Mitigating some of the risks associated with construction, ownership & leasing of property In House Counsel Conference

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1 IN-HOUSE COUNSEL'S ROLE IN MANAGING ENTERPRISE RISK Mitigating some of the risks associated with construction, ownership & leasing of property In House Counsel Conference

2 Disclaimer The views expressed by the participants in this program are not those of the participants employers, their clients, or any other organization. The opinions expressed do not constitute legal advice, or risk management advice. The views discussed are for educational purposes only, and provided only for use during this session.

3 Presenters Pamela D. Hans, Esq. Anderson Kill P.C. (267) A. Peter Prinsen, Esq. The Graham Company (215)

4 4 Introduction of Topic Identifying the risks Type of property Use Relationship to property >> How do you manage risk? <<

5 Key Contract Provisions Relating to Risk Transfer Indemnity Agreements 5 Insurance Requirement Risk Transfer Limitation of Liability Waiver of Subrogation

6 6 Additional Insured (AI) Status What is it? Why would you want to be an additional insured? What kind of additional insured are there? Sometimes you re the hammer and sometimes you re the nail. Giving someone additional insured status on your insurance. Asking someone to name you as an additional insured.

7 7 Additional Insured Status Same rights to defense as named insured Protection from liability arising out of/caused by operations performed by named insured on behalf of additional insured ( AI ) Direct access to insurance policy Potentially broader protection than indemnity agreement Belt and suspenders? Several pitfalls for the unwary

8 Additional Insured Status Additional insured coverage is limited by the terms of the specific Additional Insured endorsement: i. Who is getting the coverage? ii. What is the extent of the coverage? 25 years ago, there were only a handful of additional insured endorsements: i. The Gold Standard = ISO CG Today, there are over 50 different ISO endorsements which each accomplish something different

9 Additional Insured Status Common problems with additional insured endorsements: i. Additional insured s own negligence a/k/a sole negligence ii. iii. iv. Direct contract requirement for additional insured Ongoing vs. completed operations Primary / non-contributory basis v. Limited scope of additional insured coverage

10 10 How Is Insurance Integrated into Construction Contracts? Insurance Specifications i. Types Required CGL Builder's Risk Auto Professional Liability Excess ii. iv. Limits of Liability Additional Insureds primary and noncontributory different endorsement forms limits available to additional insured Ongoing vs. Completed Operations v. Waiver of subrogation

11 Indemnification/Hold Harmless Provisions 3 types of Indemnification Agreements: i. Broad Form = indemnifies a party for even that party s sole negligence ii. iii. Intermediate Form = indemnifies a party for its own negligence except if that party is solely negligent Limited Form = does not indemnify a party for its own negligence Insurance coverage for Indemnity Agreements is usually found in a Commercial General Liability insurance policy. Like additional insured coverage, there are several pitfalls for the unwary.

12 Indemnification/Hold Harmless Provisions Common Problems with insurance coverage for Indemnification Agreements: i. Amendment of the standard Insured Contract definition, i.e., redefinition or elimination of sub-part (f) ii. iii. iv. Limitations imposed by the standard Insured Contract definition, i.e., operations on or within 50 feet of a railroad; indemnification of architect, engineer or surveyor; etc. Amendment of the standard Employer s Liability exclusion Contractual liability exclusion for Personal Injury claims

13 Being Ready for Common Construction Insurance Coverage Litigation Issues Additional insured disputes Calculating delay damages Priority of coverage Other insurance clauses Implications of wrap-up coverage (CCIPs and OCIPs) Subrogation 13

14 Common Construction Insurance Coverage Litigation Issues Insurance Coverage for Project Delays a. 1st party losses delay in opening coverage under builder s risk b. 3rd party losses (liquidated delay damages) CGL coverage for damages because of BI or PD 14

15 The Rise of Owner/Contractor Controlled Insurance Programs Litigation exposures Changing insurance market Direct and indirect costs 15

16 16 Types of Controlled Insurance Programs OCIPs CCIPs Project Specific Rolling Wraps

17 17 OCIP vs. CCIP OCIP v. CCIP Comparisons The Metrics OCIPs Pros and Cons CCIPs Pros and Cons

18 18 Negotiating the CIP Goals May Vary by Type of Project New Construction v. Rehab/Conversion For-Sale v. Other (e.g., Apartments) Interplay With Other Coverage Types Interplay With Other CGL Policies

19 Integration of the CIP into Project Documents Statutes Requiring Disclosures to Wrap-Up Participants Anti-Indemnification Statutes Effect of CIP on Scope of Indemnity 19

An Important Site-Specific Consideration: Specialized

both anticipated and unanticipated against the

20 An Important Site-Specific Consideration: Specialized Environmental Insurance Tailoring various coverages to avoid gaps. Companies must tailor coverage to meet these risks both anticipated and unanticipated against the backdrop of an array of authorities Voluntary clean-up Contractual obligations, bonding requirements 20

21 An Important Site-Specific Consideration: Specialized Environmental Insurance Traditional lines of insurance still cover some environmental claims.

21 21 An Important Site-Specific Consideration: Specialized Environmental Insurance Traditional lines of insurance still cover some environmental claims. D&O and E&O often cover securities fraud claims originating in environmental damage. First-party property policies generally cover environmental damage triggered by fire or storm. Coverage for government-mandated cleanup often hinges on whether settlements under NRD, RCRA or CERCLA meet the definition of an environmental claim. Emerging trends in EIL and PLL underwriting.

22 22 What to Do If You Receive a Claim 1. Notice 2. Investigation Determine the scope of the loss Do not cede claim investigation responsibility to the insurance company

23 23 What to Do If You Receive a Claim 3. Identify potentially applicable insurance policies Property policies Commercial general liability Environmental policies OCIP/CCIP policies Builder s risk policies

respond to information requests Never say no

24 24 What to Do If You Receive a Claim 4. Promptly submit a Proof of Loss (in first party context) 5. Cooperate with your insurance company Promptly respond to information requests Never say no Insist on attendance at all employee and third-party interviews 6. Stay on the offensive

25 Call Us Pamela D. Hans, Esq. Anderson Kill P.C. (267) A. Peter Prinsen, Esquire The Graham Company (215) Thank You

Construction OCIP/CCIP Insurance Programs: Potential Coverage Gaps and Other Coverage Pitfalls

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