Indemnity and Insurance Issues in Commercial Leases and Related Agreements Gary Rachlin William W. Pugh ACC Houston Chapter Meeting May 8, 2012 A Professional Law Corporation New Orleans Lafayette Houston 1 New Orleans Lafayette Houston 1
Overview General indemnity and insurance issues Commercial leasing agreements Effect of different insurance and indemnity provisions Anticipating and mitigating the impact of a casualty Related Agreements Purchase and sale agreements Financing documents Construction contracts Texas Construction Anti-indemnity Statute New Orleans Lafayette Houston 2
Survey: Top 4 Texas Country and Western Songs from Texas Risk Managers 4. How Can I Miss You... If You Won't Go Away? 3. You Got The Ring... And I Got The Finger 2. I Still Miss You Baby... But My Aim's Gettin' Better And the # 1 song is... 1. If I Had Shot You When I First Wanted To... I'd Be Out Of Prison By Now New Orleans Lafayette Houston 3
General Indemnity and Insurance Issues New Orleans Lafayette Houston 4
Insurance Your insurance protects against your loss or liability Liability insurance - provides defense and indemnity if insured is sued for negligence or other liability Property coverage reimburses insured for loss or damage to its property Protection for you from someone else s insurance requires: Additional insured protection Waiver of subrogation Coverage should be primary (at least for risks assumed by naming party/initial insured) New Orleans Lafayette Houston 5
Four types of indemnity Promise-Based We really mean it Fault-Based Often at-law Indemnity Activity or Time-Based Can be fault-based or regardless of fault ( ROF ) Control-Based or Status-Based Usually apply ROF otherwise, essentially fault-based New Orleans Lafayette Houston 6
ROF Indemnity If indemnity is intended to cover your negligence: Must have valid magic language to obtain indemnity/release for one s own negligence Texas Fair Notice Doctrine Express negligence Conspicuousness Indemnity (and magic language ) must be broad enough to extend to all intended beneficiaries Dovetail indemnity with insurance New Orleans Lafayette Houston 7
Commercial Leasing Agreements New Orleans Lafayette Houston 8
General Insurance and Indemnity Issues Who is Responsible for Claims? New Orleans Lafayette Houston 9
General Indemnity Issues May be different types of indemnity provisions Promise-based i.e., reps and warranties Fault-based i.e., third party claims Activity-based i.e., hazardous activities Status-based i.e., leasehold, building, personnel/invitees Have to evaluate which should apply ROF New Orleans Lafayette Houston 10
Important for Tenant to Identify and Allocate Liability and Casualty Risks Who has obligation to maintain insurance? Who benefits from the insurance and related indemnity/release agreements? Aside from liability, what is the impact of a casualty on: Repairs Rent New Orleans Lafayette Houston 11
Obligation to Maintain Insurance Who is required to maintain insurance? Liability insurance Casualty/property insurance Building? Leased premises? Landlord should at least have basic casualty insurance on building Tenant needs protection under casualty insurance (and preferably a release) New Orleans Lafayette Houston 12
Who Benefits From the Insurance? One benefit is solvency of insured party But to get direct protection from Landlord s insurance, Tenant should try to get express insurance protection and/or indemnity or release Release or indemnity ROF Waiver of subrogation or additional insured status Does the release/indemnity/insurance protection cover personal injury/death claims and property damage? New Orleans Lafayette Houston 13
Release of Liability and Waiver of Subrogation Property damage Waiver of subrogation by itself helps, but that only applies to the insurance company Landlord should also release Tenant from liability Beware! - some release/waiver provisions are limited to the extent of insurance proceeds Tenant should seek full waiver, particularly if Landlord responsible for determining insurance limits New Orleans Lafayette Houston 14
Landlord Should Bear Risk of Underinsurance At a minimum, Tenant should require full waiver for type of coverage provided by applicable policy regardless of policy limit or deductible If there is a $100 million loss, but Landlord s policy limit is only $80 million, the release should cover Tenant for the entire $100 million loss If the release is limited to amounts actually paid by the insurer, then the release would only apply to $80 million, leaving Tenant (and any guarantor) liable for up to $20 million New Orleans Lafayette Houston 15
Liability Insurance If there is no additional insured protection or indemnity ROF, liability claims will be at law Fault-based indemnity is not much different Insurance will provide solvency protection, nothing more New Orleans Lafayette Houston 16
Practical Impact of a Casualty New Orleans Lafayette Houston 17
Landlord s Obligation to Repair Landlord typically carries property insurance for building, including leased premises Tenant typically insures personal property and above standard Tenant improvements Can Landlord terminate the lease in case of casualty? If Landlord elects to repair, is Landlord s repair obligation limited to insurance proceeds? If Landlord has the right to choose, but elects not to terminate, Landlord should be obligated to repair completely regardless of insurance proceeds New Orleans Lafayette Houston 18
Decision to Repair or Terminate Does Landlord have the unilateral right to make this decision? Can be a big issue for Tenant if Tenant has paid for significant Tenant improvements (as opposed to Landlord funding the cost) The more money that Tenant invests in Tenant improvements, the more Tenant needs to be part of deciding whether to terminate the lease in case of casualty New Orleans Lafayette Houston 19
Scope of Repair Many leases provide that Landlord s obligation to restore the Premises is to building standard If Tenant, whether through its own upfront investment or through payment of additional rent, is obtaining above-building standard improvements, some leases require Tenant to pay for the repair of those in case of casualty If Landlord will not agree to pay for actual tenant improvements, Tenant should make sure it has its own insurance coverage New Orleans Lafayette Houston 20
Abatement of Rent if Tenant is Negligent Many leases provide that if there is a casualty and Tenant cannot occupy its premises, rent will be reduced in a fair and equitable manner However, many leases also provide that if the casualty resulted from the fault or negligence of Tenant, rent will not be reduced Such provision needs to be revised if at all possible Landlord should cover that risk with insurance Tenant is paying part of Landlord s insurance cost New Orleans Lafayette Houston 21
Related Agreements New Orleans Lafayette Houston 22
Purchase and Sale Agreements Often have a general time-based indemnity Seller liable for claims from events occurring prior to effective date (on Seller s watch ) and vice versa Often includes environmental liabilities Promise-based indemnity for breach of reps and warranties New Orleans Lafayette Houston 23
Financing Agreements Broad indemnity in favor of Lender Borrower tries to carve out Lender s negligence and willful misconduct Currently common to see broad indemnity for environmental liabilities that applies ROF and is intended to prevent any claim against Lender Borrower may want to negotiate an end-point and a carve out for Lender s negligence New Orleans Lafayette Houston 24
Construction Contracts Typically three major risk allocation issues: Liability claims often knock for knock ROF Property damage often knock for knock ROF or some variation Loss or damage to the Work often covered by insurance (Builders All Risk or Construction All Risk) with contractor responsible for some portion of loss depending on fault and amount of deductible but protected for amounts in excess Indemnity scope and structure is a big issue Insurance is used to back up the indemnities New Orleans Lafayette Houston 25
Texas Construction Anti-Indemnity Act New Orleans Lafayette Houston 26
Legislative History Bill submitted to address problem for Owner Controlled Insurance Programs ( OCIPs ) Wanted to make sure OCIP policy would provide insurance protection for some minimum period of time beyond performance New Orleans Lafayette Houston 27
OCIP Bill was Hijacked All that remains of original bill is Section 151.051 requires OCIP policy that provides general liability insurance coverage to provide completed operations insurance coverage for a minimum period of three years Section 151.151 added to prohibit indemnity provisions and certain insurance protection New Orleans Lafayette Houston 28
INSURANCE CODE TITLE 2. TEXAS DEPARTMENT OF INSURANCE SUBTITLE C. PROGRAMS AFFECTING MULTIPLE LINES OF INSURANCE CHAPTER 151. CONSOLIDATED INSURANCE PROGRAMS SUBCHAPTER A. GENERAL PROVISIONS SUBCHAPTER B. GENERAL REQUIREMENTS SUBCHAPTER C. REQUIREMENTS RELATED TO INDEMNIFICATION SUBCHAPTER D. NON-WAIVER New Orleans Lafayette Houston 29
SUBCHAPTER A. GENERAL PROVISIONS Sec. 151.001. DEFINITIONS. In this chapter: (1) "Consolidated insurance program means a program under which a principal provides general liability insurance coverage, workers' compensation insurance coverage, or both that are incorporated into an insurance program for a... construction project. (8) "Principal" means the person who procures the insurance policy under a consolidated insurance program. New Orleans Lafayette Houston 30
Sec. 151.001 DEFINITIONS (cont d) (2) "Construction project" means construction, remodeling, maintenance, or repair of improvements to real property. The term includes the immediate construction location and areas incidental and necessary to the work.... (3) "Contractor" means any person who has entered into a construction contract or a professional services contract and is enrolled in the consolidated insurance program. New Orleans Lafayette Houston 31
Sec. 151.001 DEFINITIONS (cont d) (5) "Construction contract" means a contract, subcontract,... entered into or made by an owner, architect, engineer, contractor,... for the design, construction, alteration,... repair, or maintenance of, or for the furnishing of material or equipment for, a building, structure,... or other improvement to or on... real property, including moving, demolition, and excavation connected with the real property. (6) "Indemnitor" means a party to a construction contract that is required to provide indemnification or additional insured status to another party to the construction contract or to a third party. New Orleans Lafayette Houston 32
SUBCHAPTER C. REQUIREMENTS RELATED TO INDEMNIFICATION Sec. 151.101. APPLICABILITY. (a) This subchapter applies to a construction contract for a construction project for which an indemnitor is provided or procures insurance subject to: (1) this chapter; or (2) Title 10. (b) Subsection (a) applies regardless of whether the insurance is provided or procured before or after execution of the contract. New Orleans Lafayette Houston 33
Sec. 151.102. AGREEMENT VOID AND UNENFORCEABLE. Except... 151.103, a provision in a construction contract, or in an agreement collateral to..., is void and unenforceable as against public policy to the extent that it requires an indemnitor to indemnify, hold harmless, or defend a party, including a third party, against a claim caused by the negligence or fault, the breach or violation of a statute, ordinance, governmental regulation, standard, or rule, or the breach of contract of the indemnitee, its agent or employee, or any third party under the control or supervision of the indemnitee.... New Orleans Lafayette Houston 34
Sec. 151.103. EXCEPTION FOR EMPLOYEE CLAIM. Section 151.102 does not apply to a provision in a construction contract that requires a person to indemnify, hold harmless, or defend another party to the construction contract or a third party against a claim for the bodily injury or death of an employee of the indemnitor, its agent, or its subcontractor of any tier. New Orleans Lafayette Houston 35
Sec. 151.104. UNENFORCEABLE ADDITIONAL INSURANCE PROVISION. (a) Except as provided by Subsection (b), a provision in a construction contract that requires the purchase of additional insured coverage, or any coverage endorsement, or provision within an insurance policy providing additional insured coverage, is void and unenforceable to the extent that it requires or provides coverage the scope of which is prohibited under this subchapter for an agreement to indemnify, hold harmless, or defend. (b) This section does not apply to [an OCIP policy] New Orleans Lafayette Houston 36
Sec. 151.105. EXCLUSIONS. This subchapter does not affect: (1) an [OCIP] insurance policy... ; (2) a cause of action for breach of contract or warranty that exists independently of an indemnity obligation... ; (3) indemnity provisions contained in loan and financing documents, other than construction contracts to which the contractor and owner's lender are parties... ; (4) general agreements of indemnity required by sureties as a condition of execution of bonds for construction contracts; (5)... workers' compensation laws of this state; (6)... governmental immunity laws of this state; New Orleans Lafayette Houston 37
Sec. 151.105. EXCLUSIONS (cont d) (7) agreements subject to [TOAIA]; (8) a license agreement between a railroad company and... ; (9) an indemnity provision [for] copyright infringement; (10) an indemnity provision... pertaining to: (A) a single family house, townhouse, duplex, or land development directly related thereto; or (B) a public works project of a municipality; or (11) a joint defense agreement entered into after a claim is made. New Orleans Lafayette Houston 38
SUBCHAPTER D. NONWAIVER Sec. 151.151. NONWAIVER. A provision of this chapter may not be waived by contract or otherwise. New Orleans Lafayette Houston 39
Where Are We Now? New Orleans Lafayette Houston 40
CAIA Impact is Primarily Limited to Property Liability Exposure Indemnity available for bodily injury/death claims Limited to employees or subcontractors Indemnity can be owed to other party or a third party Insurance still available for bodily injury/death claims Additional insured protection still enforceable Section 151.104 only prohibits insurance to the extent it would provide coverage for a prohibited agreement to indemnify, hold harmless, or defend New Orleans Lafayette Houston 41
What Protection for Property Damage? Carry your own insurance nothing prohibits insurance protection for party obtaining insurance Current industry approach Owner carries property insurance on its own property and gives some benefit to the contractor Owner either carries or self-insures liability for damage to the work (but usually caps contractor s exposure) New Orleans Lafayette Houston 42
Best Case Argument CAIA does not prohibit owner of property from insuring its property and releasing its claim against the other party Releases are not prohibited No prohibition of waivers of subrogation Arguably nothing to prevent property owner from releasing all claims, regardless of fault, and requiring its insurers to waive subrogation New Orleans Lafayette Houston 43
Rationale Statute only prohibits indemnity and additional insured, which address liability claims An owner should always be able to release his own claim and require his insurer to do the same Consistent with standard practice Avoids duplicate insurance New Orleans Lafayette Houston 44
Conclusion New Orleans Lafayette Houston 45
Conclusion Insurance provisions in leases are an important part of risk allocation Release and indemnity provisions should dovetail with insurance Anticipate impact of a casualty and attempt to mitigate those risks Indemnity and insurance used differently in different agreements Important to understand difference in purpose, scope, and application of different indemnity provisions and whether intended to apply ROF New Orleans Lafayette Houston 46
Conclusion (cont d) Texas CAIA raises some difficult questions Doesn t prohibit indemnity for bodily injury/death claims Doesn t apply if TOAIA is applicable As respects property damage, your own insurance is unaffected Also, there is a good argument that releases and waivers of subrogation are not prohibited New Orleans Lafayette Houston 47
Conclusion (cont d) Best protection is understanding and anticipating the risks Choose the best option under the circumstances If there is a problem... New Orleans Lafayette Houston 48
New Orleans Lafayette 49 Houston 49
If Problems do Occur Learn to Cope Flooding in Ireland New Orleans Lafayette Houston 50