Ontario Higher Education Risk Management Symposium. CURIE Pollution Coverage Property & Liability. May 23-24, 2013 University of Guelph

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1 Ontario Higher Education Risk Management Symposium CURIE Pollution Coverage Property & Liability May 23-24, 2013 University of Guelph

2 Property (First Party) Pollution Coverage The property policy contains two pollution related endorsements that provide coverage for pollution cleanup arising from an insured physical damage loss. The two endorsements are contained in both the CURIE Primary Property Policy and the Excess Property Policy. 2

3 Property (First Party) Pollution Coverage The first endorsement Pollution Endorsement is new for 2013 and was agreed to by all excess program Insurers/Reinsurers Property Insurance Endorsement No 005 Pollution Endorsement This policy does not insure against loss or damage caused by, resulting from, contributed to or made worse by actual, alleged or threatened release, discharge, escape or disposal of contaminants or pollutions, unless as a consequence of a physical damage of the type insured by this policy. 3

4 Property (First Party) Pollution Coverage The second endorsement Asbestos Endorsement is also new on the CURIE 2013 policy. It restricts coverage for Asbestos clean up to Named Perils and only covers that part of the Asbestos which has been physically damaged by one of the Named Perils listed. PROPERTY INSURANCE GENERAL ENDORSEMENT NO 006 ASBESTOS ENDORSEMENT A. This policy insures asbestos physically incorporated in an insured building or structure, and then only that part of the asbestos which has been physically damaged during the policy period by one of these Listed Perils: Fire; Explosion; Lightning; Windstorm; Hail; Direct impact of vehicle, aircraft or vessel; Riot or civil commotion; Vandalism or malicious mischief; or accidental discharge of fire protective equipment. 4

5 Property (First Party) Pollution Coverage ENDORSEMENT NO 006 (cont d) This coverage is subject to all limitations in the policy to which this endorsement is attached and, in addition, to each of the following specific limitations: 1. The said building or structure must be insured under this policy for damage by that Listed Peril. 2. The Listed Peril must be the immediate, sole cause of the damage to the asbestos. 3. The Insured must report to Underwriters the existence and cost of the damage as soon as practicable after the Listed Peril first damaged the asbestos. However this policy does not insure any such damage first reported to Underwriters more than 12 (twelve) months after the expiration, or termination, of the policy period. 5

6 Property (First Party) Pollution Coverage ENDORSEMENT NO 006 (cont d) 4. Insurance under this policy in respect of asbestos shall not include any sum relating to: i. Any faults in the design, manufacture or installation of the asbestos. ii. Asbestos not physically damaged by the Listed Peril including any governmental or regulatory authority direction or request of whatsoever nature relating to undamaged asbestos. B. Except as set forth in the foregoing Section A, this policy does not insure asbestos or any sum relating thereto, Except as otherwise provided by this endorsement, all other terms, conditions and exclusions of the policy shall have full force and effect. 6

7 Property (First Party) Pollution Coverage Mold and Fungi While not a pollutant, mold and fungi get lumped in with pollution coverage discussions. This exclusion is also contained in the Excess Property Policy. 2.2 Perils Excluded part (c) (c) Loss or damage caused by or resulting from dampness or dryness of atmosphere, mould or fungi, wet or dry rot, heating, evaporation, marring, scratching, rust or corrosion, contamination, change in colour or finish unless such loss or damage to the property insured is caused directly by a peril not otherwise excluded herein; 7

8 Property Pollution Coverage Summary 1. Coverage for pollution clean up as a result of physical damage to property insured except 2. Asbestos clean up as a result of named perils physical damage to insured property 3. Mold and Fungi excluded 8

9 CURIE Primary Policy ($5 Million) The Pollution Coverage section is a very lengthy standard industry pollution section (mandatory language). The important part is that the whole clause is substituted by the exception (as highlighted) this removes the 120 hour detection, 120 hour reporting requirement. 9

10 3.7 POLLUTION LIABILITY EXCLUSION This insurance does not apply to: a) "Bodily Injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal or escape of pollutants: (i) (ii) (iii) (iv) at or from premises owned, rented or occupied by the Insured; at or from any site or location used by the Insured or others for the handling, storage, disposal, processing or treatment of waste which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for the Insured or any person or organization for whom the Insured may be legally liable; at or from any site or location on which the insured or any contractors or subcontractors working directly or indirectly on behalf of the Insured are performing operations: 1) if the pollutants are brought on or to the site or location in connection with such operations; or 2) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, the pollutants. b) Any loss, cost, or expense arising out of any governmental direction or request that the Insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants. 10

11 POLLUTION LIABILITY (cont d) Sub-paragraphs (i) and (iv) (1) of paragraph (a) of this exclusion do not apply to "bodily injury" or "property damage" caused by: (a) (b) heat, smoke or fumes from a hostile fire. As used in this exclusion, a "hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. an unexpected or unintentional discharge, dispersal, release or escape of pollutants provided such discharge, dispersal, release or escape of pollutants: (1) results in the injurious presence of pollutants in or upon land, the atmosphere, drainage or sewage system, watercourse or body of water; and (2) is detected within 120 hours after the commencement of the discharge, dispersal, release or escape; and (3) is reported to C.U.R.I.E. within 120 hours of being detected; and (4) does not occur in a quantity or with a quality that is routine or usual to the business of the Insured. "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapour, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 11

12 POLLUTION LIABILITY (cont d) It is agreed that this entire exclusion shall not apply to any actual, alleged or threatened discharge, dispersal, release or escape which is sudden and accidental, subject, however, to the reduced Limits of Liability as stated hereunder: It is agreed that the Limits of Liability stated in item 3 of the Declarations, are amended to read as follows in respect to liability for the actual, alleged or threatened discharge, dispersal, release or escape of any solid, liquid, gaseous, or thermal irritant or contaminant, including but not limited to smoke, vapour, soot, fumes, acids, alkalis, chemicals and waste, including as waste, materials to be recycled, reconditioned or reclaimed, which is sudden and accidental: 3. Limit of Liability $5,000,000 per occurrence $5,000,000 aggregate for Products Hazard 12

13 First Excess Liability Policy - $20 Million Excess of $5 Million This policy contains the standard IBC 120 hour detection 120 hour reporting requirement It starts out by taking cover away and the giving it back (with conditions). 13

14 FIRST EXCESS LIABILITY INSURANCE GENERAL ENDORSEMENT NO 007 It is agreed that item 3(a) Environmental Exclusion, is deleted and replaced by the following: Limited Pollution Liability Coverage Exclusion This Policy does not apply to: A. "Bodily injury", "personal injury", or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants: 1) At or from premises owned, rented or occupied by an Insured; 2) At or from any site or location used by or for an Insured or by others for the handling, storage, disposal, processing or treatment of waste; 3) Which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for an Insured or any person or organization for whom the Insured may be legally responsible; or 4) At or from any site or location on which an Insured or any contractors, or subcontractors working directly or indirectly Insured are performing operations: a) on behalf of an if the pollutants are brought on or to the site or location in connection with such operations; or b) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize the pollutants. 14

15 ENDORSEMENT NO 007 (cont d) B. Any loss, cost, or expense arising out of any governmental direction or request that an Insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants. C. Fines, penalties, punitive or exemplary damages arising directly or indirectly out of the discharge, dispersal, release or escape of any pollutants. Sub-paragraphs 1) and 4 a) of paragraph A of this exclusion do not apply to "bodily injury" or " property damage" caused by: i) heat, smoke or fumes from hostile fire. As used in this exclusion, a "hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. ii) An unexpected or unintentional discharge, dispersal, release or escape of pollutants provided such discharge, dispersal, release or escape of pollutants. a) results in the injurious presence of any pollutants in or upon land, the atmosphere, drainage or sewage system, watercourse or body of water; and b) is detected within 120 hours after the commencement of the discharge, dispersal, release or escape; and c) is reported to us within 120 hours of being detected; and d) does not occur in a quantity or with a quality that is routine or usual to the business of the Insured. 15

16 ENDORSEMENT NO 007 (cont d) "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. It is agreed that if the pollution exclusion in the underlying insurance is more restrictive than the exclusion herein, this policy shall follow the pollution exclusion of the underlying insurance. Except as otherwise provided by this endorsement, all other terms, conditions and exclusions of the policy shall have full force and effect. 16

17 Fungi Exclusion This is an absolute exclusion **The CURIE Primary $5 Million policy does not contain such an exclusion. FIRST EXCESS LIABILITY INSURANCE GENERAL ENDORSEMENT NO 003 Fungi and Fungal Derivatives Exclusion This insurance shall not apply to: a. Any actual or alleged liability arising directly or indirectly, from the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, presence of, spread of, reproduction, discharge or other growth of any "fungi or "spores" however caused, including any costs or expenses incurred to prevent, respond to, test for, monitor, abate, mitigate, remove, cleanup, contain, remediate, treat, detoxify, neutralize, assess or otherwise deal with or dispose of "fungi or " spores"; or 17

18 ENDORSEMENT NO 003 (cont d) b. any supervision, instructions, recommendations, warnings, or advice given or which should have been given in connection with a. above; or c. any obligation to pay damages, share damages with or repay someone else who must pay damages because of such injury or damage referred to in a. or b. above. This exclusion applies regardless of the cause of the loss or damage, other causes of the injury, damage, expense or costs or whether other causes acted concurrently or in any sequence to produce the injury, damage, expenses or costs. For the purpose of this endorsement, the following definitions are added: "Fungi" includes, but is not limited to, any form or type of mould, yeast, mushroom or mildew whether or not allergenic, pathogenic or toxigenic, and any substance, vapour or gas produced by, emitted from or arising out of any "Fungi" or "Spores" or resultant mycotoxins, allergens, or pathogens. "Spores" includes, but is not limited to, any reproductive particle or microscopic fragment produced by, emitted from or arising out of any "fungi". It is further agreed that if the Fungi & Fungal Derivatives exclusion in the underlying insurance is more restrictive than the exclusion herein, this Policy shall follow the fungi and fungal derivatives exclusion of the underlying insurance. 18

19 Asbestos Exclusion Again this is an absolute exclusion The CURIE Primary Policy does not have this exclusion and we would deal with this type of claim under our pollution coverage extension of our policy i.e. a sudden and accidental release of asbestos would fall within the coverage and limit of the Primary Policy. FIRST EXCESS LIABILITY INSURANCE GENERAL ENDORSEMENT NO 004 Asbestos Exclusion It is hereby understood and agreed that this insurance shall not apply to and does not cover any actual or alleged liability whatsoever for any claim or claims in respect of loss or losses, damage, cost or expense directly or indirectly caused by, resulting from or in consequence of, or in any way involving asbestos, or any materials containing asbestos in whatever form or quantity. This exclusion applies regardless of any other contributing or aggravating cause or event that contributes concurrently or in any sequence to the loss, damage, cost or expense. It is further agreed that if the Asbestos Exclusion in the underlying insurance is more restrictive than the exclusion herein, the Policy shall follow the Asbestos Exclusion of the underlying insurance. 19

20 Second Excess Liability Policy - $5 Million Excess of $25 Million This policy is a follow form contract and the Pollution and Asbestos exclusions would follow the First Excess policy terms. The Fungi and Bacteria Exclusion is unique to the Second Excess Policy in that is specifically excludes loss arising from Bacteria hazard (with food and beverage exception) 20

21 This Endorsement Changes the Policy. Please Read it Carefully. FUNGI AND BACTERIA EXCLUSION It is agreed that regardless of whether or not coverage is afforded in the controlling underlying insurance, this policy does not apply to any claim, suit, demand or loss that alleges injury or damage that, in any way, in whole or in part, arises out of, relates to or results from the fungi or bacteria hazard. This exclusion includes, but is not limited to, compliance with any request, demand, order, or statutory or regulatory requirement, or any other action authorized or required by law, or any other claim, suit, demand, loss, cost, or expense arising out of, relating to or resulting from the investigation of, abating, testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, remediating or disposing of, or in any way responding to, or assessing the effects of fungi or bacteria, as well as any loss, costs, fees, expenses, penalties, judgments, fines, or sanctions arising out of, relating thereto or resulting therefrom. 21

22 FUNGI AND BACTERIA EXCLUSION (cont d) This exclusion does not apply to any fungi or bacteria that are on or are contained in food or beverages. As used in this exclusion, fungi or bacteria hazard means: 1. Actual, alleged or threatened exposure to, consumption of, ingestion of, inhalation of, absorption of, existence of or presence of, fungi or bacteria in any manner or form whatsoever; or 2. The actual or alleged failure to warn, advise or instruct related to fungi or bacteria in any manner or form whatsoever; or 3. The actual or alleged failure to prevent exposure to fungi or bacteria in any manner or form whatsoever; or 4. The actual or alleged presence of fungi or bacteria in any manner or form whatsoever, in any place whatsoever, whether or not within a building or structure, including its contents. 22

23 FUNGI AND BACTERIA EXCLUSION (cont d) As used in this exclusion, fungi or bacteria include, without limitation, mold, mildew, yeast, spores, mycotoxins, endotoxins, or other pathogens, as well as any particulates or byproducts of any of the foregoing, either directly or indirectly. This policy will not recognize reduction or exhaustion of the underlying insurance by any claim or suit or payment of loss, cost or expense excluded by this endorsement. All other terms and conditions of this Policy remain unchanged. 23

24 Liability Pollution Coverage Summary 1. CURIE Primary $5 Million Sudden and accidental coverage with no fungi and mold exclusion and no asbestos exclusion. 2. First Excess $20 Million Excess of $5 Million Sudden and accidental with detection and reported limits, with fungi and mold exclusion and asbestos exclusion. 3. Second Excess $5 Million Excess of $25 Million Sudden and accidental with detection and reporting time limits and with fungi, mold and partial bacteria exclusion and asbestos exclusion. 24

25

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