Builder's Risk and CGL Insurance for Construction Projects: Mitigating Developer and Contractor Risks

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1 Presenting a live 90-minute webinar with interactive Q&A Builder's Risk and CGL Insurance for Construction Projects: Mitigating Developer and Contractor Risks Evaluating Scope of Coverage, Covered Losses, Policy Exclusions, Additional Insured Endorsements and More TUESDAY, MARCH 4, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Melissa C. Lesmes, Partner, Pillsbury Winthrop Shaw Pittman, Washington, D.C. Michael S. McNamara, Partner, Pillsbury Winthrop Shaw Pittman, Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: In the chat box, type (1) your company name and (2) the number of attendees at your location Click the SEND button beside the box If you have purchased Strafford CLE processing services, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form). You may obtain your CLE form by going to the program page and selecting the appropriate form in the PROGRAM MATERIALS box at the top right corner. If you'd like to purchase CLE credit processing, it is available for a fee. For additional information about CLE credit processing, go to our website or call us at ext. 35.

4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 CGL and Builder's Risk Insurance for Construction Projects Melissa C. Lesmes Michael S. McNamara Pillsbury Winthrop Shaw Pittman LLP

6 The Context: A Typical Construction Project OWNER ARCHITECT Credit: quietaction; Creative Commons Attribution 2.0 Generic License CONTRACTOR SUBCONTRACTOR SUBCONTRACTOR SUBCONTRACTOR 6 CGL and Builders Risk Insurance for Construction Projects

7 Types of Insurance for Construction Projects First party Loss to the insured s own property Commercial Property insurance Builders Risk insurance Contractor s equipment insurance Third party Third parties claims and suits against the insured Commercial General Liability Pollution Legal Liability Professional Liability/Errors and Omissions Workers Compensation 7 CGL and Builders Risk Insurance for Construction Projects

8 How to read insurance Which is easier to read? Photo Horia Varlan, All Rights Reserved Creative Commons. 8 CGL and Builders Risk Insurance for Construction Projects

9 Why Builders Risk? To protect insureds against damage and resulting loss to work in the course of construction, before it is accepted and delivered to the owner; To insure against financial/economic losses arising in the course of construction. 9 CGL and Builders Risk Insurance for Construction Projects

10 What Is Builders Risk Insurance? Two basic types of Builders Risk insurance: All-risk - insures against all risks of loss except for those specifically excluded. Named peril - covers only those risks specifically enumerated within the policy. Builders Risk almost always on manuscript forms ISO form exists but rarely used In contrast to typical commercial general liability forms 10 CGL and Builders Risk Insurance for Construction Projects

11 Basic Insuring Agreement 11 CGL and Builders Risk Insurance for Construction Projects

12 Navigating a Property Insurance Policy The three P s Parties Property Perils a/k/a Causes of Loss 12 CGL and Builders Risk Insurance for Construction Projects

13 Parties Property Perils Sample from a Builders Risk Policy ABC Corp. 13 CGL and Builders Risk Insurance for Construction Projects

14 Parties Property Perils Sample from a Builders Risk Policy 14 CGL and Builders Risk Insurance for Construction Projects

15 Parties Property Perils Sample from a Builders Risk Policy Contractor 15 CGL and Builders Risk Insurance for Construction Projects

16 Parties Property Perils Who should be insured? Should include owner, general contractor and all subcontractors Best practice: name all of the above as named insureds On Builders Risk policy declarations page; or On a Named Insured Endorsement to the Policy. Can be identified by position: contractor and subcontractors of every tier. 16 CGL and Builders Risk Insurance for Construction Projects

17 Parties Property Perils Sample from a Property Policy 17 CGL and Builders Risk Insurance for Construction Projects

18 Parties Property Perils Sample from a Property Policy (1) Completed additions; (3) Fixtures, including outdoor fixtures; (10) Foundations of buildings, structures, machinery or boilers; (11) Bulkheads, pilings, piers, wharves or docks; (12) Underground pipes, flues or drains; and (13) Retaining walls. 18 CGL and Builders Risk Insurance for Construction Projects

19 Parties Property Perils Sample from a Property Policy (1) Furniture and fixtures; (2) Machinery and equipment; * * * (4) All other personal property owned by you and used in your business CGL and Builders Risk Insurance for Construction Projects

20 Parties Property Perils Continued (7) Leased personal property which you have a contractual responsibility to insure; (8) Personal Property, which will become part of your installation, erection or fabrication project, while: (a) At the site of installation, erection or fabrication; (b) In temporary storage pending installation, erection or fabrication. Coverage under this provision is not restricted to building or structures at your covered location or within 1,000 fee of a covered location ; * * * (10) Personal property of others in your care, custody or control including property sold under and installation agreement by which your responsibility continues until the buyer has accepted the property. However, our payment for loss of or damage to personal property of others will only be for the account of the owner of the property 20 Presentaion CGL and Builders Title Risk Insurance for Construction Projects

21 Parties Property Perils Sample from a Property Policy a. Accounts, bills, currency, etc. d. Automobiles, motorcycles, motortrucks, motorhomes, tractors, and similar vehicles, held for sale, lease, loan or rent; f. Bridges, roadways, walks, patios or other paved surfaces; m. Land... water, growing crops or lawns. 21 CGL and Builders Risk Insurance for Construction Projects

22 Parties Property Perils Two basic types of property insurance: All-risk - insures against all perils except for those specifically excluded. Named peril - covers only those perils specifically enumerated within the policy. 22 CGL and Builders Risk Insurance for Construction Projects

23 Parties Property Perils From Insurance to English Dictionary Covered Cause of Loss A cause of loss which results in coverage under a first party insurance policy. Syn., Peril. All risk policy 23 CGL and Builders Risk Insurance for Construction Projects

24 Parties Property Perils Remember the Basic Insuring Agreement? 24 CGL and Builders Risk Insurance for Construction Projects

25 Parties Property Perils Typically excluded perils Delays Pollution Mechanical Breakdown Defective design or workmanship Settling, cracking, shrinking or expanding Flood and Earth Movement 25 CGL and Builders Risk Insurance for Construction Projects

26 Parties Property Perils The peril that started chain of events that lead to your loss is excluded, so you can never have coverage. True or False? 26 CGL and Builders Risk Insurance for Construction Projects

27 Parties Property Perils Earthquake = Excluded Peril 27 CGL and Builders Risk Insurance for Construction Projects

28 Parties Property Perils Fire = Covered Peril 28 CGL and Builders Risk Insurance for Construction Projects

29 Parties Property Perils What if the earthquake causes a fire? 29 CGL and Builders Risk Insurance for Construction Projects

30 Parties Property Perils Broad Exclusion Excluded Peril Covered peril Damage = Medium Exclusion Excluded Peril Specified peril Damage = Narrow Exclusion Excluded Peril Covered peril Damage = 30 CGL and Builders Risk Insurance for Construction Projects

31 Parties Property Perils Example of broad exclusion 31 CGL and Builders Risk Insurance for Construction Projects

32 Parties Property Perils Example of medium exclusion 32 CGL and Builders Risk Insurance for Construction Projects

33 Parties Property Perils Example of narrow exclusion 33 CGL and Builders Risk Insurance for Construction Projects

34 Soft Costs Policies Differ Dramatically 34 CGL and Builders Risk Insurance for Construction Projects

35 Business Income Difference between Soft Costs and Business Income: Business income covers only those earnings that would have been generated had the loss not occurred Soft costs cover the additional cost irrespective of anticipated earnings 35 CGL and Builders Risk Insurance for Construction Projects

36 Common Myths Negligence is required Negligence bars coverage No coverage for force majeure events Only force majeure events are covered No coverage where faulty design or workmanship are at issue 36 CGL and Builders Risk Insurance for Construction Projects

37 Commercial General Liability Insurance Approaches to Managing Risk and Procuring Insurance Traditional Insurance General Practice Policy Ongoing operations coverage for policy period Completed operations coverage for policy period Project-Specific Policy/ Controlled Insurance Program ( CIP / Wrap ) Ongoing operations coverage for term of project Extended completed operations coverage 37 CGL and Builders Risk Insurance for Construction Projects

38 The CGL Policy Form The Policy Form Matters CGL policies are generally NOT manuscripted Form policies drafted and issued by the Insurance Services Office (ISO) The Endorsements Matter Coverage expanded or limited by endorsements 38 CGL and Builders Risk Insurance for Construction Projects

39 CGL Insurance: What is it good for? Defense Indemnity Duty to defend broader than duty to indemnify Duty to defend any one claim triggers duty to defend all Duty to defend triggered by any mere allegation of a potentially covered claim not by truth or merit of the allegations Four corners rule 39 CGL and Builders Risk Insurance for Construction Projects

40 Coverage A Triggering Coverage This insurance applies to damages because of bodily injury or property damage caused by an occurrence during the policy period. Property Damage = physical injury to tangible property and loss of use of tangible property not physically injured Bodily Injury = bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time Emotional Distress? During the policy period Triggers of coverage -- manifestation vs. continuous trigger 40 CGL and Builders Risk Insurance for Construction Projects

41 Caused by an Occurrence Caused by an Occurrence = an accident, including continuous or repeated exposure to substantially the same general harmful conditions. The majority of states recognize that construction defects can give rise to an Occurrence The trend is in favor of coverage Supported by language and history of ISO Form Policy: The Subcontractor Exception to the Your Work Exclusion: This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. Number of Occurrences can make a difference 41 CGL and Builders Risk Insurance for Construction Projects

42 During the Policy Period Occurs during the policy period Triggers of coverage manifestation vs. continuous trigger Progressive Losses what policies are triggered

43 Key Exclusions Under Coverage A Exclusion a Expected or Intended Injury Exclusion b Contractual Liability Bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. Exceptions: (1) Liability for damages that the insured would have in the absence of the contract; and (2) Liability for damages assumed in a contract that is an Insured Contract 43 CGL and Builders Risk Insurance for Construction Projects

44 What is an Insured Contract? Contractual Liability Exclusion Generally defined to include a contract pertaining to your business under which you assume the tort liability of another party to pay for bodily injury or property damage to a third person or organization. Works in conjunction with defense and indemnity provisions in most subcontracts The Contractual Liability exclusion is trying to avoid providing insurance coverage where the insured has assumed the contractual obligations of another 44 CGL and Builders Risk Insurance for Construction Projects

45 Key Exclusions Under Coverage A Exclusion f Pollution Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants. Exclusion j Damage to Property (1) Property you own, rent or occupy (2) Property you sell (except your work ) (5) That particular part of real property on which the insured or its subcontractors are performing operations if the damage arises out of those operations (6) --- That particular part of any property that must be... repaired or replaced because your work was incorrectly performed on it. 45 CGL and Builders Risk Insurance for Construction Projects

46 Key Exclusions Under Coverage A Exclusion l Damage to Your Work Property damage to your work arising out of it or any part of it and included in the products-completed operations hazard. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. Broad form property damage coverage Intent is to exclude only damages caused by the named insured to his own work Circular, Broad Form Property Damage Coverage Explained (January 29, 1979) 46 CGL and Builders Risk Insurance for Construction Projects

47 Key Exclusions Under Coverage A Professional Services Exclusions By Endorsement CG CGL and Builders Risk Insurance for Construction Projects

48 Key Exclusions Under Coverage A Professional Services Exclusions By Endorsement CG CGL and Builders Risk Insurance for Construction Projects

49 Key Exclusions Under Coverage A Professional Services Exclusions By Endorsement CG CGL and Builders Risk Insurance for Construction Projects

50 Additional Insured Endorsement Additional Insured: generally entitled to defense and indemnity Advantages: named insured s policy limits are depleted; loss history; increased total limits potentially available; application of work exclusions; primary to additional insured s own coverage Which ISO endorsements? Ongoing vs. completed operations Prefer CG not CG ; or CG and (together) Use of the wrong endorsements undercuts the utility of AI status Endorsements are better than Accord forms 50 CGL and Builders Risk Insurance for Construction Projects

51 CGL Policy Myths Economic Losses Are Never Covered Liquidated Damages Are Never Covered Punitive Damages Are Never Insurable Breach of Contract Claims Are Never Covered Damage to Your Work Can Never Arise from An Occurrence The Carrier is Always Entitled to Select Counsel 51 Insurance and Risk Transfer for Construction Projects

52 Credit: Greene Connection; Creative Commons Attribution 2.0 Generic License Credit: bulliver; Creative Connections Attribution 2.0 Generic License Credit: Christopher Hsia; Creative Commons Attribution 2.0 Generic License Questions? Feedback and Discussion 52 CGL and Builders Risk Insurance for Construction Projects

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