Samantha Ip Clark Wilson LLP tel D/RJR/

Transcription

1 by Samantha Ip Clark Wilson LLP tel D/RJR/

2 TABLE OF CONTENTS A. INTRODUCTION...1 B. GENERAL INFORMATION ON THE TYPES OF LIABILITY INSURANCE GENERAL LIABILITY INSURANCE POLICIES...2 Wrap-Up Insurance Policies PROFESSIONAL LIABILITY INSURANCE POLICIES...3 Claims- Made vs. Occurrence Basis...5 C. TYPES OF PROFESSIONAL LIABILITY POLICIES PRACTICE INSURANCE PROJECT INSURANCE...7 D. PRACTICAL ADVICE WHEN OBTAINING CONSULTANTS LIABILITY INSURANCE...9 E. CONCLUSION...11

3 A. INTRODUCTION Architects and engineers are being held to higher standards of conduct than in the past, and the number of lawsuits, and their potential awards continue to grow. Consultants are continually exposed to the possibility of claims being made against them for negligent acts, errors, or omissions in connection with the services they provide. In order to avoid the financial peril that is commonly associated with these claims, consultants must consider obtaining liability insurance. The benefits of liability insurance cannot be easily dismissed. Liability insurance allows the consultant to rely on the insurance provider to be responsible for the payment of any court awarded damages or negotiated settlements up to the limit of the policy, less any deductible. In addition, the insurer has a duty to defend an insured s claim until the policy s limit is exhausted, and to pay for any legal defence costs associated with a legal claim. The purpose of this paper is to provide information on the types of insurance available to consultants, some general information on what is typically covered or excluded under such insurance policies, and some practical advice when considering the purchase of consultants insurance. B. GENERAL INFORMATION ON THE TYPES OF LIABILITY INSURANCE The two main types of liability insurance are comprehensive general liability insurance (often referred to as CGL insurance) and professional liability insurance (often referred to as E&O insurance). Both types of coverage are necessary to properly protect a consulting organization from financial loss. D/RJR/

4 p General Liability Insurance Policies General liability insurance protects against claims arising from non-professional activities and business operations. It will protect an organization in the event the organization or any of its employees causes bodily injury or property damage to others and becomes legally obligated to pay damages. General liability insurance is standardised and relatively easy to obtain. It is often provided in a packaged policy with other coverages, such as property insurance. It is sometimes called a business office package policy. Most general liability policies issued to consultants contain exclusions for professional liability claims and other contract performance claims. The IBC Form 2100, for example, provides that this policy does not apply to bodily injury or property damage for which liability has been contractually assumed. There is an exception for insured contracts, but those are defined to exclude: that part of any contract or agreement that indemnifies an architect, engineer or surveyor for injury or damage arising out of: 1. preparing, approving or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or 2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage. For the most part, CGL policies do not provide insurance coverage for what is considered professional services, except in rare circumstances. The B.C. Court of Appeal has found that if the work done by a professional could have been done by a technician, then that work is not professional and, therefore, is not excluded by the errors and omissions exclusions 1. Subsequent decisions, however, have limited the applicability of that concept. 1 Chemetics International Ltd. v. Commercial Union Assurance Company of Canada

5 p. 3 Wrap-Up Insurance Policies Wrap-up insurance is a form of project insurance and is a type of general liability policy. It allows owners and contractors the convenience of dealing with one insurer for claims arising from general liability claims associated with one individual project. Each policy can be tailor made to the particular project to insure all project participants including the owner, the general contractor, subcontractors, architects and engineers. Wrap-up insurance usually provides all project participants with high limit insurance. The policy is intended to insure third party exposures for all participants of a project and can provide cross liability against each party to the policy. The policy period is tailored to the lenght of the project. A specific period of coverage applies after that, usually up to a maximum of 24 months. Like other project policies, it eliminates the administrative cost of each participant acquiring insurance and assists in eliminating disputes amongst insurers. In response to a claim against a consultant, insurers frequently enter into coverage disputes over which policy should respond. As with all comprehensive general liability policies, wrap up insurance policies typically have errors and omissions exclusions. Issues often arise as to whether the work done by an architect or an engineer is entirely excluded. Coverage disputes relating to overlapping coverage are also common. When a claim is made against a insured under a liability policy, the CGL policies which respond are those which were on risk at the time of loss. The time of loss, however, is often over a period of time in a construction defects claim. In that case, a number of different CGL policies will respond to a claim, in addition to the wrap up policy. Where a period of time on risk is covered by a CGL policy and a wrap up policy, there is overlapping coverage. Insurers will then negotiate on the sharing of the risk. Often, they do not agree. 2. Professional Liability Insurance Policies Professional Liability insurance is designed to protect consultants and consulting organisations from financial loss and civil liability for negligent acts, errors or omissions arising out of the performance of professional services. Liability insurance requirements differ across

6 p. 4 jurisdictions and individual professions. For example, members of the Architectural Institute of British Columbia are not required to have professional liability insurance, although it is strongly recommended 2 by the Institute. In Ontario, members of the Ontario Association of Architects must obtain coverage 3. There are numerous sources of professional liability claims that the consultant must consider. The consultant may face professional liability claims as a result of their negligence from: owners, where damages from deficiencies in the design or the work incur damages contractors, where, as a result of delays or additional costs, incur damages; third parties, where damages are incurred as a result of problems during construction or from defects after completion; and other consultants, where additional costs are incurred as a result of delays or changes. Professional Liability insurance, or E&O insurance, is typically provided by stand-alone professional liability policies, separate from other liability policies. In order to determine rates, consultants are commonly required to submit their professional qualifications, details of their staff and the type of work they have and will perform. Professional liability policies typically provide coverage for the cost of losses associated with situations involving professional liability. These policies also cover cost to defend an action, which can be quite substantial even if liability is not found. Professional liability policies are typically written on a claims made basis. 2 Bulletin 66, June 1998, updated November s. 34 General, R.R.O. 1990, Reg. 27

7 p. 5 Claims- Made vs. Occurrence Basis Most professional liability insurance policies are written on a claims-made basis, whereas most general liability policies are written on an occurrence basis. Under an occurrence policy, coverage is triggered at the time the injury or damage occurred. In most construction project settings, the time of damage may be difficult to determine. Some claims may take time to manifest, and the deterioration occurs over time. As a result, the actual occurrence date may be difficult to pinpoint and most likely over a period of time. As a consequence, multiple insurers may be involved over the manifestation time period if the consultant has switched insurance providers. The involvement of multiple insurers often leads to a dispute as to which insurer should be responsible for the claim when it is actually made. In these circumstances, insurers typically adopt the time on risk theory, where each insurer agrees to be responsible for a percentage of the defence and indemnification costs calculated by that insurer s time on risk (the policy period) in comparison to the entire period of loss. Occurrence policies are generally seen as unsuitable for construction projects as the monetary claim limit on the policy when it was first purchased may be insufficient to cover a claim made years after completing the project, given rising inflation and growing court awards of compensation. The claims made policy attempts to overcome the deficiencies of occurrence policies. Under claims made policies there should be no dispute as to which insurance provider bears the costs of the loss. If a policy is valid at the date of claim, and coverage is granted, then that insurer must respond to the claim and bear its costs. Given that most professional liability policies are for a one or two year duration, the consultant should be able to determine if the dollar value limits in the policy will adequately cover the damage awards the courts are currently ordering. Another advantage of the claims made policy is its lower cost to the insured. Claims made policies allow the insurance underwriter to better quantify their risk. When the policy is undertaken, the underwriter will be fully aware of the consultant s present and past projects, their

8 p. 6 claims history, and most importantly, the coverage period. The underwriter s risk is limited to the duration of the policy. Since the risk is contained to a known period, the coverage rates can be adjusted accordingly. One potential problem that can arise in claims-made policies occurs when a consultant must increase its policy limit to comply with the demands of an owner of a particular project. After the project is complete the consultant may lower the coverage to the previous limit. Under claims-made policies, a subsequent claim will only be covered to the present limit of the policy. If the consultant believed that the increased coverage was required in the first place, it likely should be maintained for some time after completion. The highest risk in construction projects is considered to be between six months before completion and three years after it is substantially completed. The most serious draw back to the claims made policy is that the coverage must be maintained. Once the policy period ends, the coverage, and its protection ends. The policy must be constantly renewed to maintain continuous coverage. C. TYPES OF PROFESSIONAL LIABILITY POLICIES professionals. There are two kinds of professional liability insurance coverage available to 1. Practice Insurance Architects and engineers can purchase a "practice" policy that applies to all of the work in a consultant s practice, except for the work which is expressly excluded by the wording of the particular policy. Practice policies cover errors, omissions or negligent acts in the performance of professional services. Activities that are commonly excluded are: Fraud; Cost Estimates; Projects in which the consultant has a financial interest;

9 p. 7 Consultant services that are not part of the insured profession; Fines, penalties and punitive damages; Actual construction activities performed by the consultant; Pollution; and Express warrantees, guarantees and indemnities. Consultants who are involved in design/build projects may seek a design/build endorsement on their practice insurance policy. The term "design/build" refers to the project delivery system in which an owner contracts with a single entity for the design and construction of a project. The use of design/build as a project delivery system is on the rise. Statistics show significant growth over the past decade. Design/build projects are seen as beneficial to the consultant as the consultant has the ability to take control of entire project, and there is a potential for fewer disputes, particularly between contractor and design professional since they are now part of the same team. Design/ build policies commonly cover only the design professional team, not any contractor if the design professional is contracting out the construction work on behalf of the owner. The design/ build endorsement usually modifies a number of exclusion clauses found in a standard practice policy and replaces them with clauses more applicable to construction activities. 2. Project Insurance The second type of professional liability insurance is project insurance, or project specific liability insurance. This type of insurance is applicable only to the particular project for which it was purchased. Project insurance is a small segment of the consultant insurance market, but is growing in importance. Project insurance policies typically provide professional liability coverage to the group of design professionals for claims arising from a specific construction project. Project

10 p. 8 policies are most appropriate for larger, more complex projects where the design team is composed of a head consultant firm and other sub consultants. Project policies are commonly obtained by the owner/developer of the construction project or the lead design firm. In return, owner/developer or the lead consultant hope to receive discount in consultant fees, as these professionals will receive the benefit of added insurance coverage without an increase in their practice insurance premiums. Project insurance is annually renewable. The policies are characteristically of a higher limit and span multi-years. The coverage is usually in force from the beginning of the construction project including the design stage, through construction, plus three to ten years after completion. Most underwriters will back date project policies to the date of initial design when the policy is subsequently obtained. Typically, practice liability policies will contain an exclusion clause excluding coverage where there is existing project coverage. Therefore, consultants should consider endorsing the project onto an existing practice policy to ensure coverage for the period after the project policy term expires. The consultant must remember to obtain practice insurance upon the expiry of the project insurance. Project insurance offers advantages to the members of the design team over traditional error and omissions policies. Project insurance is normally non-cancellable and has a dedicated limit of insurance. The practice policy will not be eroded by claims under the project and the project policy will not eroded by claims under the practice policy. An individual project may require a higher policy limit. Obtaining a project policy will eliminate the need to purchase higher limits under a practice policy. Since the cost of a project policy is typically paid by the owner of the project, insurance costs may be eliminated for the design firms for the duration of the project policy. Consultants involved in the project who do not possess a practice policy will not have to purchase their own coverage to participate on the project. Project policies place less administrative burden upon the consultant as the client commonly purchases the policy and there is no need to continuously renew it.

11 p. 9 Since project policies cover the entire design team, there are fewer lawyers and fewer insurers involved if there is a claim. This commonly leads to a more expedient settlement as there is less finger pointing and disputes amongst the design team s components. Project policies can be difficult to obtain depending upon the size and complexity of the project and the consultants involved. The policies pose significant problems for underwriters as they must consider the entire design group s potential liabilities over an extended period of time. Only higher valued construction projects are suitable for project policies. Project policies are expensive but the premiums can be reduced with higher deductibles. D. PRACTICAL ADVICE WHEN OBTAINING CONSULTANTS LIABILITY INSURANCE Trying to decide which liability policy to purchase, how much insurance to obtain and for how long can be an intimidating process. The following are some practical points for your consideration 4 : 1. Understand the Policy In choosing an insurance policy, you should understand the scope and nature of the insurance coverage offered: (a) What time period does the policy cover? Does the policy limit the period within which the events giving rise to liability must fall? (b) What types of claims are covered? Services customarily performed by an architect or an engineer, or professional services for which the architect or engineer is qualified? 4 The Canadian Law of Architecture And Engineering, 2nd Edition, McLachlin, Wallace, & Grant, Butterworths 1994.

12 p. 10 For the latter case, if the qualification of the architect or engineer to perform the service specified are questionable, coverage may be denied. (c) What activities are covered by the policy? Not all of the duties required of a professional under the contract may be covered by the policy. (d) What are the exclusions? 2. Know Your Insurer An insurance policy is only as good as the insurer behind it: (a) Claims handling and defence capability: Construction claims are considered more complex. Do the claims staff have the requisite experience? How are claims reported and processed? What are the qualifications and experience of the claims personnel? How promptly does the insurer respond when a claim is reported? How are defence lawyers selected? (b) Does the insurer provide other insurance related services? Does the insurer provide continuing loss prevention education? (c) What is the financial strength and permanence of the insurer?

13 p. 11 This consideration is important because claims often develop after a long delay and will take a long time to resolve. (d) Is the insurer cost competitive with other insurers on similar coverage? Keep in mind that inexpensive insurance which leaves gaps in coverage will not provide an architect or an engineer with adequate future security. 3. Full Disclosure To The Insurer Have you disclosed all materials facts to the insurer on which the latter will need to assess the risk, including any known or suspected risks? Failure to do so can disqualify you from coverage. 4. Is the monetary coverage adequate? (a) This is factor should be considered in the context of what other insurance is available at a particular time or on a particular project. 5. Is the deductible reasonable or acceptable? E. CONCLUSION It is important to remember that an insurance policy is a contract between the insurer and the insured. Technically, the contracting parties can agree to insure anything and everything. The realities of risk, however, have caused insurers to typically not insure certain activities or events. A recent example is the water ingress exclusion applicable to E&O policies. Architects and engineers should also keep in mind that the broader the coverage, the more the insurance will cost at the outset. The key is to find the right balance; obtaining insurance for foreseeable risk at a reasonable price. Effective risk management means not only getting insurance, but getting the right type of insurance and coverage in the circumstance, with the right insurer, for the right price.