Miscellaneous Commercial Policies

Transcription

1 12 Miscellaneous Commercial Policies OVERVIEW This chapter will review a wide range of miscellaneous commercial policies. It will describe Special or Professional Liability Insurance that is available for businesses or professionals that have a higher than average exposure for being legally liable for damages other than bodily injury or property damage. Additional miscellaneous coverages reviewed in this chapter include Equipment Breakdown Coverage, Farm Property and Liability Coverages, Aviation Insurance, and Crop, Hail, and Windstorm Insurance. Upon the completion of this chapter, you will be able to: Recognize the Commercial Inland Marine Coverage Forms and Floaters Identify the Transportation Coverages Define Professional Liability Insurance Identify the key components of Equipment Breakdown Protection Coverage Form Recognize the Selected Endorsements List the Farm Property Coverages List the Farm Liability Coverages 12.1 Inland Marine Policies Generally, the property insured under commercial inland marine policies is covered only while on land. The coverage is designed to protect against losses to property that is mobile in nature, while the property is away from the owner s premises. Filed and Non-Filed Forms Filed or Standardized Forms (F) are those that are created by an advisory organization (such as the Insurance Services Office) and filed with the Department of Insurance and approved for use by the Insurance Commissioner Non-Filed or Non-Standardized Forms are not filed with or through any advisory organization. They are developed by individual insurers, and consequently the forms generally differ from insurer to insurer. 147

2 CHAPTER TWELVE Covered Perils and Exclusions Inland marine policies are frequently written on an open perils basis, covering all risks other than those which are specifically excluded. Exclusions in non-filed forms are often tailored to risks considered catastrophic by the insurer or are of such a frequency that the volume of claims would not provide the insurer with a reasonable profit. Filed coverage forms generally exclude coverage for losses due to a limited number of circumstances: Governmental action Nuclear hazard War and Military Action (including terrorist acts) Improper packing or stowage Delay, loss of use or market, or indirect loss Breakdown of refrigeration equipment (unless caused by standard named perils) Dishonest acts of the insured or employees, officers, directors, trustees, and other authorized representatives Voluntary parting with property induced by fraud, trick, or false pretense Unauthorized transfer of property Neglect to save or preserve property from further damage at or after the time of loss Liability for loss or damage due to property that destroys itself, gradual deterioration (such as corrosion or rust), dampness or temperature extremes, insects, rodents, or vermin, unless otherwise the result of a Covered Cause of Loss. Commercial Inland Marine Coverage Forms and Floaters Accounts Receivable Coverage Form This form covers amounts due the insured, which are uncollectible from customers, because of the direct physical loss or destruction of records of accounts receivable from a covered cause of loss, such as collapse of a building damaged by fire. Commercial Articles Coverage Form This form covers cameras, projection machines, films and related equipment and accessories, musical instruments, and similar property of others that is in the insured s care, custody, or control. Contractor s Equipment Floater This form covers mobile equipment (other than autos and trucks which may be insured under a commercial auto policy), tools, and construction machinery owned by contractors, such as steamrollers, tractors and backhoes, etc. Coverage is typically written on an open peril basis, subject to specified exclusions. The method of valuation is actual cash value unless replacement cost is indicated on the schedule of coverage. Newly acquired equipment must be reported by the insured to the insurer within 60 days. The territorial limits of the policy are the United States and its territories and possessions (including Puerto Rico) and Canada. 148

3 Electronic Data Processing Floater MISCELLANEOUS COMMERCIAL POLICIES This form is used to insure computers and other electronic data processing equipment and media, including hardware, software, extra expense, and business interruption. Coverage is written to cover external risks of direct physical loss unless the loss is caused by a peril that is excluded. Hardware and software must be described in the Declarations. The value of covered property is based on actual cash value unless replacement cost is indicated in the Declarations. Retention Question 1 A school wishing to insure the musical instruments and photographic equipment used in its classroom would use a/an: a. Accounts Receivable Coverage Form b. Commercial Articles Coverage Form c. Contractor s Equipment Floater d. Electronic Data Processing Floater 12.2 Common Carrier Cargo Liability Legal Liability A common carrier s liability is almost absolute for loss or damage to property in its custody from any cause, regardless of negligence or lack of negligence, except from: Acts of God Acts of a public enemy Exercise of a public authority Fault or neglect of a shipper Inherent vice Bill of Lading Common carriers are required to issue a uniform bill of lading to the shipper of the goods being transported. The bill of lading is a receipt for the goods, and sets forth the agreement between the carrier and the shipper. The two types of bill of lading are: Straight (Regular) Used when payment has been made to the carrier in advance of shipment and requires the carrier to deliver the merchandise to the appropriate party. Release An alternative to a Straight Bill of Lading which is used in cases where the shipper has decided in advance to release their hold on the cargo immediately, whether payment has been made to the shipper or not. 149

4 CHAPTER TWELVE Motor Truck Cargo Forms Trucker s Form This form insures public truckers for legal liability arising out of loss or damage to cargo belonging to others in their possession. Coverage applies only if the carrier is legally liable for the loss and the loss was caused by an insured peril. Shipper s Form This form uses the same basic policy as the Trucker s Form; however, the coverage is fundamentally different because it covers the shipper s own goods. The form provides property coverage, protecting the owner of goods that have been shipped by a trucker operating as a common or contract carrier for loss of those goods. Owner s Form This form is designed to provide transportation coverage for a business firm that owns trucks with which it transports its own goods. Owned trucks are scheduled on the form, as is a limit for each truck. The form excludes losses arising out of dishonesty of the insured s employees. Transit Coverage Forms Annual Transit This form is designed for business firms that want to protect all kinds of property that is either being shipped to others, or being received from other shippers, during the year via any common carrier. Trip Transit This form is used by those who do not make regular shipments, but wish to insure a single shipment. Retention Question 2 Which form excludes losses arising out of dishonesty of the insured s employees? a. Trucker s Form b. Driver s Form c. Shipper s Form d. Owner s Form 12.3 Commercial Ocean Marine Insurance Ocean Marine Coverage insures the transportation of property (goods and merchandise) by vessels crossing domestic and foreign waters, including inland or aviation transit connected with the shipment. Implied Warranty Ocean Marine policies are written full value and will become void if any of the implied warranties are violated. Legality The goods being shipped must be legal. 150

5 Seaworthiness The ship must be seaworthy and have a competent crew. No Deviation in Voyage MISCELLANEOUS COMMERCIAL POLICIES The ship must sail the course that was filed with the insurer at the time the policy was underwritten. The exceptions to this rule are that the ship may change course to avoid a storm which could damage the ship or the cargo, to save human life, or to obtain medical or surgical relief for persons on board. Retention Question 3 Which of the following is not an implied warranty? a. Seaworthiness b. Fiduciary Responsibility c. Legality d. No Deviation In Voyage Ocean Marine Property Coverages Ocean Marine Insurance provides the following property coverages: Hull Insurance Hull insurance covers physical damage to the ship itself, including fittings and machinery of the vessel. Coverage may be written on an open or named perils basis, and typically is written to cover a particular voyage or for one year. The Collision or Running Down Clause is a provision contained in Hull Insurance that covers collision damage to another vessel. The Inchmaree Clause is an addition to Hull Insurance that covers damage caused by the bursting of boilers, the breaking of propeller shafts, or loss due to faults or errors in navigation by the crew. Cargo Insurance Cargo insurance covers goods being shipped while in transit. Cargo insurance can be written with open or named perils and is provided during the time the insured (either the cargo buyer or seller) has an interest in the property. The period during which the insured has interest in the property may differ depending on how the cargo is shipped. If the cargo is shipped FOB (Free on Board) Point of Departure, the buyer takes interest in the property as soon as the trip begins. If the cargo is shipped FOB Point of Destination, the seller retains interest in the property until after the trip is completed. Coverage may be written to cover a single shipment or on an open cargo basis that automatically protects any shipment as soon as the insured s interest begins. A Warehouse to Warehouse Clause may be attached and the policies are generally written continuous (in force until cancelled). Take Note Hull and Cargo Insurance are typically written on a valued basis. The valuation of the cargo includes the stated value of the invoice, import duties, and freight charges. 151

6 CHAPTER TWELVE Freight Insurance Freight insurance is an indirect loss coverage that protects the shipper, who is required to prepay freight charges and/or import duties, in the event that the voyage is not completed or that the goods have sustained partial damage and the shipper is not able to secure a refund of the duty on the damaged goods. General and Particular Average Losses General Average A partial loss where the loss is apportioned or shared among all who benefited by the sacrifice, such as throwing cargo overboard (jettison of cargo) to save the ship. Particular Average A partial loss that affects a particular interest, and loss is not shared. Retention Question 4 In Ocean Marine insurance, the collision clause is also known as which of the following? a. The Inchmaree clause b. The Running Down clause c. The Warehouse to Warehouse clause d. The Particular Average clause Protection and Indemnity (P&I) In Ocean Marine Insurance, third party liability coverage is called Protection and Indemnity. Protection and Indemnity covers legal liability imposed on the insured for damages arising out of the operation of the insured vessel, such as: Cargo lost or damaged through the insured s negligence Damage to other property, including fixed objects, such as wharves, docks, and other vessels, when not caused by collision Damage to property on board the insured vessel when caused by collision Injuries to seamen resulting from the unseaworthiness of the vessel, and general damages caused by negligence Take Note P&I does not cover work-related injuries which would be covered by The Jones act (covering sea-going crew members) or the The U.S. Longshore and Harbor Workers Compensation Act (covering workers who load, service or repair vessels). This insurance may be attached to a Hull Policy. Retention Question 5 In Ocean Marine insurance, liability coverage is called which of the following? a. Protection and Indemnity b. Cargo insurance c. Freight Insurance d. Hull insurance 152

7 MISCELLANEOUS COMMERCIAL POLICIES 12.4 Specialty or Professional Liability Insurance Professional Liability Fiduciary Liability Officers and directors of nonprofit boards have fiduciary responsibilities. These include the duty of care and loyalty besides money and property. Board members of nonprofit institutions may have special fiduciary duties to advance the charitable goals of the institutions and protect their assets. Allegations of wrongful or tortuous conduct may require officers and directors to defend themselves from such claims, and to face substantial liability exposure. Common Perils/Exposures Professional liability policies insure against a wide range of perils, including: Fraud or breach of contract Conflict of interest Malpractice or neglect Government investigation Errors and omissions Cyber risks, such as: Business-to-Business (B2B) exposures Business-to-Consumer (B2C) exposures Internet Service Providers (ISP), mobile, cellular exposures Internal technology infrastructure exposures Corporate brochure web site exposures Who is an Insured As with commercial general liability policies, the insureds are those named in the declarations and can include: Executive officers and directors Stockholders and trustees Volunteer workers and employees Duty to Defend Whereas a duty to defend is typically a standard feature of commercial general liability policies, it s an evolving issue for professional liability insurance where it s closely tied to duty to indemnify. Most policies do not require insurers to defend, especially for claims arising from an event not directly specified in the policy. Still, the insurers will be required to cover the costs of an insured s defense. In California, recent State Supreme Court cases have fallen on the side of the claimants and required insurers to defend insureds. Shrinking Limits Defense Provision This means the expenditure of defense costs associated with a claim reduces policy limits. This is different from commercial general liability policies, which pay defense costs in addition to policy limits (shrinking limits provisions are also known as defense within limits provisions). Accordingly, limits under professional liability policies must be selected so they adequately cover both projected settlement/indemnity costs and expected defense expenses. 153

8 CHAPTER TWELVE Advancement of Defense Costs Provision This is found in Directors and Officers liability policies and it obligates the insurer to pay defense and indemnity costs as incurred. Such provisions eliminate the need for insured directors and officers or the corporate organization to pay such costs prior to receiving reimbursement from the insurer. Policy Triggers Professional liability policies almost always use Claims Made (CM) or Claims Made and Reported (CMR) forms. Occurrence Forms are rarely used. When an insured repeatedly renews Professional Liability insurance with the same or another insurer (no gaps in coverage), a claims made policy generally treats the policy period as a continuum. The CM form requires the claim first be made during the policy period. The report can be made after the policy period, but it generally must be reported to the insurer in compliance with a standard such as immediately or as soon as practicable after the claim is made. What those standards mean can be a matter of legal or judicial interpretation. The CMR form requires both the claim and the report first be made during the policy period. However, it usually provides a grace period (60 to 90 days) for claims made during the last month or two of coverage. This greatly reduces any ambiguity and lessens the chance of a court case being required for final decision. Both forms can have a prior acts/retroactive date feature and both forms can offer a basic and an optional extended reporting period. Retention Question 6 Professional liability policies typically employ: a. Claims Made (CM) or Claims Made and Reported (CMR) forms b. Claims Made (CM) or Occurrence forms c. Claims Made and Reported (CMR) or Occurrence forms d. Claims Made forms only Directors and Officers Liability (D&O) D&O policies have 3 primary insuring agreements. Each of these coverages has its own retentions, deductibles and coinsurance percentages, and each may have different exclusions than the others. A-Side Coverage Provides direct coverage for directors and officers for claims made against them for wrongful acts committed in their capacity as a director or officer. B-Side Coverage Reimburses the company for the amount it spends indemnifying directors and officers for claims against them. However, this coverage does not apply to the company s own liability. C-Side Coverage Insures losses sustained by the company itself, regardless of any losses suffered by its directors and officers. 154

9 MISCELLANEOUS COMMERCIAL POLICIES Exclusions Professional liability policies, (including D&O) have common exclusions which include: Dishonesty Bars coverage for claims made in connection with an insured s dishonesty, fraud, or willful violation of laws or statutes. The dishonesty exclusion also may be coupled with a personal profit exclusion, barring coverage in connection with an insured s illicit gain. Insured vs. Insured Bars coverage for claims made by an insured (e.g., a director, officer or corporate insured) against another insured. Professional Liability This exclusion is found mostly in D&O policies and prohibits coverage for liability associated with the provision of professional services. For instance, if a physician is the president of a professional corporation, a D&O policy would only protect him against liability from acts performed in that capacity and not for any medical malpractice claims. The line between professional services and acts outside the scope of this exclusion can be a fine one, which the courts are sometimes required to draw. General liability policies also often have this exclusion. Prior Acts Prior and Pending Litigation Price, Cost and Performance Another typical exclusion involves claims due to contractual guarantees or other express warranties of price, cost or performance, or a return of fees. Bodily Injury/Property Damage Medical Professional Insurance Medical Professional or Malpractice Insurance is sometimes referred to as Physicians, Surgeons, and Dentists Professional Liability. It provides protection against liability arising out of the failure to use due care and skill in one s profession and is not a substitute for other forms of liability insurance. The insurance covers professional acts, mental anguish (personal injury), accidents, and some intentional acts. The policy does not cover employees injuries. The Consent to Settle a Loss Provision may appear in some Medical Professional policies, which means that the insurer must have the written consent of the insured to settle the loss Equipment Breakdown Insurance Equipment Breakdown insurance (sometimes referred to as Boiler and Machinery ) began with the inspection and insuring of steam boilers, it has since expanded to include other pressure devices and machinery. Today, almost any machine subject to accidental breakdown that could destroy or damage a large part of the machine is eligible for coverage, in addition to steam boilers. Equipment Breakdown may be purchased as part of CPP, or as a monoline policy. Equipment Breakdown Protection Coverage Form Definitions Breakdown Failure of pressure or vacuum equipment; mechanical failure including rupture or bursting caused by centrifugal force; or electrical failure including arcing that causes damage to covered equipment and necessitates its repair or replacement. 155

10 CHAPTER TWELVE Breakdown does not include: Malfunction, including but not limited to, adjustment, alignment, calibration, cleaning, or modification Defects, erasures, errors, limitations, or viruses in computer equipment and programs Leakage at any valve, fitting, shaft seal, gland packing, joint, or connection Damage to any vacuum tube, gas tube, or brush Damage to any structure or foundation supporting the covered equipment or any of its parts The functioning of any safety or protection device The cracking of any part on an internal combustion gas turbine exposed to the products of combustion Business Income Net income (net profit or losses before income taxes) that would have been earned or incurred, and continuing normal operating expenses incurred, including payroll. Objects Covered Equipment built to operate under internal pressure or vacuum; electrical or mechanical equipment that is used in the generation, transmission or utilization of energy; communication equipment, and computer equipment; and equipment for any of the preceding that is owned by a public or private utility and used solely to supply utility services to the insured s premises. Covered Property Property that the insured owns, or property that is in the insured s care, custody, or control and for which the insured is legally liable. Extra Expense The additional cost the insured incurs to operate their business, during the period of restoration, over and above the cost that the insured would have incurred to operate the business during the same period, had no breakdown occurred. One Breakdown If an initial breakdown causes other breakdowns, they will all be considered one breakdown. All breakdowns at any one premises that manifest themselves at the same time and are the direct result of the same cause will be considered one breakdown. Period of Restoration The period of time that begins at the time of the breakdown or 24 hours before the insurer receives notice of the breakdown, whichever is later, and ends 5 consecutive days after the date when the damaged property is repaired or replaced with reasonable speed and similar quality. Retention Question 7 Which of the following would not be considered a breakdown? a. Failure of pressure or vacuum equipment b. Leakage in a valve or fitting c. Bursting caused by centrifugal force d. Electrical failure causing damage to equipment Retention Question 8 The period of restoration after a breakdown last until how many days following the date of repair or replacement? a. 5 b. 10 c. 15 d

11 MISCELLANEOUS COMMERCIAL POLICIES Coverages The following coverages are provided if listed on the Declarations Page, and the loss or damage is a direct result of a Covered Cause of Loss. Property Damage The form pays for direct damage to covered property located at the premises described in the Declarations. Expediting Expenses The form pays for the extra costs the insured necessarily incurs to expedite the permanent repairs or replacement. Business Income and Extra Expense The form pays the actual loss of business income during the period of restoration, and the extra expense the insured necessarily incurs to operate their business during the period of restoration. Spoilage Damage The form will pay for spoilage damage to raw materials, property in process, or finished products, provided the spoilage damage is due to lack or excess of power, light, heat, steam or refrigeration, and certain other stipulated conditions are met Farm Insurance Farm insurance includes Farm Property Coverage, and Farm Liability Coverage. Additional specialized forms include the Mobile Agricultural Machinery and Equipment Form and the Livestock Coverage Form. Farm Property Coverage Form The policy will pay for direct physical loss or damage to covered property at the insured location or elsewhere, as specifically provided, caused by, or resulting from, a covered cause of loss. For coverage to apply, there must be a limit shown in the Declarations. Property Coverages Coverage A (Dwellings) Provides insurance for the residential dwellings owned and occupied by the insured. It includes attached structures. Coverage B (Other Private Structures) Provides insurance for detached private garages and other private structures. These structures must be used personally and not for farm purposes. Coverage C (Household Personal Property) Provides insurance for household personal property owned by the insured and family members while on the premises. Coverage D (Loss of Use) Provides insurance for additional living expense and fair rental value. 157

12 CHAPTER TWELVE Coverage E (Scheduled Farm Personal Property) Provides insurance, subject to the 80% coinsurance requirement, for specific types of property if a limit of liability appears on the Declarations for that type of property. For example, grain and hay, farm products, poultry (other than turkeys), and computers and related equipment used for farm management. Coverage F (Blanket Farm Machinery, Tools, Equipment, and Supplies) When a limit of liability is stated in the Declarations, covers all farm machinery and equipment owned or leased for longer than 6 months, and all newly acquired and replacement equipment. New and replacement equipment acquired within the past 60 days is covered for an additional $250,000 if standard coverage limits are exhausted following a loss. Generally property excluded under Coverage E, as well as grain, hay, straw, farm products and nursery stock, bees, worms, fish, and livestock, poultry, and other animals, boxes and bins, irrigation equipment and office equipment, are also excluded under Coverage F. Coverage G (Farm Buildings and Other Structures) Provides insurance for described farm buildings and structures other than dwellings and its attached sheds and permanent fixtures. Coverage includes portable buildings and structures, all fences, corrals, pens, chutes and feed racks (except field and pasture fences), as well as fixed irrigation systems (including pumps, attached pump houses, electrical panels, pressure tanks, and filtration systems), private telephone and electrical systems and apparatus, and, if stated in the Declarations, silos. Coverage is also provided for building materials and supplies, windmills and wind chargers (and their towers), and above-ground fuel storage tanks. Also included in Coverage G is Fire Legal Liability for non-owned outbuildings. Farm Liability Insurance The Farm Liability Coverage Form contains 3 major coverages, H, I and J. Coverage H (Bodily Injury and Property Damage Liability) Coverage H pays sums that the insured becomes legally obligated to pay arising from bodily injury or property damage on an occurrence basis. Coverage includes product liability from the sale of farm products. Coverage I (Personal and Advertising Injury Liability) Coverage I provides for payment of sums, that the insured becomes legally obligated to pay, arising from personal or advertising injury, to which the insurance applies. An offense must be related to the farming business. For example, The insured unknowingly libels a neighbor s farm products. Coverage J (Medical Payments) Coverage J provides third-party payments for reasonable medical expenses arising out of an accident, if the expenses are incurred and reported within 3 years of the accident date. The Medical Payments limit applies per person, and payment is made regardless of fault. Retention Question 9 Which of the following is true about Farm Insurance? a. It offers commercial property coverage, but no liability b. It offers medical payments, BI and PD, but no personal injury coverage c. Coverage F covers Other Farm Structures d. Coverage E covers only those property types indicated in the Declarations 158

13 MISCELLANEOUS COMMERCIAL POLICIES 12.7 Crop Insurance Crop insurance is a specialized policy that protects the insured against reduced yield because of a covered loss to crops before they are harvested. (Growing crops are excluded from coverage in the Farm Property Coverage Form.) Multi-Peril Crop Insurance (MPCI) The coverage is written by private insurers and is reinsured by the Federal Crop Insurance Corporation (FCIC). Coverage may be provided for approximately 200 different types of crops, but 5 major crops (corn and maize, cereal grains, soybeans, tobacco, and cotton) account for 90% of the liability assumed. Covered causes of loss include: adverse weather conditions, fire, insects, plant disease, wildlife, earthquake, and volcanic eruption. Retention Question 10 Which of the following forms would insure against the risk of a farm s reduced crop yield? a. Farm Property Coverage Form b. Farm Liability Coverage Form c. Multi-Peril Crop Insurance d. Commercial General Liability 159