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What may strike us about the old insurance requirements is the insurance terminology used. There is reference to “comprehensive general liability insurance” including endorsements listed as “broad form property damage,” “broad form blanket contractual liability,” “cross liability,” “XCU” and “additional named insured.” The limits are also listed as split limits – one applicable to bodily injury, and another lesser limit applicable to property damage.Similarly, the auto insurance requirement refers to “comprehensive auto liability” and workers’ compensation insurance includes the “broad form all states endorsement.” Further, all of the requirements are to be evidenced by a certificate of insurance that provides certificate holder a 30 days advance notice of cancellation. It becomes readily apparent that these requirements are so outdated as to be virtually useless – the coverage, endorsements and limits listed are obsolete and are no longer available. We must start from the beginning.
Learning the Scope of Insurance and Risk Analysis
After a substantial amount of research, including acquiring an understanding of the scope of today’s most common insurance policies, we can summarize the risks confronting ABC company’s and conclude that our goal is to write the insurance requirements to provide broad protection, while at the same time ensuring the requirements are both reasonable and understandable to the contractors. We’ll use today’s insurance terminology, including requiring policy form numbers, in order to be specific and make it easier for both ABC company and the contractors to determine if the required coverage is being purchased.
As a general matter, we want the contractors to have limits more in keeping with today’s custom and practice, and includes ABC company as an additional insured. In fact, when considering the order she wants the contractor’s policy to respond, we know it is important to make sure the insurance requirements clearly state that the liability policies on which ABC company will be an additional insured will respond first – the contractor’s policies will respond before our own liability policies – and that the contractor’s liability insurance must agree to not seek contribution from our own policies – the oft-mentioned “primary and noncontributory” order of coverage.
With respect to workers’ compensation insurance, our first concern is to make sure all persons that are or could be covered by the contractor’s workers’ compensation insurance are in fact covered. We’re well aware that ABC company might have to pay the state statutory workers’ compensation benefits of the contractor’s or subcontractors’ employees if they have not purchased the state-required workers’ compensation insurance. Finally, the principle of subrogation and how it differs from contribution will require the contractor’s insurers to waive their rights of subrogation against us.
The Resulting Insurance Minimum Requirements
Now we can write the following insurance requirements as basic requirements applicable to all contractors, subcontractors and sub-subcontractors for consideration by ABC’s legal counsel in drafting the bid specifications as well as the resulting construction contracts:
Commercial General Liability insurance using ISO’s CG 00 01 or its substantial equivalent with ABC as an additional insured using ISO’s CG 2038 or CG 2010 or its substantial equivalent for ongoing operations and ISO’s CG 20 37 or its substantial equivalent for completed operations with the following limits:
- $1 million Each Occurrence
- $1 million Personal and Advertising Injury
- $2 million General Aggregate – per Project using ISO’s CG 25 03 or its substantial equivalent
- $2 million Products-Completed Operations Limit
Contractor must disclose to ABC any endorsements that limit or exclude coverage customarily provided by ISO’s CG 00 01. ABC reserves the right, prior to acceptance of the contractor’s bid, to either require additional types of liability coverage or require greater limits based on the nature of the operations being performed by the contractor.
The contractor’s insurers will provide insurance to ABC on a primary basis and agree not to seek contribution from ABC’s insurance by using ISO’s CG 20 01 or its substantial equivalent. Contractor’s insurers also agree to waive rights of subrogation against ABC using ISO’s CG 24 04 or its substantial equivalent.
Contractor’s Commercial General Liability insurance will remain in force with annual policy periods for the period of the statute of repose applicable to this project. Alternatively, if a “project-specific” General Liability policy is used to satisfy these requirements, it must be endorsed to provide extended completed operations for the period of the statute of repose applicable to this project.
Business Auto Coverage Form using ISO’s CA 00 01 or its substantial equivalent including liability coverage for all autos owned, rented, hired or borrowed by the contractors as well as liability coverage for mobile equipment subject to compulsory insurance or financial responsibility laws or other motor vehicle insurance laws with the following minimum limit:
- $1 million – Any One Accident – Combined Single Limit
ABC reserves the right, prior to acceptance of the contractor’s bid, to require greater limits based on the nature of the operations being performed by the contractor.
Workers’ Compensation and Employers’ Liability
Workers’ compensation and employers’ liability insurance using NCCI’s WC 00 00 00 B including coverage for all persons subject to the Workers’ Compensation Act as well as coverage for sole proprietors, partners of a partnership, members of a limited liability company or officers of a corporation whether or not such coverage is optional under the Workers’ Compensation Act, unless workers’ compensation coverage for such sole proprietors, partners, members or officers is prohibited by the Workers’ Compensation Act.
Contractor’s workers’ compensation insurance shall pay all benefits required to be paid under the Workers’ Compensation Act and employers’ liability insurance will be written with the following minimum limits:
- Bodily Injury by Accident – $500,000 Each Accident
- Bodily Injury by Disease – $500,000 Policy Limit
- Bodily Injury by Disease – $500,000 Each Employee
Contractor’s workers’ compensation and employers’ liability policy will list the state of the project in item 3A of the policy’s Information Page and will list on Part Three – Other States Insurance item 3C of the policy’s Information “all states except the states listed in 3A or any monopolistic state.” Further, contractor’s workers’ compensation and employers’ liability policy is to include a waiver of subrogation endorsement using NCCI’s WC 00 03 13 or its substantial equivalent.ABC reserves the right, prior to acceptance of the contractor’s bid, to either require additional types of workers’ compensation or employers’ liability coverage or require greater employers’ liability limits based on the nature of the operations being performed by the contractor.
Umbrella or Excess Liability
In addition, contractor shall provide umbrella or excess liability insurance providing in excess of the underlying Commercial General Liability, Business Automobile Liability and Employers’ Liability insurance above, with the following minimum limits:
- $5 million – Each Occurrence
- $5 million – Annual Aggregate (where applicable in the underlying)
Such umbrella or excess liability policy shall provide substantially the same coverage as the underlying Commercial General Liability (including ABCe as an additional insured), Business Automobile Liability or Employers’ Liability insurance and shall expressly provide that the umbrella or excess policy will drop down over a reduced or exhausted aggregate limit of the underlying insurance. The umbrella or excess policy shall also be primary insurance to ABC (including primary insurance to ABC’s own Commercial General Liability and Umbrella policies) and contractor’s umbrella insurer agrees not to seek contribution from ABC’s insurance.ABC reserves the right, prior to acceptance of the contractor’s bid, to require greater limits based on the nature of the operations being performed by the contractor.
Any subcontractors engaged by the contractor shall comply with all of the above requirements.
Now we have a very keen sense of the difficulty in writing insurance requirements that protect our employer but are also reasonable, clear and specific for the contractor. We also understand that regardless of what is contained in the insurance requirements, a contractor or subcontractor may not comply and therefore ABC must be prepared to bend when it is reasonable to do so. Thus, it is our recommendation to the owner to remain diligent in overseeing and enforcing the insurance requirements and to keep in mind the absolute importance that those persons actually handling the enforcement have a strong understanding of insurance and its role in the construction project.
This article was originally published by AmWINS Group, Inc., a leading wholesale distributor of specialty insurance products and services. AmWINS publishes The Edge, a monthly email with informative and timely articles for P&C and benefits insurance agents and brokers. To sign up to receive The Edge or for more information about AmWINS, visit amwins.com.
Legal Disclaimer: Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Discussion of insurance policy language is descriptive only. Every policy has different policy language. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. Please refer to your policy for the actual language.