The Fascinating World of Insurance, Indemnification and Contracts. AOA 2015 Annual Conference Pasadena, CA. Presented by: Zachary Gifford

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1 AOA 2015 Annual Conference Pasadena, CA The Fascinating World of Insurance, Indemnification and Contracts Presented by: Zachary Gifford Director, CSU Systemwide Risk Mgmt. Daniel J. Howell, CSURMA Program Director Alliant Insurance Services

2 Presentation Outline Indemnification Insurance Requirements Drafting to Fit the Need Verification of Coverage Document Retention Policy & Procedure Claims Sources of Knowledge Conclusion & Questions 1

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 2

facility damage Tool and equipment damage Production and/or schedule

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. 3

5 Indemnification How Does it Work? Insurance language flows from agreements made in indemnification Insurance is the "collateral" for the indemnification. Ensures that there are funds available to back up most of the indemnity provisions. Start with negotiating CSU s preferred indemnity language and then move on to the insurance to support the indemnity. 4

6 Hold Harmless vs. Additional Insured 5

7 Three Main Types of Indemnification 1. Strict (or Type I ) Indemnification Contractor indemnifies entity for all claims costs arising from project except entity s Sole Negligence or willful misconduct. 2. Intermediate Form (Construction Projects) Contractor Indemnifies except for entity s active negligence or willful misconduct 3. Limited Form Contractor indemnifies for contractor s negligence Can be used for cross indemnity comparative negligence See OGC requirements. 6

8 Note On Hold Harmless Agreements: It is important to make certain that attorney fees and litigation expenses are assumed by the contractor in the indemnity and hold harmless section of the contract. Failure to do so will result in these expenses not being covered. Additionally, the new Commercial General Liability form restricts defense costs to only those lawsuits involving issues that are covered perils under the contractor's insurance 7

9 Additional Insured Endorsement The most preferred insurer endorsement is Insurance Services Office (ISO) Form No. CG , covering damages arising from your work = rev. date = Nov Covers both products and completed operations ( your work ) as well as ongoing operations, with potential to cover your sole negligence as well. Newer forms may have to be accepted rev. dates or latest =

10 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 the same coverage as the form The and versions of the forms above eliminate coverage for your sole negligence 9

11 04 13 changes Impact to AI Endorsement Provides AI coverage only for contractor s sole negligence. Sets up potential for conflict of interest between named and additional insureds Insurer will want to show named insured 0% at fault, to eliminate coverage for AI AI will want to show named insured at least 1% at fault, to trigger coverage Conflict could serve no other purpose than to erode the available limits by paying for AI defense! Due to changes in Insured Contract definition 10

12 Changes in Latest Endorsements Limits contractual liability coverage to vicarious liability of the indemnitee Only provides coverage to the amount of insurance requested. > We have added suggested language to the manual that should be reviewed with University Counsel New CG endorsement is a benefit for handing AI status with subcontractors where there is a written requirement for subs to indemnify owner 11

13 Additional Insured Endorsement Be wary of non ISO / carrier specific endorsements Can contain limitations, such as Amended Duties in the event of occurrence, claim or suit Condition 12

14 Just Say No? Where to Draw the Line At what point will the campus/organization be so exposed that the proposed indemnity clause is too risky? Recommendation: Focus on indemnification before insurance. Recommendation: Involve campus Risk Management team in negotiations that deviate from approved indemnity language. 13

15 Insurance Requirements Drafting to Fit the Need Evaluate the risk Who could be harmed? Visitors attracted? What are the activities and maximum likely loss? Dangerous? Crowds? Pollution? Alcohol? Where? On vs. off campus? Site control? When? Night? During sporting events? How likely would the campus/organization be a defendant if there is a loss? 14

16 The Risk Management Process Identify exposures Analyze exposures Consider feasibility of alternative techniques to treat exposure 1. Prevention/reduction 2. Retention 3. Risk financing 4. Avoidance 5. Transfer Select the best technique Implement technique Monitor results and change as needed. 15

17 Key Insurance Industry Terminology (First) Named Insured, Additional named insured, Additional insured Severability of interest this cross liability clause describes the separation of insureds and allows additional insured to claim against insured but also be treated separately Insured contract definition Occurrence vs. claims-made coverage Prior acts (nose) and extended reporting (tail) coverage Per Occurrence vs. Annual Aggregate limit Deductible vs. Self-Insured Retentions See also on-line insurance dictionaries.. 16

18 The Basics Avoid terms that do not have meaning in the insurance industry Request coverage on an occurrence basis, except professional liability can be claims-made. Describe maximum deductibles or self insured retentions Require the addition of the campus or organization, etc. as an additional insureds by endorsement to all policies except workers' compensation and professional liability. 17

19 The Basics (cont d) Require the other party's insurance be primary Require at least 30 days notice of cancellation Require an aggregate limit higher than the occurrence limit (note TULIP program has 1x agg.) Specify that insurance be placed with insurers that meet a A.M. Best's minimum rating of A-:VII Financial Strength to determine if carrier is strong enough to back the insurance contract that is backing the indemnification language Management Rating = Letters Financial Size Category = Roman Numerals A Cut-through endorsement to a higher rated reinsurer may be used to solve a low rated carrier problem with SORM review. 18

20 The Basics (cont d) Require that the contractor s insurer waive subrogation against University Subrogation is the requirement that the insured transfer rights of recovery to the insurer. i.e.. Insurer pays claim for property damage, seeks recovery from third party CSU does not want to be that third party! If necessary, only waive CSU s right to subrogation on property, and even that creates significant exposure. Example claim: The vending machine. 19

21 Basic Types if Insurance Coverage Contractor Bonds: Bid Bond: Contractor will enter contract at bid amount. Performance Bond: Contractor will perform job and complete the contract. Payment Bond: Contractor will deliver the project free of subcontractor/materials providers liens. 20

22 Basic Types if Insurance Coverage Liability for torts, Fed/State statutory actions General Liability: Commercial General Liability form, formerly Comprehensive General Liability. Bodily Injury, Personal Injury, Liquor liability Host vs. sales Property Damage third party property Products & Completed Operations includes insured contracts, but not breach of contract. 21

23 Basic Types if Insurance Coverage Liability Coverages (cont d) Auto Liability note transportation of hazardous substances and the MCS 90 form Directors & Officers Liability (D&O) called Public officials liability if contracting with a public entity Employment Practices Liability (EPL) Employee benefits liability (plan management) Professional Liability (E&O) When is professional liability needed in addition to general liability? Hands vs. Head Additional insured status is not applicable to D&O and E&O. 22

24 Basic Types of Insurance Coverages Property Insurance Coverages Special Form formerly called All risk, form broader coverage than named perils or extended perils. Excludes earthquake and flood Course of Construction sometimes called Builder s Risk may include Eq. & Flood Inland Marine/Installation Floaters Miscellaneous Coverages Aircraft Watercraft Technology/research/spacecraft 23

25 Basic Types of Insurance Coverages Workers Compensation Coverage A: Statutory benefits prescribed by law Coverage B: Employer s Liability (EL) this is not employment practices liability (EPL). EL covers common law actions outside of the statutory benefits coverage Other Related Coverages: USL&H long shore and harbor workers (on the dock) Jones Act workers on the water Railroad Defense Base Act 24

26 Insurance Policy Forms Standard forms issued by the insurance Services Office (ISO). Larger insureds can negotiate manuscript forms. Recent Additions to ISO CGL policy forms and additional insured endorsement forms severely limit coverage Definition of insured contract Defense within the limits for non vicarious liability Elimination of coverage for completed operations Review of Sample forms and a workaround to keep coverages 25

27 Insurer Ratings Will they be there? Two Main Insurer Rating Agencies Standard & Poor s A.M. Best Best s Ratings Standard and Poor s A++, A+ Superior AAA Extremely Strong A, A- Excellent AA +/- Very Strong B++, B+ Very Good A +/- Strong B, B- Good BBB +/- Adequate C++, C+ Fair BB +/- Less Vulnerable C, C- Marginal B +/- More Vulnerable D Below Minimum Standards CCC +/- Currently Vulnerable E Under State Supervision CC +/- Currently Highly Vulnerable F In Liquidation R Under Regulatory Supervision +,- These signs following the letter rating indicate the relative position within the class Italics represent minimum recommended. 26

28 Best s Financial Size Category (FSC) Reported Capital, Surplus and Conditional Reserve Funds (in Millions) FSC VII $50 to $100 Minimum rec. FSC VIII 100 to 250 FSC IX 250 to 500 FSC X 500 to 750 FSC XI 750 to 1,000 FSC XII 1,000 to 1,250 FSC XIII 1,250 to 1,500 FSC XIV 1,500 to 2,000 FSC XV Greater than $2,000 27

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

30 How Much Coverage is Enough? Guidelines matrix High, Moderate, Low Tort costs increased 5.1% in 2010, 8.7% average annual increase since 1951! (Towers Watson s US Tort Costs: 2011 Update) $1 million in 1986 is over $4 million today with PV based on COLA $1 million in 1986 is over $9 million today with PV based on tort inflation Analyze the Exposure Maximum Possible vs. Maximum Probable Loss 29

31 30

32 Rating Alternative Risk Transfer Vehicles Many organizations are moving to alternative Risk Financing Vehicles Self Insurance Workers Compensation regulated stand alone, and Self Insured Groups Liability not regulated High self insured retention Risk Retention Groups Captive Insurance Company How does one evaluate these ART Vehicles? 31

33 Bid Situations Would your campus/organization decline a bid not meeting the minimum requirements? Drafting with wiggle room to allow the entity to accept the best bid in light of all the facts and circumstances. 32

34 When CSU/A.O. is the Contractor Role Reversal Can the CSU or Auxiliary Organization comply with the Insurance Requirements? > CSURMA s programs have significant elements of self-insurance and pooling that is not traditional insurance > CSURMA issues certificates of coverage not certificates of insurance. > The University and auxiliary organizations should include agreement language that allows for selfinsurance and/or pool participation 33

35 Verification of Coverage Having a Process What is your threshold for obtaining certificates, vs. policies vs. endorsements? How do you determine the appropriate coverages and limits? How do you determine and respond to noncompliance? Will the job be delayed or halted? Leverage after commencement? Using the Process HDIKT How do I know that an audit trail documenting compliance Get Involved Early Sample Certificate Sample Checklist 34

36 Certificate of Liability Insurance (Annotated Form) 35

37 Sample Checklist 36

38 Document Retention Policy & Procedure Your Certificates & Endorsements are your insurance policy. How long does your campus/organization keep its own insurance policies? Alternative storage methods. 37

39 Claims Responding to Loss Events Reporting to Contractor s Insurers The Subcontractor s Subcontractor Chasing Certificates and Endorsements Special Situations (such as Underwater Construction, Asbestos Removal, Blasting). Negotiating Your Coverage 38

40 Sources of Knowledge Peer group Campus Risk Management team Access to their resource pool Systemwide Office of Risk Management Main line (562) CSURMA Program Administrators at Alliant Main line (415) The risk management community Manuals Feedback through campus risk management Developing a library based on experience Odds are, this is not the first time the issue has come up no need to reinvent the wheel! 39

41 Sources of Knowledge 40

42 Discussion and Questions 41

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

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