Policyholder Diligence Ensures You’re InsuredPolicyholders take notice – a recent New York case highlights the importance of thoroughly analyzing and understanding all policy language to minimize project risk and ensure proper coverage. As an illustration, the Court of Appeals of New York recently held that a named additional insured was not covered under an insurance policy because the plain meaning of the language in the policy endorsement required a written contract between the policyholder and the additional insured.

In Gilbane Bldg. Co./TDX Construction Corp. v. St. Paul Fire & Mar. Ins. Co., the Dormitory Authority of the State of New York (DASNY) contracted with Samson Construction Company as general contractor for the construction of a new building. DASNY also contracted with a joint venture, formed by Gilbane Building Company and TDX Construction Corporation (the “JV”), to serve as construction manager on the project. The contract between DASNY and Samson required Samson to procure general liability insurance for the project and name the JV as an additional insured. Samson obtained this coverage from Liberty Insurance Underwriters.

Thereafter, DASNY sued Samson and the project architect. In turn, the architect filed a third-party complaint against the JV, which then provided notice to Liberty seeking defense and indemnification. Liberty denied coverage, and the JV initiated suit against Liberty, arguing that it qualified for coverage as a named additional insured. The New York Supreme Court denied Liberty’s motion for summary judgment and held that the JV was an additional insured under the applicable insurance policy. The Appellate Division reversed and the Court of Appeals affirmed.

The court reviewed the language of the additional insured provision which read, in relevant part, “an insured [is] any person or organization with whom you have agreed to add as an additional insured by written contract…” Here, the JV and Samson did not have a written contract with one another. Nonetheless, the JV argued that the written contract requirement conflicted with the plain meaning of the language in Liberty’s endorsement, “well-settled rules of policy interpretation,” and the parties’ reasonable expectations. The court disagreed, and found that the language was facially clear. It concluded that Liberty’s endorsement would only provide coverage to the JV if Samson and the JV entered into a written contract because “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning.”

The court then explained how the outcome would differ if the provision did not include the word “with.” In that case, the endorsement would have provided coverage to “any person or organization whom [Samson had] agreed by [any] written contract to add…” Since Samson already contracted with DASNY to add the JV as an additional insured, coverage would have been effective as to the JV.

Regardless of the type of insurance policy at issue, it is critically important to thoroughly analyze the policy documents to ensure an accurate understanding of the language used. Individual policyholders often take policy language at face value, if they read the terms of the policy at all, and never question what coverage they have actually purchased. Similarly, when the policy at issue is part of a larger set of contract documents, companies often become complacent during the contract review process—especially when certain documents appear boilerplate or seem like only a minor formality to finalize a contract. Oftentimes, the perceived need for reviewing policy language is further dampened by the fact that the insurance policy comes into existence after the project contract is signed, such as the policy in this case.

As a result of complete oversight, the hurried nature of review, or the overwhelming volume of contract documents requiring review, policyholders can easily adopt a reading of policy language that might reflect reasonable expectations but does not necessarily adhere to the plain meaning of the language. Diligence must extend to the review of insurance policies because ignoring the actual language of the policy can result in significant risk exposure.  If you have any questions or concerns about your current insurance coverage or upcoming project needs, please contact Alex Thrasher and the team at Bradley to learn more about ways to ensure that you’re covered.

Drones: Weighing the Pros and Cons of Three Insurance Strategies for this New TechnologyUse of unmanned aircraft ­– drones – has grown dramatically in recent years, but purchase of coverage for drones has lagged behind. If your company has not revised its insurance program to include drone coverage, your company could be without coverage for this new and increasingly important technology.

More than 2.5 million drones were sold in 2016, and the Federal aviation administration expects that number to grow to 7 million in 2020. While many drones are sold to hobbyists, commercial applications for drones constitute an increasing share of the drone market. Construction companies, agricultural operations, real estate agents, insurance claims adjusters, photographers, delivery services, and surveyors are just a few of the companies and professionals now exploring use of this new technology to improve services and increase profits. Some companies are purchasing drones while others are relying on third-party vendors to provide drone operations.

As with any new technology, however, drones pose unique insurance challenges, which, if left unaddressed, could lead to potentially uncovered insurance losses. To ensure that your company is protected for drone operations, you should:

  • Assess your company’s use of drones to determine potential exposure for property loss and third-party liabilities.
  • Review existing policies to determine whether drone liabilities are insured (they likely are not).
  • Determine whether to add drone coverage to your existing property and commercial general liability policies, to purchase a specialty drone policy, or to rely on third-party vendor coverage for liability exposures arising from that vendor’s drone operations.

Traditional Insurance Policies May Not Insure Drone Liabilities

Use of drones in business operations is likely not covered under your existing insurance policies due to the commonly included “aircraft exclusion.” While most non-aviation policies do not define “aircraft,” insurers will likely argue that drones constitute “aircraft,” leaving you with, at best, a messy fight with your insurance company to obtain coverage, and, at worst, no coverage at all. Pay careful attention to policy language to determine the availability of coverage.

Three Options for Drone Coverage

  • Unmanned aircraft endorsements to existing insurance policies – Your current insurance carrier may offer insurance for drones through endorsements to your property, inland marine, and commercial general liability policies. ISO form endorsements for these policies provide first- and third-party insurance coverage for drone use in commercial settings. While these endorsements expand coverage for drones, consider them in light of your company’s business operations to avoid leaving your company exposed for certain potential loss scenarios.
  • Specialty market aircraft coverage – If your company regularly uses drones in its business operations or maintains a fleet of drones, consider purchasing a specialty insurance policy to insure your drone use. While not every commercial application for drones requires specialty coverage, a drone-specific policy can provide a more complete coverage option for companies that regularly employ drones in their everyday business.
  • Coverage as an additional insured under vendor’s insurance policies – If your company relies on third-party vendors to operate drones on its’ behalf, require the vendor to name your company as an additional insured under its policies. This strategy is not without risks, however, as your coverage is dependent on the limits, coverage grants, and exclusions of a policy that you did not negotiate and may not even have seen prior to the loss event. Require your vendor to provide a copy of the applicable insurance policies; do not rely on a Certificate of Insurance (COI). Only the insurance policy provides coverage; COIs expressly disclaim coverage and instead state that the insurance policy alone provides coverage.

New York’s highest court recently ruled that a commercial general liability (CGL) policy’s additional insured provision, similar to ISO form no. CG 20 33 04 13, does not grant additional insured status to a third party not contracting directly with the named insured. The contract between the project owner and the subcontractor required the subcontractor to name the construction manager as an additional insured on the subcontractor’s CGL policy. Because the construction manager did not contract directly with the subcontractor, the court held that the construction manager was not an additional insured under the blanket “Additional Insured – By Written Contract” clause in the subcontractor’s CGL policy — even though the Certificate of Insurance (COI) identified the construction manager as an additional insured. The insurance policy, not the COI, controlled the insurance coverage.

This ruling highlights two important best practices. First, to provide additional insured coverage to a party with whom the named insured does not have a direct contract, the insurance policy should contain a blanket additional insured endorsement equivalent to ISO Form CG 20 38 04 13 (or a manuscript endorsement specifically naming the additional insured). ISO Form CG 20 38 04 13 provides additional insured coverage to a third party as long as the coverage is required in a written contract to which the named insured is a party. This endorsement does not require a direct written contract between the named insured and the additional insured. Second, an additional insured should not rely on a COI for coverage. When possible, the additional insured should obtain a complete copy of each insurance policy (including endorsements), or, at a minimum, a copy of the additional insured clause, to assess the available coverage.

What You Need to Know

  • If you do not contract directly with an entity required to name your company as an additional insured, you must ensure that the applicable insurance policy grants additional insured status without a written contract directly between the named insured and the proposed additional insured similar to ISO form CG 20 38 04 13.
  • A COI is not evidence of insurance coverage; the insurance policy controls the available coverage.
  • Obtain a copy of the insurance policy with all endorsements when expecting coverage as an additional insured to avoid unpleasant surprises later on. If you cannot obtain the entire insurance policy, seek a copy of the additional insured clause to assess the available coverage.

Summary of the Court’s Decision

In the New York case Gilbane Building Co./TDX Construction Corp., et al. v. St. Paul Fire and Marine Insurance Co., allegedly defective excavation work while building an addition to Bellevue Hospital in New York allegedly cause an adjacent building to sink and resulted in additional remediation costs and litigation against the subcontractor.

The subcontractor, Samson Construction Company (subcontractor), contracted with the project owner, Dormitory Authority of the State of New York (project owner), but not with the construction manager, Gilbane Building Co./TDX Construction Corp. (construction manager). The subcontractor agreed to name as additional insureds: “Dormitory Authority of the State of New York, The State of New York, the Construction Manager (if applicable) and other entities specified on the sample Certificate of Insurance provided by the Owner.”

The subcontractor procured a CGL policy that named as an additional insured “any person or organization with whom you [the insured] have agreed to add as an additional insured by written contract.” The COI named the construction manager as an additional insured: “The following are Additional Insureds under General Liability as respects to this project:  City of New York; City of New York Health & Hospital Corporation; Forensic Biology Laboratory; Dormitory Authority-State of New York; Gilbane/TDX Construction Joint Venture.”

The project owner sued the subcontractor and the project architect for the allegedly defective excavation, and the architect filed a third-party claim against the construction manager. The project owner notified the insurer of the claim approximately five months after suit was filed.

The construction manager sued the insurer for defense and indemnity. The insurer moved for summary judgment arguing that the construction manager did not qualify as an additional insured. The trial court denied the insurer’s motion because it found that the policy “requires only a written contract to which the Subcontractor is a party,” which was satisfied by the subcontractor’s contract with the project owner.

The appellate court reversed because the subcontractor did not contract directly with the construction manager as the subcontractor’s policy required. The court stated that “the ‘Additional Insured-By Written Contract’ clause of the [Insurer’s] policy clearly and unambiguously requires that the named insured execute a contract with the party seeking coverage as an additional insured. Since there is no dispute that the Subcontractor did not enter into a written contract with [the Construction Manager], the Subcontractor’s agreement in its contract with the Project Owner to procure coverage for [the Construction Manager] is insufficient to afford [the Construction Manager] coverage as an additional insured under the [Insurer’s] policy.” The court applied a “literal” application of the clause and required a contract directly between the construction manager and the subcontractor. Finding no contract, the court denied coverage to the construction manager.

To learn more about additional insured coverage, please check out our construction webinar series: Constructing the Best Coverage for You and Constructing the Best Coverage for Project Owners.