Performance Bonds and CGL Insurance In Construction Projects: Navigating the Interplay Between Insurance and Surety

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1 Presenting a live 90-minute webinar with interactive Q&A Performance Bonds and CGL Insurance In Construction Projects: Navigating the Interplay Between Insurance and Surety Minimizing Risks and Maximizing Recovery for Defective Workmanship and Property Damage WEDNESDAY, JULY 15, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: April A. Atkins, Partner, Kirwin Norris, Orlando, Fla. David M. Adelstein, Partner, Kirwin Norris, Orlando and Fort Lauderdale, Fla. 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 In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about CLE credit processing 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 PERFORMANCE BONDS on CONSTRUCTION PROJECTS P R E S E N T E D B Y : A P R I L A. A T K I N S, E S Q. K I R W I N N O R R I S, P. A. A A K I R W I N N O R R I S. C O M J U L Y 1 5,

6 PERFORMANCE BONDS on CONSTRUCTION PROJECTS AGENDA N a t u r e of t h e S u r e t y s h i p R e l a t i o n s h i p P e r f o r m a n c e B o n d C o v e r a g e S u r e t y s D e f e n s e s S u r e t y s R e m e d i e s 6

7 NATURE OF THE SURETYSHIP RELATIONSHIP SURETYSHIP IS NOT INSURANCE P e a r l m a n v. R e l i a n c e I n s u r a n c e Co., U. S. 132, n. 19, 83 S. Ct , 9 L. Ed. 2 d 190 ( 1962) 7

8 NATURE OF THE SURETYSHIP RELATIONSHIP D I S T I N C T I O N S B E T W E E N S U R E T Y B O N D S A N D I N S U R A N C E : 1. T h r e e - P a r t y A g r e e m e n t v. Two- P a r t y A g r e e m e n t 2. S u r e t y s R i g h t of I n d e m n i t y 3. P r e m i u m s 4. S c o p e of C o v e r a g e 5. R i g h t s and R e m e d i e s 8

9 NATURE OF THE SURETYSHIP RELATIONSHIP 1. S u r e t y THREE PARTY AGREEMENT 2. O b l i g e e 3. P r i n c i p a l 9

10 NATURE OF THE SURETYSHIP RELATIONSHIP RIGHT OF INDEMNITY : 1. C o m m o n Law R i g h t of I n d e m n i f i c a t i o n 2. C o n t r a c t u a l I n d e m n i t y 10

11 NATURE OF THE SURETYSHIP RELATIONSHIP PREMIUMS: 1. P o o l of R e s e r v e s to C o v e r L o s s e s of N u m e r o u s I n s u r e d s 2. C a s e - by- C a s e C a l c u l a t i o n of E c o n o m i c R i s k 11

12 PERFORMANCE BOND COVERAGE Cost of Completion Defective Work Delay Damages Penal Sum Limitation 12

13 PERFORMANCE BOND COVERAGE PROJECT COMPLETION Financing the Defaulted Principal Secure a Completion Contractor Cash Payout to Obligee 13

14 PERFORMANCE BOND COVERAGE DEFECTIVE WORK Defects Discovered Prior to Completion Warranty Work Latent Defects 14

15 PERFORMANCE BOND COVERAGE D e l a y D a m a g e s L o s s of U s e / L o s t P r o f i t s / F i n a n c i n g C h a r g e s I n c r e a s e d L a b o r a n d M a t e r i a l C o s t s d u e to D e f a u l t L i q u i d a t e d D a m a g e s 15

16 PERFORMANCE BOND COVERAGE PENAL SUM LIMITATION P r i n c i p a l / C o v e r e d D a m a g e s L i t i g a t i o n A t t o r n e y s F e e s 16

17 SURETY S DEFENSES Principal s Defenses and Claims Set-off f or amounts owed on a s eparate Project Obligee s Improper Payment Inadequate or Untimely Notice of Default 17

18 SURETY S DEFENSES Cardinal Changes Statute of Limitations Lack of Standing of the Performance Bond Claimant 18

19 SURETY S REMEDIES Right of Subrogation Common Law Indemnity Contractual Indemnity 19

20 SURETY S REMEDIES Right to Settle Obligee s Claims against the Principal/ Bond Right to Settle Principal s Claims against the Obligee Collateral Deposits 20

21 SURETY S REMEDIES Assignment to proceeds on other Projects not in default Exoneration Attorney Fees 21

22 CGL Coverage in Construction Projects Presented by: David M. Adelstein, Esq. Kirwin Norris July 15, 2015

23 A. CGL BASICS (1) PURPOSE OF CGL (THIRD PARTY LIABILITY) POLICY: 2 main purposes or duties: 1) defend insured 2) indemnify insured from 3 rd party claims *duty to defend broader than duty to indemnify & triggered by allegations of complaint that would give rise to potential coverage **This is why if insurer provides defense, it is often under a reservation of rights to deny coverage / duty to indemnify 23

24 CGL (Commercial General Liability) COVERAGE CGL IS NOT A PERFORMANCE BOND! [A] performance bond is a form of insurance that guarantees the completion of the general contractor s work on the project. This [5 th ] Circuit has previously noted the significance of the difference between these two forms of insurance [CGL and performance bond]: A CGL policy generally protects the insured when his work damages someone else s property. The your work exclusion [in the policy] prevents a CGL policy from morphing into a performance bond covering an insured s own work. Carl E. Woodward, L.L.C. v. Acceptance Indemnity Insurance Co., 2014 WL , *7 (5th Cir. 2014)(internal quotations and citations omitted). 24

25 A. CGL BASICS (2) COVERAGE APPLICABLE TO CONSTRUCTION PROPERTY DAMAGE- TRIGGERED BY AN OCCURRENCE Bodily injury/death SAME TRIGGER 25

26 A. CGL BASICS 26

27 A. CGL BASICS (3) WHAT IS AN OCCURRENCE THAT TRIGGERS POTENTIAL COVERAGE SECTION V- DEFINITIONS 27

28 A. CGL BASICS An occurrence is defined as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Id., V 12. The term accident is not defined. [W]here the term accident in a liability policy is not defined, the term... encompasses not only accidental events, but also injuries or damage neither expected nor intended from the standpoint of the insured Assurance Co. of America v. Lucas Waterproofing Co., Inc., 581 F.Supp.2d 1201, 1208 (S.D.Fla. 2008) 28

29 A. CGL BASICS Under Section V of the Policies, the term occurrence is defined to mean an accident which takes place during the policy period, or that portion of a policy period of a continuous or repeated exposure to conditions, which causes personal injury, property damage or advertising liability neither expected nor intended by the insured. Canal Ins. Co. v. Montello, Inc., 2013 WL , *8 (N.D.Okla. 2013) 29

30 A. CGL BASICS What is completed operations? - Coverage for bodily injury / property damage that occurs post-completion 30

31 A. CGL BASICS NOW, THE CONFUSION!?!?!?! EXCLUSIONS & EXCEPTIONS TO EXCLUSIONS 31

32 A. CGL BASICS TORT INDEMNITY 32

33 A. CGL BASICS *This is why indemnification / hold harmless provisions are important in construction contracts as insured assumes the tort liability of another [GC / Owner] to pay for bodily injury or property damage to a third person [GC / Owner]. 33

34 III. CGL BASICS-FAULTY WORKMANSHIP No coverage during construction for damage to your work CGL not designed to pay for repair damages to your scope, but resulting damage or damage caused by your scope 34

35 III. CGL BASICS-FAULTY WORKMANSHIP Wilshire Insurance Co. v. Birch Crest Apartments, Inc., 2011 WL (4th DCA 2011)- Painter during construction spattered paint on glass windows and doors; it tried to remove spatter and, in doing so, damaged glass Issue: Is the damage to the glass covered under CGL? NO! Since damage was to property that painter was performing its operations, and it arose out of the natural and intended scope of the operations (since cleaning paint spatter is natural scope of painter s operations), this exclusion to coverage applied 35

36 III. CGL BASICS-FAULTY WORKMANSHIP Since the painter s incorrect work was on the glass windows and doors (within its scope) this exclusion to coverage applied 36

37 III. CGL BASICS-FAULTY WORKMANSHIP 37

38 III. CGL BASICS-FAULTY WORKMANSHIP Liberty Mut. Fire Ins. Co. v. MI Windows & Doors, 131 So.3d 15 (Fla. 2d DCA 2013) - Sub purchased sliding glass doors from mfg. to install in condo. Sub added transoms to doors. Doors were defective. Issue: Is there coverage to mfg. for defective doors? No. Barred by your product exclusion. The defective doors was mfg. s product. Mfg. argued that by the sub adding transoms to the doors, the sub materially changed the doors so they were no longer mfg. s product. Court found that if alchemy completely alters original product, then your product exclusion may not apply, but adding transoms does not materially alter doors to negate exclusion 38

39 III. CGL BASICS-FAULTY WORKMANSHIP Exception to Exclusion 39

40 III. CGL BASICS-FAULTY WORKMANSHIP U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871 (Fla. 2007)- sub s defective soil compaction caused damage to home (foundations and drywall, etc.) post-completion Issue: Is there coverage to GC based on subcontractor exception to your work exclusion for completed operations? YES! * Since sub s damage caused resulting damage to other work, GC s insurer responsible for coverage 40

41 III. CGL BASICS-FAULTY WORKMANSHIP Note: **Endorsements have been issued that eliminated the subcontractor exception to the your work exclusion [T]he court finds that the your work exclusion and the endorsement removing the subcontractor's exception from the your work exclusion preclude coverage for the underlying claims of property damage in this case Builders Mut. Ins. Co. v. Kalman, 2009 WL , *5 (D.S.C. 2009) (Owner of multimillion dollar home noticed water damage post-completion; GC s insurer issued endorsement eliminating subcontractor exception to the your work exclusion) 41

42 III. CGL BASICS-FAULTY WORKMANSHIP But, other jurisdictions disagree with FL law: Westfield Ins. Co. v. Sheehan Const. Co., Inc., 580 F. Supp.2d 701 (S.D.Ind. 2008)- GC built home and used subs; post-completion owner experienced water damage Issue: Under Indiana law, is there coverage for resulting damage under GC s CGL since sub s performed work? NO! [W]hen Subcontractor A's faulty workmanship damages Subcontractor B's undamaged work, any costs associated with the repair of any component of the houses built by [Subcontractor B], whether existing of faulty construction or nondefective work, are not property damage under the CGL policy and Indiana law. This is so because under Indiana law, a general contractor's product is the entire project or house which he built and sold, including all component work done by subcontractors. Therefore, in this case, any repair costs by Sheehan due to the faulty workmanship of its subcontractors is not property damage. Id. (internal quotations & citations omitted) 42

43 III. CGL BASICS-FAULTY WORKMANSHIP Other exclusions to consider issued through endorsements: Mold & Dry/Wet Rot Note: Consider water damage claims Residential Exclusion (Applies to condos / apartments) Note: Consider sub working on condo or apartment with this endorsement 43

44 III. CGL BASICS-FAULTY WORKMANSHIP Additional Insured Coverage (see endorsement to policy as not all endorsements are equal) Most endorsements only provide additional insured coverage for ongoing operations NOT COMPLETED OPERATIONS You want additional insured status for completed operations 44

45 III. CGL BASICS-FAULTY WORKMANSHIP 45

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