting Managers LLC Executive Vice President/Chief Operating Officer ext
22 Notes 22
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