Companies must think broadly about the. Additional Insured Coverage in the Construction Setting

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1 Additional Insured Coverage in the Construction Setting A Tremendous Asset Requiring Careful Attention to Detail by Lynda A. Bennett and Andrew S. Zimmerman In today s challenging economic climate, it is more important than ever for companies in the construction field to evaluate their risk management practices to ensure their liability risks are effectively addressed through insurance and other contractual risk transfer mechanisms. Diligence exercised during the contracting and insurance policy procurement processes will go far in maximizing insurance assets and minimizing liability exposure. Companies must think broadly about the concept of risk management. Purchasing insurance policies to cover the company s business operations is one way to manage risk. Another method of risk management and the focus of this article is holding suppliers, vendors, subcontractors, and other downstream industry participants (collectively, subcontractors) responsible for the risks created by the provision of their services and products through procurement of additional insured coverage under their liability policies. While many companies recognize the opportunity to use other people s insurance to manage risk, they often fail to implement best practices to maximize the insurance protection available through those other people, and thus fail to avoid unanticipated and unnecessary gaps in coverage. This article provides an overview of the steps necessary to procure broad and effective additional insured coverage, and addresses certain limitations that often plague additional insureds issues that can be avoided or mitigated through careful contract drafting and diligence in reviewing subcontractors policies. Contracting for Coverage as an Additional Insured A trade contract between an upstream contractor and a subcontractor requiring the provision of additional insured coverage should state expressly that the subcontractor agrees to name the upstream contractor as an additional insured under the subcontractor s general liability (or other) policy. It is not sufficient to merely require a subcontractor to produce a certificate of insurance. Such certificates typically do not, in and of themselves, create additional insured rights under a subcontractor s insurance policies. 1 It is also important to note that courts often find that the contract between the upstream contractor and the subcontractor does not bind an insurer who is a stranger to the contract and was not otherwise aware of its terms. 2 Therefore, during the contracting process, the upstream contractor should not rely on the terms of its trade subcontract alone, and should actually review the subcontractor s insurance policy to confirm that either: 1) the policy includes an endorsement specifically identifying the upstream contractor as an additional insured (or amending the policy s definition of named insured or insured to include the upstream contractor), or 2) the policy includes a blanket additional insured endorsement, where the insurer agrees to extend additional insured rights to any person or entity the subcontractor agrees, by way of written contract or agreement, to name as an additional insured. If either endorsement exists, the upstream contractor will be assured of its right to directly pursue the subcontractor s insurer in the event of a claim or loss. Upstream contractors also should require subcontractors to agree to separately and directly defend, indemnify, and hold the upstream contractor harmless for any and all claims in any way arising from or connected to the subcontractor s work. Such indemnification agreements can sometimes circumvent limitations that insurers attempt to place on additional 62 NEW JERSEY LAWYER August 2012

2 insured coverage, because the general liability policy may offer coverage to the subcontractor/named insured for liabilities contractually assumed in this manner. Thus, in the event that some defect arises in the upstream contractor s claim for additional insured benefits, the upstream contractor will have recourse to the subcontractor directly, and the subcontractor, in turn, will be able to look to its insurer for coverage. Such direct indemnity agreements are often subject to heightened judicial scrutiny and/or to laws limiting the scope of enforceable indemnity agreements limitations that are themselves worthy of an article. 3 Therefore, direct indemnity agreements must be drafted with the utmost care in order to be enforceable and trigger the subcontractor s coverage. The Scope of Coverage Available to Additional Insureds Coverage for Liabilities Arising Out of Work Performed by Subcontractors/ Named Insureds Additional insured endorsements generally provide coverage for claims against the upstream contractor relating to the work performed by the subcontractor/named insured. Typical endorsement language extends coverage for liability arising out of the work performed by the subcontractor/named insured. In other words, for example, a slip-and-fall claim asserted against a general contractor by an employee of the steel subcontractor will potentially trigger the additional insured coverage available through the liability insurance of both the steel subcontractor and any other subcontractor whose work, products, presence, or other connection to the project in any way figured in the alleged facts of a claim. New Jersey courts have interpreted the phrase arising out of broadly, extending additional insured coverage under the policies of subcontractors whose work was only tenuously connected to a claim. 4 Therefore, when in doubt, a claim for additional insured coverage should be tendered to all insurers covering subcontractors whose work is in any way connected to a loss. In response to such broad interpretations of the coverage available to additional insureds, the insurance industry has often tinkered with additional insured endorsements; whether a given change accomplishes the coverage restriction the industry is hoping for is rarely clear, and the source of much litigation. Accordingly, additional insured coverage may contain traps for the unwary. One of the more significant changes was instituted in 2004, when the industry debuted a new version of the blanket additional insured endorsement that removed reference to liability arising out of the operations of the subcontractor/named insured, and replaced that phrase with reference to liability caused, in whole or in part, by...the acts or omissions of the [subcontractor/] named insured. 5 The apparent purpose of the revised language was to limit the insurer s responsibility to the additional insured to covering liability that is legally vicarious of the subcontractor/named insured s acts or omissions, rather than merely arising out of their operations. 6 Under the older language, New Jersey courts have clearly held that the subcontractor/named insured s lack of negligence was irrelevant to whether the additional insured was entitled to coverage under that insurer s policy. 7 Further, insurers may attempt to rely on this new language to avoid a duty to defend an additional insured. Under the old language, additional insureds needed to only show that a claim arose from the subcontractor/named insured s operations, which New Jersey courts interpreted to require at most only a showing that a claimant had alleged facts sufficient to show causation in fact by the subcontractor/ named insured s work or products, and not necessarily legal or proximate cause. 8 Also, an insurer recently avoided extending additional insured coverage under the new language where the additional insured was allegedly independently negligent. 9 The full effect of the 2004 modification in New Jersey will take time to measure, as there is no published opinion to date interpreting the new language. However, upstream contractors should be cautious, as the New Jersey Appellate Division held that no duty to defend or indemnify existed with respect to an additional insured s own actual or alleged negligence in the unpublished Schafer opinion quoted above. 10 In addition, courts in other jurisdictions have interpreted this language to require a finding that the upstream contractor s liability was legally vicarious of the subcontractor/named insured s liability before additional insured status may be achieved. 11 Therefore, if circumstances permit, upstream contractors should specify in their contracts that additional insured coverage be provided via a specifically identified Insurance Services Office form using the more favorable arising out of language. Upstream contractors must then diligently follow up to ensure such an endorsement is actually included in the subcontractor s policy. Completed Operations Coverage May be Barred in Additional Insured Endorsements Additional insured coverage for a subcontractor s completed operations is highly desirable, as it is the coverage most likely to respond to construction defect claims asserted long after a project is complete and turned over to the owner. Yet some additional insured endorsements provide coverage only with respect to liability arising out of NEW JERSEY LAWYER August

3 [subcontractor s] ongoing operations performed for the upstream contractor/ additional insured. When this language is used, insurers argue that once a subcontractor s performance of its contractual duties comes to an end, future claims against the upstream contractor relating to that subcontractor s work are not covered. This can leave upstream contractors exposed to construction defect claims that arise long after a project is completed. 12 Accordingly, where possible, upstream contractors should insist on an additional insured endorsement that requires completed operations coverage protecting against claims arising after the subcontractor has completed its work or left a jobsite. Additional insureds also should be aware that New Jersey s courts have interpreted the phrase ongoing operations broadly in favor of coverage for additional insureds, especially when a subcontractor provides ongoing and/or follow up services at a jobsite. A prime example of this is Employers Ins. Co. v. Harleysville Ins. Co. 13 Though not a construction defect case, it is instructive. In Employers, a New Jersey federal court held that the insurer for a snow-removal contractor was required to cover the owner of the subject property as an additional insured, where the owner was sued for a slip-and-fall occurring several days after the snow-removal contractor finished clearing the property following a snowstorm. 14 The snowremoval contractor was contracted to provide services on an as-needed basis between November and March. 15 The insurer argued that because the contractor had completed the snow-removal operations relating to a recent storm several days before the slip-and-fall, the claim did not relate to ongoing operations. 16 The court rejected the insurer s argument, and held that the contractor s operations were ongoing throughout the duration of the contract period, not merely when the contractor was actually present and performing work on the subject property. 17 In response to such broad interpretations of the ongoing operations language by courts, many versions of the blanket additional insured endorsement now include additional language purporting to further restrict additional insured coverage to claims arising during the time when the subcontractor/ named insured s operations are taking place. The exclusionary language typically states that additional insured coverage is not available for liabilities occurring after : (1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed; or (2) That portion of your work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. In East Coast Residential, for example, the court denied additional insured coverage to an upstream contractor whose subcontractor defectively installed 167 decks, resulting in property damage. 18 The court held: These exclusions are unambiguous and stated in a manner that is not in the least confusing. They plainly state that the insurance for [the additional insured] does not apply to property damage that occurs after [the subcontractor/named insured s] work is completed and put to its intended use. 19 Accordingly, the developer was not covered as an additional insured under its subcontractor s policy. Prospective additional insureds can avoid this difficulty by specifying, in their trade subcontracts, that additional insured coverage for completed operations must be procured. Where that may not be feasible, an alternative approach is to define as broadly as possible the scope of the subcontractor s work on the project, so the date of completion is as inclusive as possible. For example, where appropriate a trade contract may include a requirement that the subcontractor is available and required to provide consultation services for the project on a regular basis concerning its work until the entire project is complete. Thus, a steel fabricator s subcontract may be defined to include not only fabrication and delivery of steel, but also advisory services regarding how best to deploy the steel in the field. If a claim against the upstream contractor should arise after the steel has been fabricated and furnished to the project, but before the steel has been fully erected, the additional insured may argue that the fabricator s operations were ongoing and that its work had not yet been fully put to its intended use. 20 Still, this latter approach is not preferred, as it invites fact-sensitive judicial scrutiny of the nature of the subcontractor s operations, and whether they were truly ongoing at the time of the occurrence. In any case, companies must stay abreast of developments in the insurance industry with respect to completed operations coverage. It appears that a movement is underway to develop and market a new insurance product for latent defect claims. However, the product is being crafted in London, where purchasing outside the box policies are relatively easy, but getting claims paid historically has proven to be difficult. 64 NEW JERSEY LAWYER August 2012

4 Other Insurance Difficulties Another frequent pitfall of additional insured coverage is the question of which insurance policy pays first when the additional insured can theoretically access coverage from both its own general liability insurer and its subcontractor s insurer as an additional insured. This issue, too, can be addressed or at least mitigated through careful contract drafting and general due diligence at the contracting/policy procurement stage. The contract between the upstream contractor and the subcontractor should expressly require the subcontractor to procure additional insured coverage applying on a primary and non-contributory basis relative to any insurance maintained by the upstream contractor. Insurers often argue that they are not bound by a contract between their named insured/subcontractor and an upstream contractor, and that a contractual election between those parties to make the subcontractor s policy primary is not enforceable against the insurer in the face of contrary policy language. Nevertheless, it is important to include such a requirement, because: 1) the reasonable expectations of the policyholder regarding the coverage provided can, in some circumstances, overcome even unambiguous policy language contrary to those expectations, 21 and a contractual expression of that expectation as between the two insureds is strong evidence vis-à-vis the insurer, evidence that will be especially important should the policy be found to be ambiguous; 2) some additional insured endorsements actually do incorporate certain terms of the underlying contract; 22 and 3) it will serve as the basis for a breach of contract claim against the subcontractor in the event the coverage primacy preference is not honored. Because the primacy of coverage depends first and foremost on the actual terms of the subcontractor s policy, and only secondarily on coverage requirements specified in the trade contract, upstream contractors should closely review both the terms of the additional insured endorsement and the policy s other insurance clause, which is usually found in the conditions section of a general liability policy. Many versions of additional insured endorsements provide expressly that the coverage will be excess over any other valid and collectible insurance maintained by the additional insured. These clauses can work to defeat the additional insured s purposes in procuring additional insured coverage in the first instance. 23 Ideally, upstream contractors should seek the removal and replacement of such an endorsement with an additional insured endorsement that clearly indicates the additional insured coverage will apply on a primary and noncontributory basis, notwithstanding anything else in the policy or the additional insured s own policies to the contrary. At a minimum, the mere absence or removal of the excess language from the additional insured endorsement itself, coupled with the existence of unfavorable language in the policy s other insurance clause, can create an ambiguity on the primacy of coverage, which can potentially be resolved in the additional insured s favor by application of the reasonable expectations doctrine again, a reason to specify coverage primacy in a trade contract. Conclusion As the foregoing discussion demonstrates, it is critically important to: 1) clearly establish in the trade subcontract the expected scope of additional insured coverage; and 2) read the insurance policies that have been secured to satisfy the additional insured coverage obligation to ensure compliance with the letter and the spirit of the trade subcontract. The insurance industry routinely alters the nature and scope of coverage provided to additional insureds, and will often be willing to negotiate broader or narrower terms. In order to avoid unexpected gaps in coverage, upstream contractors must diligently review the coverage actually procured, and consider whether any terms contained therein could eliminate a category of coverage they expect or need to obtain through their subcontractors insurers. Endnotes 1. See, e.g., Scottsdale Ins. Co. v. Somerville Fidelco Associates, LP, No , 2010 WL *1, *3 (D.N.J., Feb. 22, 2010) (holding that such a certificate conferred no rights on its holder pursuant to language of certificate); Porowski v. Rehm, 2008 WL *1, *4-*5 (N.J. Super. App. Div., Dec. 22, 2008) (holding that certificate of insurance created no right to coverage for the certificate holder). 2. See, e.g., Krastanov v. K. Hovnanian/ Shore Acquisitions, LLC, No. A T2, 2008 WL *1, *6 (N.J. Super. App. Div., Aug. 6, 2008) (finding that the actual terms of the policy controlled the coverage determination, not the underlying trade subcontract). 3. See, e.g., Azurak v. Corp. Prop. Investors, 175 N.J. 110, 112 (2003) (discussing requirements and limitations of indemnification agreements). 4. See County of Hudson v. Selective Ins. Co., 332 N.J. Super. 107, (App. Div. 2000) (extending additional insured coverage under general contractor s policy to project owner where employee of a potential subcontractor was injured and sued project owner); Harrah s Atlantic City, Inc. v. Harleysville Ins. Co., 288 N.J. Super. 152, (App. Div. 1996) (holding that injury allegedly occurring in parking garage after NEW JERSEY LAWYER August

5 shopping trip triggered the additional insured coverage under the liability policy issued to the store where shopping took place); Marshall v. Raritan Valley Disposal, 2012 WL *1, *7 (N.J. Super. App. Div. March 13, 2012) (extending additional insured coverage under waste hauler s policy to municipality where municipality was sued by estate of woman killed while loading a stationary garbage truck). 5. See Craig F. Stanovich, Additional Insured Changes in the CGL, IRMI.com, May 2004, available at 2004/stanovich05.aspx (emphasis added). 6. Id. See also, e.g., Garcia v. Fed. Ins. Co., 969 So.2d 288, (Fla. 2007) (noting this difference in intent). 7. See Harrah s, 288 N.J. Super. 152, (noting that the arising out of language does not make coverage contingent on whether the [named insured] had any liability for the accident ). 8. See, e.g., Sears Roebuck & Co. v. Nat l Union Fire Ins. Co., 340 N.J. Super. 223, 235, 237 (App. Div. 2001) (holding that the duty to defend an additional insured exists so long as viable allegations exist implicating the named insured s products as a cause in fact of the claims against the additional insured). 9. See Schafer v. Paragano Custom Bldg., Inc., No. A T WL *1, *3 (App. Div., Feb. 24, 2010) (denying additional insured coverage to general contractor whose own negligence caused the liability claim for which it sought coverage as an additional insured under its subcontractor s policy). 10. Id. at 2010 WL *1, * See, e.g., Garcia, 969 So.2d at (holding to this effect, and noting other courts that have held similarly). 12. See, e.g., East Coast Residential Assocs., LLC v. Builders Firstsource- Northeast Grp., LLC, A T1, 2012 WL *1, *1 (N.J. Super. App. Div., Jan. 11, 2012). 13. No , 2008 WL *1, *4-*5 (D.N.J., Aug. 26, 2008). 14. Id. 15. Id. at * Id. at * Id. at * WL at * Id. 20. See Torres v. Tamburri Assocs., Inc., 2010 WL *1, *13 (N.J. Super. App. Div., Dec. 3, 2010) (reversing summary judgment in favor of insurer because evidence existed that subcontractor/named insured continued to provide services to construction project even after delivering its product). 21. See, e.g., Werner Indus., Inc. v. First State Ins. Co., 112 N.J. 30, 35 (1988). 22. See, e.g., Lafayette College v. Selective Ins. Co., No WL *1, *3 (3d Cir., Nov. 10, 2011). 23. See, e.g., Marshall v. Raritan Valley Disposal, No. A T4, 2012 WL *1, *14 (N.J. Super. App. Div., March 13, 2012) (requiring contribution by upstream contractor/additional insured s own insurer pursuant to the other insurance clauses in the policies of both the upstream contractor and the subcontractor/named insured). Lynda A. Bennett is a member of Lowenstein Sandler, PC, and chair of the firm s insurance coverage practice group. She routinely represents policyholders in insurance coverage disputes. Andrew S. Zimmerman is an associate of Lowenstein Sandler, PC, and a member of the firm s insurance coverage practice group. 66 NEW JERSEY LAWYER August 2012

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