Tuesday, March 1, 2016 Houston, TX. 3:55 4:45 p.m. ENERGY 101 A PRIMER ON CGL EXPOSURES AND INSURANCE

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1 Tuesday, March 1, 2016 Houston, TX 3:55 4:45 p.m. ENERGY 101 A PRIMER ON CGL EXPOSURES AND INSURANCE Presented by Cindi Vickers Risk Management Consultant This primer session will dig into the details of commercial liability insurance for oil and gas risks. You will emerge with an understanding of the limitations imposed by various exclusionary endorsements. You ll also understand the extensions available and learn common problems in structuring umbrella/excess liability coverage over the primary liability program and how to correct them. Copyright 2016 International Risk Management Institute, Inc. 1

2 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 2

3 Cindi Vickers Risk Management Consultant Ms. Vickers began her career in Risk Management with El Paso Natural Gas Company in In 1997, she relocated to Houston, Texas to join the Insurance & Risk Management Department at El Paso Corporation. Prior to her relocation to Dallas, Texas in early 2016, she was the Risk and Insurance Director at Express Energy Services in Houston, Texas. She was hired by Express in 2012 as the company s first Risk Manager. Ms. Vickers has an extensive claims management background as well as a strong history of policy interpretation and contract review. On January 1, 2014, Ms. Vickers was appointed to the Board of Directors of the Surplus Lines Stamping Office of Texas for a three-year term. She has served on the RIMS Houston Chapter Board of Directors since 2002 and was President of the Chapter in She earned the ARM designation in 2001 and the CPCU designation in Ms. Vickers is originally from El Paso, Texas and attended the University of Texas at El Paso. 3

4 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 4

5 Commercial General Liability Exposures and Insurance Presented By: Cindi Vickers, CPCU, ARM Overview The oil and gas industry presents unique exposures for the companies that operate in that sector including o Contractual liability o Catastrophic losses Commercial Liability insurance and Umbrella/Excess Liability insurance can help provide protection against risks of loss and ensure that contractual insurance obligations are met 2 5

6 Commercial General Liability Commercial General Liability (CGL) insurance protects business owners against claims of liability for: Bodily injury and property damage Personal and advertising injury (slander and false advertising) Medical payments Premises/operations coverage pays for bodily injury or property damage that occurs on your premises or as a result of your business operations 3 Products/completed operations coverage pays for bodily injury and property damage that occurs away from your business premises and is caused by your products or completed work Claims-Made v. Occurrence Policies Occurrence policies cover claims arising from injury or damage occurring while the policy is in force, regardless of when the claim is first made Claims-made policies cover claims that arise from injury or damage occurring during the policy period and reported to the insurer during the policy. Claims arising from events outside the policy period or claims reported to the insurer outside the policy period are not covered unless special coverage is purchased or arranged with the insurer. This special coverage comes in two forms. o Prior acts ( nose ) coverage o Run-off ( tail ) coverage 4 6

7 Contractual Liability Coverage Coverage for the named insured s liability that is created when it assumes, in an oral or written contract, the financial consequences of another s negligent acts or omissions that results in bodily injury or property damage to a third party. Basically, one party to the contract assumes responsibility for certain liability resulting from third-party claims against the other party to the contract. 5 6 Contractual Liability Coverage - Parties to the Contract There are two important parties apart from the insurer and the claimant: o Indemnitor the one that agrees to hold harmless the other party o Indemnitee the other party to the agreement Contractual liability involves the financial consequences emanating from liability, and not the assumption of the indemnitee s liability itself. 7

8 Contractual Liability Coverage Common Terms The terms below are often seen in a contractual agreement. It is important to recognize the difference in their meanings. o Hold Harmless an agreement to assume the financial consequences of another s liability. o Indemnify to reimburse damages and defense costs. It does not include the obligation to defend. If an indemnitee wants to be defended, it must be stated in the contract. 7 Contractual Liability Coverage Who is Covered The standard ISO CGL policy refers to both terms named insured and insured in its contractual liability exclusion and exception, but reserves coverage to the named insured in certain circumstances (subpart f. of the insured contract definition). Who is covered for contractual liability or who is precluded from coverage depends on who is the named insured or who is an insured. 8 8

9 Bodily Injury Definition Bodily injury as defined by the Insurance Services Office, Inc. (ISO), means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. Mental anguish is typically not covered under primary CGL policies because it is not included within the policy definition of "bodily injury." However, despite the clear language of the policy, some states include mental anguish within the standard Insurance Services Office, Inc. (ISO), definition of bodily injury providing coverage for those damages. 9 Property Damage Definition As defined by ISO, property damage is: Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it. 10 9

10 Insured Contract Definition Standard CGL policies define insured contract in subpart 9. as, That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for bodily injury or property damage to a third person or organization, provided the bodily injury or property damage is caused, in whole or in part, by you or by those acting on your behalf. 11 Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. 12 Exclusions in a CGL Policy Exclusions commonly contained in a CGL policy: Damage to Your Work Damage to Your Product Contractual Liability Recall of Products, Work, or Impaired Property Workers Compensation and Employer s Liability Liability related to operating a vehicle 10

11 Exceptions to Exclusions Exceptions to exclusions commonly contained in a CGL policy Damage to Your Work o Subcontractor working for you caused the damage Contractual Liability o Liability for damages that you would have assumed in the absence of the contract or agreement 13 o Liability assumed in a contract or agreement defined in the policy as an insured contract, if the bodily injury or property damage occurs after the contract or agreement is executed Exceptions to Exclusions This exclusion does not apply to liability for damages: That the insured would have assumed in the absence of the contract or agreement. o This exception to the Contractual Liability exclusions refers to liability for damages that would have accrued to the insured in the absence of the contracts. o If the insured had been legally responsible for the damage because it resulted from his own wrongful acts, such wrongful acts, otherwise covered by the CGL, would continue to be covered despite any applicable contract or agreement. If the damages are the insured s fault and not excluded by other provisions of the CGL, then the insured is covered and any agreement to be responsible for the same damages is not relevant to coverage

12 15 Exceptions to Exclusions This exclusion does not apply to liability for damages: Assumed in a contract or agreement that is an insured contract, provided the bodily injury or property damage occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an insured contract, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of bodily injury or property damage, provided: a) Liability to such party for, or for the cost of, that party s defense has also been assumed in the same insured contract ; and b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. Oil & Gas Specific Contractual Liability Contractual indemnity language knock-for-knock indemnity Action-Over Claims Contractual Liability to Third Parties Indemnity agreements extending to equipment and/or property Provisions in agreements regarding purchase of certain types and amounts of insurance coverage for damages 16 12

13 Knock-for-Knock Indemnification Knock-for-knock indemnification used in energy industry contracts Reciprocal in nature Based on ownership of property and personnel as opposed to allocating risk based on fault Each party to an oil and gas contract agrees to take responsibility for and to indemnify the other party against injury and loss to its own employees and property regardless of fault or negligence 17 Knock-for-Knock Limitations Contract can be modified to exclude gross negligence or willful misconduct Can be similar to comparative negligence in that the parties have to establish those behaviors Needs modification when the property of a third party is damaged or a third party is not an employee of either of the parties to the agreement and suffers an injury 18 13

14 Action-over claims Action-over Claims Defined as a type of action in which an injured employee, after collecting workers compensation benefits from the employer, sues a third party for contributing to the employee s injury. Then, because of a contractual relationship between the third party and the employer, the liability is passed back to the employer by prior agreement. Depending on the nature and allegations of the action, coverage may be afforded under the contractual liability section of the employer s commercial liability policy or the employer s liability section of the employer s workers compensation policy. 19 Action-over Exclusion ISO CGL policies contain language that excludes bodily injury to (1) an employee of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured s business; or 20 (c) The spouse, child, parent, brother or sister of that employee as a consequence of Paragraph (1) above. 14

15 Action-over Exclusion This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone. This exclusion does not apply to liability assumed by the insured under an insured contract. 21 Professional Services Exclusion Coverage for administering certain kinds of professional services or failure to render such services may be excluded from the CGL policy, depending on the extent of the services provided. The most common exclusion on the typical CGL policy is claims professional negligence or errors and omissions. If the damage resulting from serious negligence on the part of a client or one of their employee s resulted in non-physical damage, the general liability insurance will not cover the suit

16 Excess/Umbrella Liability Excess/umbrella liability insurance typically sits excess of commercial general liability, automobile liability, and employer s liability, and protects insureds against catastrophic loss: Specific lines of insurance must appear on the schedule of underlying coverage for coverage to apply. 23 Excess Liability Excess liability coverage generally is not triggered until the underlying primary limits are exhausted. An excess policy may be written on either a stand-alone or following form basis. o A stand-alone policy relies exclusively on its own insuring agreement, conditions, definitions and exclusions to grant and limit coverage. 24 o A following form policy incorporates by reference the terms, conditions and exclusions of the underlying policy. 16

17 Umbrella Liability An umbrella policy is like an excess policy in that it is written in addition to a primary policy to protect the insured against liability for catastrophic losses that would exceed the limits of affordable primary coverage. An umbrella policy typically insures against certain risks that a concurrent primary policy does not cover. It is a gap filler. 25 By design, it provides first dollar coverage where a primary policy and an excess policy do not. Umbrella Liability An umbrella policy may insure against personal injury when a primary policy only insurers against bodily injury and property damage. By dropping down to provide primary coverage, or by filling a gap in primary coverage, an umbrella policy broadens the insured s primary coverage

18 Insurance-Indemnity Interplay It is necessary (and mandatory in Texas) to combine indemnity protection with liability insurance coverage. Insurance that supports the indemnity can insure that funds are available to satisfy a party s indemnity obligations, and provide a backup source of coverage in case the indemnity provision fails or is declared inapplicable. 27 In combining the two, it is important to style the insurance coverage to support the indemnity without hindering or limiting the coverage provided by either. Key insurance endorsements Additional insured provision Insurance-Indemnity Interplay Provides direct insurance benefit. AI coverage is not conditioned upon the validity of an indemnity agreement unless explicitly stated. Waiver of subrogation provision 28 Because waivers of subrogation have been held to provide protection for uninsured risks, it is important to insure that there is no limitation placed on the waiver of subrogation. 18

19 Conclusion In oil and gas environments hazards are abundant. Dangerous, heavy machinery is involved. Toxic chemicals and weather conditions are constantly changing and putting workers at risk. These difficult and dangerous conditions can often lead to painful, life-threatening or even fatal injuries. 29 Conclusion These oilfield injuries are most commonly caused by: o Explosions or blowouts in tanks or wells o Slips, trips and falls, especially on decks or rigs o Tools and equipment that are improperly maintained or defective o Exposure to harmful chemicals, toxins or fumes o Falling objects, debris or tools o Car accidents, usually involving oil or gas transport vehicles o Collapsing rigs o Improper employee training 30 19

20 Conclusion For those losses that are not preventable, we do our best to mitigate the damage. Risks are transferred through contractual language. The necessary insurance must be purchased to protect our interests. Contracts and policy forms must be reviewed and thoroughly analyzed. 31 Insurance coverage must comply with contractual requirements. 20

21 To enter the drawing for a cash prize affix your personal bar code label here or complete this evaluation online. T6. ENERGY 101 A PRIMER ON CGL EXPOSURES AND INSURANCE Rating scale for all questions: 4 = Excellent 3 = Very Good 2 = Average 1 = Somewhat Disappointing 0 = Very Disappointing Overall rating for this workshop? Cindi Vickers Preparation and quality of information Energy and enthusiasm of delivery Educational focus (not a sales pitch) Comments:

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