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

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Performance Bonds and CGL Insurance in Construction Projects: Navigating Interplay Between Insurance and Surety Minimizing Risks and Maximizing Recovery for Defective Workmanship and Property Damage WEDNESDAY, SEPTEMBER 21, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Marc A. Sanchez, Partner, Frantz Ward, Cleveland Patrick R. Kingsley, Chair, Construction, Stradley Ronon Stevens & Young, Philadelphia 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.

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5 COMMERCIAL GENERAL LIABILITY POLICIES Strafford Publications, Inc. Presented by: Marc A. Sanchez, Frantz Ward LLP SEPTEMBER 21, 2016

6 RISK TRANSFER Liability Insurance Commercial General Liability Policy Umbrella Policy Excess Policy Builder s Risk Performance Bond/SDI Contractor s Professional Liability/E&O Contractual Indemnity 6

7 COMMERCIAL GENERAL LIABILITY First line of defense against claims of others Insurance Services Office, Inc. (ISO) Excess vs. umbrella Bodily injury and property damage Occurrence vs. aggregate limits Deductibles vs. SIR s Defense vs. indemnity 7

8 TYPICAL CONTRACTOR INSURANCE REQUIREMENTS CGL - $2 MM Business Auto - $1 MM Umbrella or excess - $5 MM Workers compensation Send schedule of insurance requirements to agent note if flow-down provision Some specified forms may not be available 8

9 DUTY TO DEFEND Duty to Defend requires a civil proceeding Claim arguably or potentially within policy coverage Resultant or consequential damage usually enough Obligation to pay defense costs brings insurer to the table 9

10 DUTY TO DEFEND Only a claim is required Not based on potential; claim must actually fall within policy coverage Usually settlement or verdict; withholding draw money probably enough 10

11 CONTRACTOR S PROFESSIONAL LIABILITY COVERAGE Annual or project basis Covers design liability of contractor Why needed if subcontracted design work and have hold harmless, waiver of subrogation and insurance requirements? Design subcontractor carries low limits Design firm out of business/claims-made policies Policy language limitations in the A/E coverage Value engineering, shop drawings, CM services 11

12 COVERAGE Bodily injury or property damage Caused by occurrence During the policy period Then look to policy exclusions 12

13 BUSINESS RISK EXCLUSIONS Damage to property that particular part Damage to your work subcontractor exception to the exclusion Damage to impaired property or property not physically injured 13

14 INSURED CONTRACT COVERAGE Indemnity agreement in contract Assumption of liability in a contract or agreement Insured would have liability in absence of contract, e.g. property damage and occurrence within policy period CGL will cover indemnitor s obligation; especially important if bankrupt 14

15 CONTACT Marc A. Sanchez (216) Location: 200 Public Square, Suite 3000 Cleveland, OH

16 Performance Bonds Patrick Kingsley, Esquire Stradley Ronon Stevens & Young, LLP 2600 One Commerce Square Philadelphia, PA

17 Discussion Outline Nature of the Suretyship Relationship Performance Bond Coverage Surety s Defenses Surety s Remedies Suretyship v. Insurance Stradley Ronon Stevens & Young, LLP 17

18 The Nature of Suretyship Stradley Ronon Stevens & Young, LLP 18

19 A surety agrees to answer for the debt of another. Stradley Ronon Stevens & Young, LLP 19

20 Why do construction projects often include sureties? Stradley Ronon Stevens & Young, LLP 20

21 Suretyship Involves a Tri-party Relationship Owner = Obligee General Contractor = Principal Bonding Company = Surety Stradley Ronon Stevens & Young, LLP 21

22 Suretyship Involves a Tri-party Relationship General Contractor = Obligee Subcontractor = Principal Bonding Company = Surety Stradley Ronon Stevens & Young, LLP 22

23 The surety is the secondary obligor and stands behind the debts and obligations of the principal. Stradley Ronon Stevens & Young, LLP 23

24 The surety is the secondary obligor and stands behind the debts and obligations of the principal. The surety is typically liable only if the principal defaults. Stradley Ronon Stevens & Young, LLP 24

25 Surety is a credit accommodation. Stradley Ronon Stevens & Young, LLP 25

26 Surety is a credit accommodation. If a principal cannot secure surety credit, it may have to obtain a bank line of credit or deposit cash collateral. Stradley Ronon Stevens & Young, LLP 26

27 The principal owes a duty to the surety to perform and, failing that, to indemnify the surety for any losses it incurs due to the principal s default. Stradley Ronon Stevens & Young, LLP 27

28 How Does a Performance Bond Work? Stradley Ronon Stevens & Young, LLP 28

29 What is a Performance Bond? A guarantee from a financial institution that if a principal defaults, his obligation will be fulfilled up to the penal sum of the bond. Stradley Ronon Stevens & Young, LLP 29

30 Performance Bond Coverage Stradley Ronon Stevens & Young, LLP 30

31 Performance Bond Coverage Completion Defective Work Delay Damages Penal Sum Limitation Stradley Ronon Stevens & Young, LLP 31

32 Project Completion Stradley Ronon Stevens & Young, LLP 32

33 Project Completion Financing the Defaulted Principal Engaging a Completion Contractor Tendering a Completion Contractor Paying the Obligee Stradley Ronon Stevens & Young, LLP 33

34 Defective Work Stradley Ronon Stevens & Young, LLP 34

35 Defective Work Pre-default Defects Warranty Work Latent Defects Stradley Ronon Stevens & Young, LLP 35

36 Delay Claims Stradley Ronon Stevens & Young, LLP 36

37 Delay Damages Lost Profits Lost Use Financing Charges Inefficiency Costs Liquidated Damages Stradley Ronon Stevens & Young, LLP 37

38 Penal Sum Limitation Paying v. Performing v. Declining Stradley Ronon Stevens & Young, LLP 38

39 Surety s Defenses Principal s Defenses Impairment of Collateral Improper Notice Cardinal Changes Statute of Limitations Standing Stradley Ronon Stevens & Young, LLP 39

40 Principal s Defenses A surety s liability is usually no greater than that of its principal. Usually all defenses available to the principal may be asserted by the surety. Stradley Ronon Stevens & Young, LLP 40

41 Impairment of Collateral Stradley Ronon Stevens & Young, LLP 41

42 Impairment of Collateral The surety is discharged to the extent of the impaired collateral. Stradley Ronon Stevens & Young, LLP 42

43 Notice of Termination (a/k/a Notice to Cure) Stradley Ronon Stevens & Young, LLP 43

44 Common Cure Provision Contractor s services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. Stradley Ronon Stevens & Young, LLP 44

45 Common Bond Notice Provision AIA 312 Requirements: owner must notify both contractor and surety that it is considering declaring a contractor default. attempt to arrange a conference with contractor and surety within 15 days of notice in step 1. wait 20 days after step 1. declare a contractor default and formally terminate contractor s right to complete the contract. owner has agreed to pay contract balance. Stradley Ronon Stevens & Young, LLP 45

46 Improper Notice Failure to follow notice and cure provisions of the bond and/or the underlying construction contract potentially voids the bond coverage. Stradley Ronon Stevens & Young, LLP 46

47 Cardinal Changes Stradley Ronon Stevens & Young, LLP 47

48 Cardinal Changes A cardinal change without the consent of the surety may discharge the bond Stradley Ronon Stevens & Young, LLP 48

49 Statute of Limitations Stradley Ronon Stevens & Young, LLP 49

50 Statute of Limitations Often shorter than the general breach of contract period. Can usually be modified by agreement Usually tolled by the discovery rule in the case of latent defects. Stradley Ronon Stevens & Young, LLP 50

51 Standing Typically only the obligee has a claim under the performance bond. Stradley Ronon Stevens & Young, LLP 51

52 Surety s Remedies Collateral Funds Subrogation Common Law Indemnity Contractual Indemnity Right to Settle Claims of Principal and Against Principal Stradley Ronon Stevens & Young, LLP 52

53 Suretyship v. Insurance Stradley Ronon Stevens & Young, LLP 53

54 Suretyship v. Insurance Insurance is a bilateral contract between an insurer and an insured by which the insurer agrees to assume a certain risk and pay the insured a sum of money upon the occurrence of the specified loss. Stradley Ronon Stevens & Young, LLP 54

55 Suretyship v. Insurance Insurance is a bilateral contract between an insurer and an insured by which the insurer agrees to assume a certain risk and pay the insured a sum of money upon the occurrence of the specified loss. Suretyship, on the other hand, is a tripartite relationship between an obligee, a principal and a surety, whereby the surety agrees to answer for the default of the principal. Stradley Ronon Stevens & Young, LLP 55

56 Insurance It s a risk-based relationship. Stradley Ronon Stevens & Young, LLP 56

57 Surety It s a credit-based relationship Stradley Ronon Stevens & Young, LLP 57

58 What Triggers Coverage? Stradley Ronon Stevens & Young, LLP 58

59 Insurance Triggered by Loss Stradley Ronon Stevens & Young, LLP 59

60 Performance Bond Triggered by Default Stradley Ronon Stevens & Young, LLP 60

61 Suretyship v. Insurance The nature of suretyship presupposes that the surety will sustain no loss. If there is a claim on its bond, the surety has a common law right (and usually a contractual right) to be indemnified for its loss by its principal. Hence, suretyship is a credit accommodation. Stradley Ronon Stevens & Young, LLP 61

62 Suretyship v. Insurance The nature of suretyship presupposes that the surety will sustain no loss. If there is a claim on its bond, the surety has a common law right (and usually a contractual right) to be indemnified for its loss by its principal. Hence, suretyship is a credit accommodation. By contrast, an insurer has no such right. An insurer expressly assumes the risk of losses, and an insured has no obligation to indemnify its insurer for losses paid out under a policy of insurance. Stradley Ronon Stevens & Young, LLP 62

63 Insurance Premiums Insurance Premiums Are Calculated to Create a Pool of Reserves to Cover Expected Losses of Numerous Insureds. Stradley Ronon Stevens & Young, LLP 63

64 Bond Premiums Unlike an insurer, a surety does not agree to bear and assume the risks of its principal. Stradley Ronon Stevens & Young, LLP 64

65 Bond Premiums Unlike an insurer, a surety does not agree to bear and assume the risks of its principal. It does not underwrite its principal based on an actuarial determination of the risk of loss from an unknown or contingent occurrence. Stradley Ronon Stevens & Young, LLP 65

66 Bond Premiums Unlike an insurer, a surety does not agree to bear and assume the risks of its principal. It does not underwrite its principal based on an actuarial determination of the risk of loss from an unknown or contingent occurrence. Instead, a surety issues bonds after consideration of the principal s past performance, the principal s ability to perform the bonded obligation, and the financial integrity and ability of the principal and the indemnitors to indemnify and hold harmless the surety against any potential losses. Stradley Ronon Stevens & Young, LLP 66

67 Bond Premiums Unlike an insurer, a surety does not agree to bear and assume the risks of its principal. It does not underwrite its principal based on an actuarial determination of the risk of loss from an unknown or contingent occurrence. Instead, a surety issues bonds after consideration of the principal s past performance, the principal s ability to perform the bonded obligation, and the financial integrity and ability of the principal and the indemnitors to indemnify and hold harmless the surety against any potential losses. Because suretyship is primarily a credit accommodation and is not insurance, bond premiums are usually regarded as extremely low. Stradley Ronon Stevens & Young, LLP 67

68 QUESTIONS? Patrick Kingsley, Esquire Stradley Ronon Stevens & Young, LLP 2600 One Commerce Square Philadelphia, PA (215) Stradley Ronon Stevens & Young, LLP 68

69 BODILY INJURY AND ANTI-INDEMNITY LAWS Strafford Publications, Inc. Presented by: Marc A. Sanchez, Frantz Ward LLP SEPTEMBER 21, 2016

70 THIRD-PARTY OVER ACTION SUBCONTRACTOR S EMPLOYEE STEP 1 Injury and Workers Compensation Payment Subcontractor s Injured Employee BWC$ Subcontractor 70

71 THIRD-PARTY OVER ACTION SUBCONTRACTOR S EMPLOYEE STEP 2 Lawsuit by Injured Worker OWNER SUBCONTRACTOR S INJURED EMPLOYEE Negligence CONTRACTOR SUBCONTRACTOR 71

72 THIRD-PARTY OVER ACTION SUBCONTRACTOR S EMPLOYEE STEP 3 Owner and Contractor Tender Claims Downstream OWNER SUBCONTRACTOR S INJURED EMPLOYEE CONTRACTOR Contractual Indemnity Contractual Indemnity SUBCONTRACTOR 72

73 THIRD-PARTY OVER ACTION SUBCONTRACTOR S EMPLOYEE STEP 4 Owner and Contractor Tender Claims to CGL Carriers OWNER A.I. OWNER S CGL SUBCONTRACTOR S INJURED EMPLOYEE CONTRACTOR A.I. CONTRACTOR S CGL SUBCONTRACTOR SUBCONTRACTOR S CGL 73

74 THIRD-PARTY OVER ACTION SUBCONTRACTOR S EMPLOYEE STEP 5 Workers Compensation Subrogation OWNER A.I. OWNER S CGL WORKER S COMPENSATION SUBROGATION CONTRACTOR A.I. CONTRACTOR S CGL A.I. SUBCONTRACTOR SUBCONTRACTOR S CGL 74

75 CONTRACTUAL INDEMNITY Indemnity 1. A duty to make good any loss, damage, or liability incurred by another 2. The right of any injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty Also called Hold Harmless Used in conjunction with additional insured provisions Belt and Suspenders 75

76 TYPES OF INDEMNITY Broad form Sub responsible for own negligence and negligence of general contractor, too. Barred in Ohio. Transfer all risk regardless of fault, including sole negligence. Intermediate Sub responsible for all, unless solely caused by general contractor. Can be barred in Ohio. Transfer all risk of loss, except if sole negligence. Limited Sub responsible only for its own negligence. Lower tier only obligated to reimburse upper tier for its share of fault. 76

77 ADDITIONAL INSURED PROVISIONS To fund or reinforce contractual indemnity obligation To prohibit subrogation by the named insured s insurer against the additional insured for the additional insured s own fault or negligence To directly pay defense costs of the additional insured To reduce impact on the loss history for the additional insured 77

78 ADDITIONAL INSURED PROVISIONS ISO forms evolved over time Broadest CG Newest Covers additional insured to extent permitted by law (scope). Coverage no more than that which lowertier contractually required to provide (limits). Ongoing operations only. Caused in whole or in part by the named insured. CG for products-completed operations hazard 78

79 ANTI-INDEMNITY STATUTES AND ADDITIONAL INSURED COVERAGE 45 states have anti-indemnity statutes that limit or prohibit enforcing indemnity agreements in the construction setting States where the statute prohibits AI coverage: AZ (public works), CO, GA, KS, MT, NE, NM, OK, and TX States where the statute may prohibit coverage: OR and OH The rest apply only to contractual indemnity 79

80 INSURANCE VS. INDEMNITY Contractual indemnification anti-indemnity statutes Strict construction. Unequal bargaining power. Subcontractor s inability to bear unlimited risk. Additional insured Direct rights under the policy. Possible coverage for sole negligence. No anti-indemnity statute (most states) and no strict construction. 80

81 CONTACT Marc A. Sanchez (216) Location: 200 Public Square, Suite 3000 Cleveland, OH

82 An Example Patrick Kingsley, Esquire Stradley Ronon Stevens & Young, LLP 2600 One Commerce Square Philadelphia, PA

83 Roof Example Roofer is hired to install a new roof on a building The roofer installs the roof poorly, and the roof leaks This causes problems Stradley Ronon Stevens & Young, LLP 83

84 The Coverage Which is implicated: the insurance policy or the bond? Stradley Ronon Stevens & Young, LLP 84

85 Roof Problems The wooden rafters get soggy and must be replaced Water leaks inside the house damaging clothing and furniture Water damages the walls, newly constructed as part of the project Shingles fall from the roof, injuring a passer-by Stradley Ronon Stevens & Young, LLP 85

86 Does it matter is the roofer is working for the owner or is a subcontractor to the GC? Stradley Ronon Stevens & Young, LLP 86

87 Questions? Patrick Kingsley, Esquire Stradley Ronon Stevens & Young, LLP 2600 One Commerce Square Philadelphia, PA (215) Stradley Ronon Stevens & Young, LLP 87

88 BEST PRACTICES IN RISK MANAGEMENT Strafford Publications, Inc. Presented by: Marc A. Sanchez, Frantz Ward LLP SEPTEMBER 21, 2016

89 RISK ANALYSIS Identifying risk Assessing risk Avoiding the risk Transferring the risk Mitigating the risk 89

90 OWNER PERSPECTIVE Project delays Contractor insolvency Financing Differing site conditions Defective design and/or construction Environmental and regulatory concerns 90

91 CONTRACTOR PERSPECTIVE Non-payment for disputed extra work Delays or changed work Jobsite injuries Subcontractor claims for delays or extra work Subcontractor insolvency Subcontractor s failure to timely and properly perform its work 91

92 SUBCONTRACTOR PERSPECTIVE Subcontractor or lower-tier: Nonpayment Uncompensated changes Project impacts outside of their control 92

93 ASSESSING AND AVOIDING RISK Analyze probability and possible impact Upfront spending on professionals Project delivery methods cost/benefit Due diligence on contracting partners Walk away Change contracting partner Change ownership structure 93

94 TRANSFERRING THE RISK Typically through contract language and insurance Contract provisions for change orders, contract time, indemnity, and dispute resolution What insurance is cost-effective Builder s risk, CGL, additional insured protection, contractor s perspective, bonding, or subguard 94

95 PERFORMANCE BONDS VS. SDI 95

96 MITIGATING THE RISK Ownership entity Project delivery system Insurance and bonding program Contracts Project management Project safety 96

97 UNAVOIDABLE RISK Tenant bankruptcies Uninsurable losses Frivolous lawsuits Simply cannot be transferred or avoided 97

98 CONTACT Marc A. Sanchez (216) Location: 200 Public Square, Suite 3000 Cleveland, OH