Effective Contractual Risk Transfer is Free Insurance! CSU Fitting the Pieces Conference April 23, 2012 Presented by: Charlene M. Minnick, Assistant

Transcription

1 Effective Contractual Risk Transfer is Free Insurance! CSU Fitting the Pieces Conference April 23, 2012 Presented by: Charlene M. Minnick, Assistant Vice Chancellor, Risk Management & Public Safety Dan Howell, CSURMA Program Director

2 Educational Objectives 1. Understanding Risk Transfer Process Risk Identification Hold Harmless/Indemnity Insurance 2. Understanding CSU s Executive Orders Coded Memo s & TL s 3. Insurance Specifications 4. Compliance 5. Recordkeeping 6. Claims 7. IRIC Reference Manual 2

3 Hidden (and Uninsured) Costs of Accidents Time lost from work by injured Lost time by fellow workers Loss of efficiency due to breakup of crew Lost time of supervision Decreased output of injured worker on return Cost to hire replacement employee Cost of training and/or break-in of new employee 3

4 Hidden (and Uninsured) Costs of Accidents (cont.) Overtime paid to remaining employees Clerical time Building or facility damage Tool and equipment damage Production and/or schedule delays and liquidated damages potential From International Risk Management Institute, Inc. 4

5 The Horror Show 5 5

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7 Risk Transfer What is It? Shifting responsibility for loss or damage arising from the activities of a contract from one party to the other Hold harmless or indemnification clause Does NOT absolve University of liability Gives you a pocket from which to pay Only as good as the person making the promise that s why you require insurance 7

8 Risk Transfer When To Do It? Construction projects Professional services Outsourced functions Property leases Special events Permits Foreign Travel 8

9 Risk Transfer Why Do It? Can be liable for damages have risk If you don t transfer the risk, you ve kept it Rely on the expert Place risks with those able to control Encourage safety Source for payment of claims Maintain project budget Maintain good loss history, lower premium 9

10 Risk Transfer How To Do It? 1. Identify & measure risk 2. Indemnification - Hold Harmless 3. Use proper insurance specs 4. Require evidence of compliance 5. Check for compliance 6. Follow up until correct 7. Keep good records 8. Report claims promptly 10

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12 1. Identify & Measure Risk See EO 1069 Evaluate the risk: Who could be harmed? Visitors attracted? What are the activities and maximum likely loss? Dangerous? Crowds? Pollution? Alcohol? Minors? Where? On vs. off site? Site control? When? Night? How likely would the CSU be a defendant if there is a loss? 12

13 2. Utilize Hold Harmless Language* Defend and indemnify Any and all claims, suits, proceedings Costs paid as incurred Full extent as permitted by law Exception if transferor solely at fault or damages caused by his/her willful acts Apply to any subcontractors *Start with approved CSU language and refer to University Counsel See also Example waiver of liability language in EO 1051 for student activities. 13

14 Just Say No? Where to Draw the Line? At what point will the University be so exposed that the proposed indemnity clause is too risky? Recommendation: Focus on the RISK, before the indemnification, and before the insurance. Start from the best case for you and work your way backward. Involve staff, experts and/or University Counsel in review of risk and language. 14

15 Case #1 The Recently Retired Expert A Campus has contracted for construction of a new administration building. The Entity s construction manager who is responsible for overseeing execution of the project retires during the job. The campus wants to hire the retired construction manager to oversee completion of the job. What should you do about indemnification? Who is performing the services? -Independent Contractor? -Retired Annuitant? 15

16 Why Require Insurance? HH Agreement gives you a pocket to pick Insurance increases chance there will be money in the pocket Viability of contractor Want endorsement to the policy Policy amended to provide extra protection Additional insured status 16

17 17 17 Scenario #2 The Consultant Campus is hiring a consultant for the purpose of acquisition and placement of large sculptural art on campus. What exposures do you see? What coverages should be required? General Liability? Auto Liability? Professional Liability? Workers Compensation?

18 Understanding CSU s Position Key Executive Orders Relative to Risk EO 1069 Insurance Requirements EO 1051 Waiver of liability Technical Letter TL RM CPDC Contract General Conditions 18

19 3. Use Proper Insurance Specs Avoid terms that do not have meaning in the insurance industry Request coverage on an occurrence basis, except professional liability Describe maximum deductibles or self insured retentions Require the addition of the CSU or Auxiliary Organization as an additional insured by endorsement to all policies except W.C. and professional liability 19

20 Insurance Specs (cont d) Require the other party's insurance be primary Require notice of cancellation Aggregate limit higher than the occurrence limit Specify that insurance be placed with insurers with A.M. Best's minimum rating of A-:VII Special Note: CSU has initiated an owner controlled insurance program (OCIP) for certain major capital outlay projects. The OCIP insurance requirements are spelled out in the specific Contract General Conditions 20

21 How Much Coverage is Enough? Tort Costs increased over 75% since 2001 An average annual increase of 9.5% over the past 55 years Jury Verdicts Up Substantially (See Analyze the Exposure Maximum Possible vs. Maximum Probable Loss 21

22 What Limits Are Reasonable Today? Limits General Liability $1 million per occurrence and $2 million aggregate is minimum this has been the requirement since 1991 Risk Managers need to use their judgment Higher limits million for construction trades, food service, swimming, etc. $10 million for major capital or higher risk contracts involving crowds, child care, toxics, etc. $10 million and up for transportation, etc. 22

23 23 23 Scenario #3 I Can t Afford Your Limits A campus has a goal of contracting with local vendors. One of the local vendors is Pete s Plumbing. They have been hired to install a new water line. Their CGL policy has a $250,000 liability limit. They say the cost of commercial liability insurance with a $1,000,000 would be an additional $1,500 - which is more than their expected profit from the project. What do you do?

24 Scenario #4 I Can t Find An A Rated Company! A campus is contracting with a firm for a minor remodeling project. The contractor submits insurance showing a B+ VIII Commercial General Liability insurer. What do you do? What if the B+ VIII paper was instead providing Workers Compensation coverage? 24 24

25 Cumulative Average Impairment Rates by Best Financial Strength Rating* 60% 50% 40% 30% Insurers with strong ratings are far less likely to become impaired over long periods of time. Especially important in long-tailed lines. 20% 10% 0% Average Years to Impairment Sources: A.M. Best: Best s Impairment Rate and Rating Transition Study , March 1, D C/C- C++/C+ B/B- B++/B+ A/A- A++/A+ 25

26 4. Require Evidence of Compliance Notify of requirements early, at pre-bid stage Obtain before work begins, but no waiver if not received Certificate of insurance Additional insured endorsement 26

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29 5. Check for Compliance Name of the Insurance Company issuing each policy Named Insured Address of the Named Insured Description of Coverage Policy Limits occurrence and aggregate Policy Numbers Policy Periods Coverage Type (Occurrence vs. Claims Made) 29

30 6. Follow Up Until Correct If not supplied or wrong form, keep trying If do not have required coverage or endorsement, consider risk and options Vendors/contractors insurance available If project lasts beyond policy expiration set reminder for 45 days prior and request if not yet received 30

31 Additional Insured Endorsement MUST have to amend the policy This endorsement modifies insurance provided under the following : Direct rights to recovery under the policy General liability most important Auto liability not critical since most policies have omnibus wording Workers Compensation important only if contracted employees are under your direction or control 31

32 Additional Insured Endorsement The most preferred endorsement is Insurance Services Office (ISO) Form No. CG , covering damages arising from your work. Covers both products and completed operations as well as ongoing operations Insurers will likely refuse to use old forms Newer forms may have to be accepted rev. dates 1001, 0704 or

33 Additional Insured Endorsement Newer endorsements forms that are acceptable, if CG not available: CG = ongoing operations CG = your work products completed operations hazard Must have both to get same coverage as 1185 form The 0704 versions of the forms above attempted to eliminate coverage for your sole negligence 33

34 7. Keep Good Records see E.O Original bid specs Original contract, addenda, support documentation Certificate(s) of insurance Additional insured endorsement Any other endorsements Copy of contractor s policy, if provided All correspondence concerning insurance or claims pertaining to the contract 34

35 8. Claims Responding to Loss Events Notify Systemwide Office of Risk Management immediately of critical events Reporting to Contractor s Insurers Notify designated claims coordinator w/in your campus/auxiliary organizaiton Notify CSURMA coverage provider as well 35

36 IRIC Reference Manual Developed and updated over the past 3 decades Relied upon by thousands of public entities Major revision in 2011 Version 7 This is a reference manual and is helpful to understand the general parameters of addressing risk and insurance requirements in contracts. Located at: 36

37 Questions? 37