Ask Mike # Subject: Hotel Guest Causes a Titanic Water Damage Loss

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1 Ask Mike # Subject: Hotel Guest Causes a Titanic Water Damage Loss Q. I saw a news story yesterday that got me to thinking about the insurance implications involved. I guess I m something of a coverage wonk, since I see so many situations in everyday life that cause me to think about insurance. The news story was about a hotel guest who had accidentally damaged the sprinkler head in her hotel room, and caused a lot of water damage to her room. There was also some damage to the room immediately beneath her room. I think the total damage was estimated to be around $10,000. I m pretty sure that the hotel s property coverage would apply to water damage from a sprinkler system, but I got to thinking about where this lady would find coverage if the hotel looked to her for repayment, or their insurer subrogated. Thoughts? A. Count me as a member of your coverage wonk club! In fact, there is a small group of insurance buds I work with daily through the IIABA s Virtual University, and we happily refer to ourselves as insurance nerds. I agree that the hotel s property insurance would almost certainly cover the water damage loss; and likewise, for a loss of this size, they or their insurer would quite likely seek reimbursement. In doing some research, I found a surprising number of water damage losses to hotel rooms from guests either hanging clothes from the sprinkler head, or accidentally leaving water running in the tub or sink. In one case, a lady was steaming her business suit while it hung from the sprinkler head, and the heat from the steamer set off the sprinkler system. About 1,000 gallons of water was released, and the damage was over $30,000 which included damage to her room, and the room below. One of my insurance-nerd buddies told me that one of the large hotels he works with estimated that their average water damage loss was $24,000. Thinking about my many years of business travel, I recall often seeing a decal right next to the sprinkler head. The decal was a clothes hanger inside a circle, with a slash drawn through the circle, as a reminder not to hang clothes from the sprinkler head. Sprinkler heads can be attached to either the ceiling or extend from a wall and these are particularly inviting to use as a temporary place to hand clothes, garment bags, etc. You didn t mention whether or not the lady was traveling for business, so let s examine the coverages that might apply under her Homeowners Policy, as well as her employer s CGL. Assume the hotel guest was Jill Smith, who is the CEO of JS 1

2 Enterprises ( JSE ). For the discussion below, also assume both policies are ISO, and remember that proprietary forms can be different. Jill s Homeowners Policy Jill s Section II provides legal liability coverage for bodily injury or property damage for which she becomes legally liable, except as excluded. See the following exclusion: SECTION II EXCLUSIONS Coverage E does not apply to: 3. "Property damage" to property rented to, occupied or used by or in the care of an "insured". This exclusion does not apply to "property damage" caused by fire, smoke or explosion; This is often referred to as the fire legal coverage in the Homeowners Policy. In general, property damage liability does not apply to property which Jill has custody of at the time of loss, but there is an exception if the damage is caused by fire, smoke or explosion. I have learned from various sources over recent years that the industry is considering adding water damage (and possibly other perils) to the excepted causes of loss, along with fire, smoke and explosion. This change would put the coverage in the Homeowners Policy on a similar basis with the CGL see discussion following. Some proprietary forms may already have this broader language. Note, however, that the exclusion only applies to damage done to Jill s room, and not any damage done to property outside her room such as the room below since none of this property is rented, occupied, used by her, or within her care, custody or control. So if she did $30,000 total water damage, but $20,000 of that was to property outside her room, her Section II would pay the $20,000 portion of the loss. But the $10,000 damage done to her room is excluded by exclusion 3. above, since the damage was not by fire, smoke or explosion. There is one additional provision in Section II which would pay a small amount toward such a loss. The Damage To Property Of Others provision (often called voluntary property damage ), pays up to $1,000 ($500 in earlier editions) for damage to property of others. This coverage would apply to damage done to property both inside and outside her room, from any cause not otherwise excluded. Excerpt: SECTION II ADDITIONAL COVERAGES We cover the following in addition to the limits of liability C. Damage To Property Of Others 1. We will pay, at replacement cost, up to $1,000 per "occurrence" for "property damage" to property of others caused by an "insured". 2

3 So the net result for Jill would be that $20,000 of the damage would be covered by regular PD liability, plus $1,000 of the remaining $10,000 would be paid by the Damage To Property Of Others provision, leaving her an uncovered loss of $9,000. If Jill has a personal umbrella, there might be some coverage for property she rents, occupies, or is in her care, custody or control, which is broader than the ISO Homeowners Policy. However, in my experience, a large number of personal umbrellas are little more than follow-form excess over Section II. By the way, this issue of water damage to a rented space also comes into play in the HO-4, for tenants who have water beds and aquariums. So far, for the $30,000 in water damage, after payment by her Homeowners Policy, she is going to come up only $9,000 short. While that s not necessarily good news, it would be much worse if Jill was traveling on business for JSE. Here is the business exclusion: SECTION II EXCLUSIONS E. Coverage E Personal Liability And Coverage F Medical Payments To Others Coverages E and F do not apply to the following: 2. "Business" a. "Bodily injury" or "property damage" arising out of or in connection with a "business" conducted from an "insured location" or engaged in by an "insured", whether or not the "business" is owned or operated by an "insured" or employs an "insured". There has been a long-standing debate in insurance circles (which coverage wonks and insurance nerds relish), about the intended scope of the business exclusion in Section II, as well as the business limits for personal property in Section I. While each case is fact-specific, I did find one case which involved a business traveler (a vicepresident of the company) who was attending an out-of-town business seminar. During a break, he went to his room to pack his luggage, in order to check out later. He accidentally hit the sprinkler head on the wall with his garment bag, causing extensive water damage. His Homeowners Policy, and the CGL of his employer, both initially denied coverage, alleging that the other policy was applicable. The court ruled in favor of the Homeowners insurer s argument that this was within the business exclusion of their policy. The court also held that the damage to the room the vice-president was occupying was excluded under the CGL, but coverage did apply to damage done outside that room. (United Food Service, Inc., et al., Respondents v. Fidelity and Casualty Company of New York, 189 A.D.2d 74 (N.Y. S. Ct. App. Div. Mar. 1993).) JSE s CGL 3

4 The insuring agreement in the ISO CGL provides coverage very similar to the Section II insuring agreement in Jill s Homeowners Policy. Excerpt: SECTION I COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. In addition, both JSE and Jill are insureds. JSE is the Named Insured ( you ), while Jill is an omnibus insured by virtue of being an executive officer/employee. Excerpt: SECTION II WHO IS AN INSURED 1. If you are designated in the Declarations as: d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. 2. Each of the following is also an insured: a. Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. As in the Homeowners Policy, the CGL also has an exclusion for property of others which is being rented or occupied. Excerpt: SECTION I COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 2. Exclusions This insurance does not apply to: j. Damage To Property "Property damage" to: (1) Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; One issue which wonks and nerds like to raise in situations like this is that the exclusion applies to property you own, rent, or occupy. In the lead-in wording at the top of page 1 in the ISO CGL, you is defined as follows: Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy. Thus, while Jill is an insured as an executive officer (or employee), she is not you which refers to the Named Insured JSE. So the argument could be made that the hotel room Jill rented and occupied was not rented or occupied by JSE, and thus exclusion j.(1) does not 4

5 apply to the water damage. The counter-argument is, of course, that in reality, since JSE will eventually pay for the hotel room (either through Jill s use of her corporate credit card, or when Jill is reimbursed for her expense report), JSE in effect did rent the room. In the United Food Service case discussed above, that exact issue was raised, and the court found that the CGL exclusion did apply for damage to the hotel room (although damage done to other property outside the room was covered). However, JSE s CGL still might provide coverage for the water damage inside Jill s room. In the 1998 edition of the ISO CGL, the following was added to exclusion j.: Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section III Limits Of Insurance. (The United Food Service case was decided in 1993, with the damage occurring in November 1990, so at that time, the above exception was not included in the ISO CGL.) Therefore, for the water damage done to Jill s room, exclusion j.(1) provides an exception for property damage done by other than fire (and not otherwise excluded), if the premises is rented for 7 or fewer consecutive days. (Damage by fire often called fire legal coverage is not limited to 7 days.) The CGL provides a separate limit of insurance for this coverage, which is shown on the Declarations page under Damage To Premises Rented To You. In most cases, the standard limit for this coverage is $100,000 (under ISO CGL Manual Rule 23), but which can be increased. Damage done to property outside Jill s room is not affected by this exclusion (since other parts of the hotel are not rented or occupied by Jill or JSE. Thus JSE s CGL would have the entire policy limit for BI/PD under Coverage A available for damage outside Jill s room. Here is how JSE s CGL would handle a $30,000 water damage loss (as discussed above), where $20,000 was for damage outside Jill s room, and $10,000 was for damage inside Jill s room. First, the $20,000 is well within most any CGL s limit (usually $1,000,000). The $10,000 damage done inside Jill s room is comfortably under the CGL s limit of $100,000 for Damage To Premises Rented To You. In my January column for Louisiana Agent, I discussed a similar question on how the CGL responds for damage to a rented space. In that article, the question from another IIABL member dealt with a 5,000 sq.ft. rented warehouse, and the article compares the CGL s Fire Legal coverage to the coverage found in the CP Legal Liability Coverage Form. Here is a link to the January issue: 5

6 Wonks and Nerds rule! Thanks for a great question! 6

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