C/C/C and You Just What DOES Property Damage Liability Cover (or Not)?

Transcription

1 C/C/C and You Just What DOES Property Damage Liability Cover (or Not)?

2 C/C/C and you... just what DOES property damage liability cover or not Irene Morrill, CPCU, CIC, ARM, CRM, CRIS, LIA, CPIW VP Technical Affairs, MAIA This program is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. With special thanks to the Insurance Services Office, Inc. for advance information, continued support, and permission to use their forms and information. 1

3 So you ve sold a policy that provide bodily injury and property damage. There shouldn t be TOO much of an issue with what constitutes covered BI But what constitutes covered PD now THAT is a horse of a different color 2

4 CGL BAP ISO HO 3

5 CGL Physical injury to tangible property including loss of use Loss of use of tangible property without damage TO the tangible property Electronic data is NOT tangible property 4

6 BAP Damage to And/or loss of use of tangible property ISO HO Physical injury to (damage) and/or loss of use of tangible property 5

7 The MAP does not define property damage 2008 MAP But the insuring agreement discusses: Damage to autos or property of others And Sales tax and loss of use of damaged property 6

8 2016 MAP The MAP does not define property damage But the insuring agreement discusses: Damage to autos or property of others And Sales tax and loss of use of damaged property 7

9 The definitions are NOT the problem Then what is. That nasty concept called exclusion 8

10 CGL- 2004/2007/2013 exclusion Quite a lengthy exclusion what does it say? 9

11 CGL exclusion There is no PD to owned property no kidding There is no PD to real property rented or occupied by you. So what if your client is a tenant would that be a problem? 10

12 CGL exclusion nly get fire legal coverage to long term rental 11

13 CGL exclusion At a lower limit of insurance then GL per occurrence limit 12

14 CGL exclusion The only way to help a client who damages the premises it rents is by CP Legal Liability Coverage form or If insured under the BOP by adding the BP Broadened Coverage for Damage to Premises Rented to You 13

15 CGL exclusion If employee smoking cigarette causes fire then CGL or BOP liability would respond for lower limit (usually start at $100,000) 14

16 CGL exclusion If employee leaves window open and rain damages hardwood floors and walls no coverage under CGL or unendorsed BOP 15

17 CGL exclusion Property loaned to insured or in c/c/c of insured is NOT covered. Consider contractors borrowing mobile equipment 16

18 CGL exclusion Property loaned to insured or in c/c/c of insured is NOT covered. Insured who repairs or cleans or otherwise has other people s personal property in 17 its care

19 CGL exclusion These clients need inland marine coverage For damage to property of others or company specific endorsement to CGL or BOP 18

20 CGL exclusion Carpenter hired to remodel doorway and damage it during process 19

21 CGL exclusion Painter hired to buy and paint room rust and paints it red. 20

22 CGL exclusions - more If what your client built or repaired damaged itself or damage arose out of what was done after work was complete too bad 21

23 CGL questions from an insured After explaining the liability coverage to your client the contractor he asks What would happen if I built a deck for someone and it collapses 3 weeks after I finished it. It collapses during a big party that the client Is having and people are injured as well as damage to the house and, of course, the deck. 22

24 CGL questions The good news CGL or BOP CGL language: BI and PD to others is covered if insured is legally obligated And NO exclusions 23

25 CGL questions Injury to people when deck collapsed is covered as there are no exclusions Damage to the house is covered as job was done house not being occupied by insured Definition of property damage would apply 24

26 CGL questions The damage to the deck will NOT be covered per the following exclusion (and definition): Creation of deck was work performed by you 25

27 CGL questions Your client then questions What if he damages the house to which he is attaching the deck while he is actually building the deck? Will his CGL pay for that damage? 26

28 CGL questions The house belonging to someone else WAS damaged during the operations but. PD exclusion J(5) will be a problem The part of the house that was having the deck attached to it was damaged exclusion for particular part of REAL property where you are performing your 27 operations will apply.

29 CGL questions He then asks What if he is remodeling a kitchen and while bringing the necessary lumber for the kitchen renovations from his pickup truck up through the front door and through the living room. he gouges the client s living room walls. He must bring the materials in this way to get to the kitchen. Will the damage to the living room walls be covered under his CGL? 28

30 CGL questions Actually no Damage done while unloading his truck by hand is excluded under the GL coverage The following is language from the ISO CGL but the ISO BOP has the same language 29

31 CGL questions Both the BOP and the GL have the following definitions: Your client has a F-250 pickup which is definitely registered and definitely an auto 30

32 Unloading by hand or hand truck (dolly) is considered BAP unloading by a non-attached mechanical device such as forklift or crane is considered CGL 31

33 Since he was unloading by hand the CGL considers this an excluded unloading situation of an excluded vehicle Coverage must be found 32

34 BAP questions GOOD NEWS if he has a BAP His BAP liability coverage states: That it covers BI/PD to others when an insured is legally liable But..it also has exclusions: 33

35 BAP questions The BAP restriction for loading/unloading fits the CGL/BOP liability like a glove 34

36 BAP questions The BAP provides coverage for BI/PD arising out of the materials and supplies the second they are being loaded if loaded by hand, dolly or device attached to the truck 35

37 BAP questions The BAP excludes unloading by a mechanical device that is NOT attached to the truck. Since he unloaded by hand the BAP will respond to the claim. 36

38 MAP questions What if he has a MAP class 30 instead of a BAP will MAP respond? MAP has no definition of: property damage loading/unloading 37

39 MAP questions Good news there is no exclusion and certainly the insured IS legally responsible! 2008 MAP 2016 MAP 38

40 MAP questions Don t listen to the it s not an auto claim or too far from the truck 39

41 MAP questions MA common law The complete operations rule looks at the TOTALITY of the action from beginning to end or when are you done. In Busch & Company of Massachusetts, Inc v. Liberty Mutual 339 Mass 239 and F.W. Woolworth Company & Others) v. Lumbermens Mutual 355 Mass 211 (1969) the court invoked the complete operation rule 40

42 MAP/BAP questions Your insured has another question What if the materials and supplies he bought for the job fall out of the back of the truck and are damaged will the MAP or BAP pay for damage to the materials and supplies? Would it make a difference if the client had purchased them and the 41

43 MAP/BAP questions BAP Excludes damage to property Owned OR transported by insured. Or otherwise in the insured s C/C/C 42

44 MAP/BAP questions MAP Excludes damage to property Owned by insured. Or rented to Or in care of an insured 43

45 MAP Father driving son s vehicle pulling son s trailer with son s lawnmower in the trailer. Father loses control and trailer is damaged and causes as well damage to son s vehicle. Lawnmower falls out of trailer damaging the son s lawnmower. 44

46 MAP Any coverage for the lawnmower (value $1500) under son s policy? Assume son s vehicle policy will take care of damage to his vehicle? Would his deductible apply? Whereas, Father is responsible for damage to son s car, trailer, and lawnmower, would the Father s auto and/or homeowners policy respond? 45

47 MAP/BAP questions How do you cover this exposure??? One needs inland marine coverage Or if it is a PERSONAL issue not business the HO policy could respond under Coverage C Personal property 46

48 MAP question The MAP does not cover damage to property in the insured s care per part 4 exclusion 6 it also doesn t pay for damage to owned property per Part 4 exclusion 6: 47

49 MAP question Must go back to HO policy Son s car pays Part 7 for damage done by trailer/lawnmower while transporting collision deductible applies. 48

50 MAP question Father s policy will NOT pay for damage he did to son s car if son has Part 7 for other than difference in deductible because Collision states: If an auto covered under this Part is not owned by you at the time of the accident, the owner s auto insurance must pay its limit before we pay. Then, we will pay, up to the limit shown on your Coverage Selections Page, for any damage not covered by that insurance less the deductible amount you selected. 49

51 Property damage and the CGL or not A contractor was hired to power wash a house. In doing so, the exterior of the house was damaged. The commercial general liability carrier denied coverage because of the "your work" exclusions. 50

52 Property damage and the CGL or not I don t agree. I believe that the resulting damage to the house should be covered and only the cost of re-doing the power wash should be excluded. Can you clarify this for me? 51

53 There is no coverage under the ISO CGL policy for damage to the building that was caused by the power washing. Exclusions j.(5) and j.(6) apply to the loss. 52

54 Exclusion j.(5) voids coverage for property damage to particular parts of real property on which work is being done if the damage arises out of those operations. 53

55 Exclusion j.(6) excludes coverage for the particular part of any property that must be restored, repaired, or replaced because "your work" was incorrectly performed on it. 54

56 The work (power washing) being performed damaged the building. There is no separation between the damage and the power washing. 55

57 This appears to be a classic case of faulty workmanship, which the CGL is not designed to cover. exclusions j.(5) and (6) would not apply 56 as they are OPERATIONS exclusions. However, if the building were to collapse after the work had been completed and turned over to the owner,

58 HO and c/c/c Jack Sprat just signed a 12-month lease for a Back Bay apartment. After the year is up he will be on assignment in Saudi Arabia for 2 years. He has decided to lease apartment furniture for the next 12 months also. The landlord had him sign a lease that holds the landlord harmless for all damages to the rented apartment 57

59 HO and c/c/c The lease he signed for the furniture leasing company requires that he return the furniture at the end of the lease in similar condition allowing only for minor wear and tear. The furniture leasing company requires Jack to purchase insurance protecting the furniture 58

60 HO and c/c/c Can Jack insure leased contents? Yes Coverage C applies to 59

61 HO and c/c/c Owned and/or used property is covered Leased property is property that you are using Jack must be aware of Coverage C 60

62 HO and c/c/c We should recommend that he purchase the HO Replacement cost endorsement (whether you sell the HO-91 or HO-2000/HO contents is adjusted on an ACV basis) Replacement cost will be paid for losses to covered property 61

63 HO and c/c/c Jack should read his lease to verify that replacement cost is acceptable a lease agreement might also have administration fees if property is damaged and similar property can not be produced 62

64 HO and c/c/c The HO-4 is a NAMED peril policy with only 16 perils. Jack is probably responsible for ALL loss to leased property. HO-91 policy 1) Open peril special form tenants coverage is NOT available (at least according to ISO company can file anything it wants) 63

65 HO and c/c/c The HO-4 is a NAMED peril policy with only 16 perils. Jack is probably responsible for ALL loss to leased property. HO-91 policy 2)Warn Jack of the peril limitations in his policy 3) make sure he is aware that he might be responsible for ALL damage to the leased property and only certain types of damage can be insured 64

66 HO and c/c/c ISO HO-2000/HO-2011 program has a Special Form Endorsement for the HO-4 1) HO Special Personal Property Coverage Endorsement 2) Open peril coverage certain to exclusions as found in the HO-5 Comprehensive Form or HO Special Personal Property Coverage Endorsement used with the HO-6 3) Optional endorsement subject to carrier underwriting 65

67 HO and c/c/c Jack is running the water in his bathtub for a nice long warm bath. The phone rings. His girlfriend s car broke down on the highway and she needs him to come IMMEDIATELY. He grabs his car keys and dashes out the door. Four hours later he returns 66 home.

68 HO and c/c/c When he opens the door to his apartment he sees a layer of water all over the dining room hardwood floor and the living room rug. He runs into the bathroom to shut off the bathtub water. It seems the face cloth he always leaves over the bath tub faucet acted like a stopper to the overflow outlet located right below the faucet. 67

69 HO and c/c/c Water had been running for FOUR hours. Shortly after entering his apartment the phone rang. It was the tenant below him screaming about water pouring through the ceiling. He had been using buckets to catch the water. 68

70 HO and c/c/c The landlord was informed and he reported to his insurance company. The insurance company paid the claim and then sent a letter of subrogation to Jack. (Can the landlord s insurance company require that Jack pay for the water damage?) 69

71 HO and c/c/c The damage to Jack s apartment alone was $5,000. The damage to the apartment below was another $3,000. What will Jack s insurance carrier do? 70

72 HO and c/c/c The lease that Jack signed did NOT have a waiver of subrogation clause. Therefore, any damage caused by Jack s negligence will ultimately be his responsibility The Landlord s insurance carrier has every right to go after the negligent party 71

73 HO and c/c/c What Will Jack s HO-4 do? 72

74 HO and c/c/c The HO policy PD liability coverage has exclusion for PD to property in your care, rented or used by you unless damaged by fire, smoke or explosion 73

75 HO and c/c/c The policy liability limit of $100,000 will NOT respond to the $5,000 of damage done to Jack s apartment as that portion of the building was rented to him The homeowners liability will cover the $3,000 of damage to the apartment BELOW Jack as that portion of the building is NOT in his care, not used by him and 74 not rented to him

76 HO and c/c/c The HO policy provides some Section II Additional Coverages for PD in insured s care HO

77 HO and c/c/c Jack s HO policy will pay $3000 to apartment below Jack (HO-91, HO-2000, or HO-2011) $500 to damage in Jack s apartment (HO-91) $1000 to damage to Jack s apartment (HO-2000/HO-2011) 76

78 HO and c/c/c Jack will pay the remaining $4500 or $4,000 of damage to the apartment he rents depending on whether he has the HO-91 or the HO-2000/HO

79 HO and c/c/c I have a potential customer who is looking for a renters policy. She has a 75 gallon fish tank and needs liability coverage for in the event that the tank leaks and damages the floor in her unit. 78

80 HO and c/c/c Would the HO 04 10/00 form cover this liability loss? I do not have a copy of the 10/2000 form. But reading the 1991 HO 04 form I understand that liability coverage does not apply to property damage to property rented to insured or in their care or custody. Does that apply to the unit? 79

81 HO and c/c/c Whether HO-91/2000/2011 Coverage E property damage will NOT respond: Under Section II personal liability exclusion one sees: Coverage E does not apply to: 3. "Property damage" to property rented to, occupied or used by or in the care of an "insured". This exclusion does not apply to "property damage" caused by fire, smoke or explosion; So, water damage done by fish tank to rented apartment is not covered under Section II liability limit. 80

82 HO and c/c/c Under the ISO HO-2000/2011 There is an additional coverage of $1,000 but that is it: C. Damage To Property Of Others 1. We will pay, at replacement cost, up to $1,000 per "occurrence" for "property damage" to property of others caused by an "insured". 81

83 HO and c/c/c How to cover? Legal Liability Coverage Form CP This coverage form will allow Jack to buy coverage for damage to the apartment he rents 82

84 HO and c/c/c Legal Liability Coverage Form CP He can buy special form coverage for damage to the apartment due to Jack s negligence. age Any special form peril type of that Jack was negligent in causing to the rented apartment will be covered The policy will ONLY respond when Jack is negligent 83

85 HO and c/c/c Reviewing leases and contracts 1. Would you sell a HO-6 to someone without reviewing the BYLAWS? 2. Selling insurance to our clients who sign leases and contracts WITHOUT reviewing these leases and contracts to identify the potential exposures is dangerous 84

86 Thank you for attending CCC And you