E&O – (Not Just) Another Insurance Blog

Additional Insureds: a Reference (Work in Progress)

As there are already tons of learning opportunities regarding Additional Insured status, this post will instead be a general reference – it already assumes you’re well versed in the world of Additional Insureds. The following notes are especially relevant to construction industry clients as these are the primary drivers of complex AI requests, in my experience.

Since this is a reference it will be updated periodically. I will initially start with the oft-used GL AI forms, found especially in the construction world, and then proceed to review other options and how different lines handle AI. Please excuse any inelegant formatting and such as I’m still debating on how best to organize.

General Liability:

CG 20 10 11 85 – the “OG”, first created after the CGL overhaul in 1985.
- No limitation for Ongoing vs. Completed Ops
- Has historically been litigated to provide *sole* coverage for the AI (i.e., not limited to vicarious only)
- Technically out of use for ages but many, many carriers still offer it as market demand (via contracts) is high
- Still contains “[work] for that additional insured” limitation (see later) which can cause havoc with improper blanket wording

CG 20 10 10 01 – Very similar to CG 20 10 11 85, except limited to ONGOING operations only.
CG 20 37 10 01 – Very similar to CG 20 10 11 85, except limited to COMPLETED operations only.
The pair of CG 20 10 10 01 and CG 20 37 10 01 are functionally equivalent to the CG 20 10 11 85.

CG 20 10 07 04 & CG 20 37 07 04 – Uses the “10 01” language but adds the restriction that liability which triggers coverage for the AI must arise “in whole or in part” by your actions or those acting on your behalf. I.e., removes “sole negligence” coverage for the AI.

CG 20 10 04 13 & CG 20 37 04 13 – Uses the “07 04” language but adds the further restrictions that coverage is only provided to the AI if permissible by law and, if the AI status/coverage is dictated by contract, only to the extent required by the contract. E.g., if your contract requires limits of $500,000 GL (to which the AI is added), but you actually carry $1M limits, the endorsement limits payment to the AI to the contractually obligated amount ($500K).

CG 20 10 12 19 & CG 20 37 12 19 – Functionally equivalent to the “04 13” versions but an administrative clarification was made – the “Limits of Insurance” verbiage was amended to remove the reference to the limits “shown on the Declarations”; rather the endorsement merely states the AI coverage will not increase available limits (rather than “will not increase the limits [shown on the declarations]”). This is in recognition of the fact that limits can be amended by endorsement and thus the “hard” reference to the declarations may be in error. I am not aware of a lawsuit that prompted this but if you know of one please send my way!

The above endorsements are strictly “Scheduled” AI forms – meaning their technical use is limited to name a single, explicit entity to whom AI coverage is given. However it’s very common to have endorsements with manuscripted “blanket” language – for example the schedule might read “All parties with whom you have an executed written agreement to provide Additional Insured Coverage” or similar.

This is usually not a problem – and often the preferred way of writing these endorsements since many contractual parties want to see specific endorsement numbers – but it definitely can be. This is because each of these endorsements, even the “11 85”, has a limitation that states, essentially, coverage is limited to operations performed for the listed Additional Insured. Here is the relevant text from the CG 20 10 12 19:

[…] in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.

Note the explicit reference to both the Additional Insured and, in the CG 20 10 12 19, a specific location. This means that if your blanket language is insufficient, you could be leaving out a LOT of coverage for a LOT of third parties.

This is primarily a concern when the blanket language references only parties with whom you have a direct contractual relationship (privity). For example, in Westfield Insurance v. FCL Builders, Inc. the insured’s “Blanket” wording read:

“A. Section II — Who Is an Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such a person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.”

Reading that via the “four corners” analysis (as insurance courts do), the only entities to whom that “blanket” AI language applies are those with whom you have a direct contractual agreement to add that party as an AI. Basically, only the other party signing the contract will get the AI status.

But contracts regularly require other parties to be named as AI – and an insured signing such contract typically doesn’t have a direct contractual relationship with these parties. This happens all the time in the construction world – a first tier sub will almost always require their lower tier subs to add the project owner, project financiers, other subs further up tier. Heck, most construction contracts “kitchen sink” the whole thing by saying, “Hey, lower tier sub, you need to add anyone I, the upper tier sub, have agreed to add via all my other agreements.”

But this isn’t just in the construction world. Tons of contracts require you to name third parties. Think contracting with a landlord of a multi-use property – they may require you to indemnify other tenants, or their mortgage holder, or a specific vendor, or etc.

Because of this, the above blanket AI wording was found limiting – it does not apply to those third parties whom you were obligated to add as AI but with whom you do not have a direct contract (contractual privity). Yowza.

Because of this you must, must, must negotiate the proper “blanket” wording for AI forms. Simply securing the 10/01 or 11/85 editions is not enough – you must ensure it responds properly to all those entities to whom your insured is obligating themselves. As the “blanket” wording is often custom (and held over from when it was written on a typewriter), it’s imperative for the broker and legal counsel to determine propriety.

CG 20 33, CG 20 38, CG 20 39, CG 20 40 – This privity concern is also a huge issue when ISO attempted to provide a standard “automatic” AI status. Firstly, ISO released such endorsement only for Ongoing Operations, then while they did finally release one for Completed Ops as well both contained the privity issue, necessitating another set of endorsements (automatic status for other parties). When this post is updated in the future we will review those endorsements (CG 20 33, CG 20 38, CG 20 39, CG 20 40). The “TL;DR” of that is that the combination of those will imitate CG 20 10/20 37 12 19, but if you need “old” coverage you’re stuck with the above scheduled forms until the cows come home.

When Outside Defense Isn’t

Defense costs “Outside” the Limit of Insurance is almost taken for granted and it’s becoming a more common feature for policies that have historically been purely “Inside Limits” policies. Even with policies such as Directors & Officer’s Liability you’re seeing additional limits and – depending on the type of policy (Non-profit, etc.) – full “Outside Limits” Defense coverage.

Defense is usually paid as “supplemental costs” in a policy, and an insuring agreement will usually say something like, “We will pay all costs we incur, including legal and defense fees.” It is important to highlight, then, that it isn’t *technically* “Defense Costs” that are “outside the limits” on these policies, rather it’s the non-indemnity costs incurred. This is an important distinction when a policyholder has agreed to indemnify someone via contract. The short version of why is because contractual costs are “indemnity” loses to the policy holder, even if those costs are earmarked in the contract for defense.

The reason for this is because indemnity, even of a third party’s defense costs, are considered “damages” (or similar) by the policy. In fact the CGL expressly says this. In the Contractual Liability exclusion of the CG 00 01 10 01, to which there are many exceptions, we find this language:

Solely for the purposes of liability assumed in an “insured contract”, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages…

Note there are some provisions you can find under “Supplementary Payments” that allow defense costs “outside” for the indemnitee when various conditions are met, and these typically require the indemnitee to subjugate themselves to handing over all defense options to the insuring carrier – something many won’t wish to do.

I’ve seen contracts that specifically require one party to indemnify another and specifically states that any insurance defense should be “outside” the limits. On the retail side this problem is often met by adding an Additional Insured provision to the policy. But this isn’t a perfect solution either as many Additional Insured provisions are now, themselves, stating that defense costs are specifically “inside” the Limit of Insurance.

This type of language has not yet made it into ISO forms, as far as I’m aware, but we have seen ISO continue to restrict Additional Insured endorsements. One major recent change being that (e.g.) on the CG 20 10 the coverage afforded to an Additional Insured is specifically limited to that which is required by the contract. This alone could be sufficient for a carrier to say that “outside” defense coverage shouldn’t be assumed as “required by the contract”, hence the AI does not enjoy such.

Even if not, I imagine we’ll see some of the “Standard” Additional Insured endorsements specify “inside” defense coverage soon enough, though “soon enough” is relative in the insurance industry when changing a comma on an ISO form can take a decade. For now, take a close look at your AI endorsements and any “automatic” provisions to see what is offered; this limitation could already be in place – this is especially the case for proprietary/non-standard/excess lines forms.

Arbiters and Conflicts of Interest

An interesting story at Professional Liability Matters regarding an arbitration settlement that was voided because the arbitrator, in this case as judge, did not disclose an affiliation he had with one of the parties. You can read the article here. The interesting part comes in the legal theory to determine conflict; from the California Court of Appeals (emphasis added):

On appeal, the California Court of Appeals noted that the standard for disclosure is not whether the judge was actually biased, but whether a reasonable person “could entertain a doubt that he could be impartial.” Because the judge included one of the firm’s partners as a reference on his resume, the court determined that this standard was met. Accordingly, the Court held that the judge had erred in failing to make the disclosure and vacated the arbitration award.

This touches on a topic that insurance coverage lawyers have been dealing with for years. Namely, that an insured can state that a particular lawyer or firm, in a case where a determination of coverage impacts that insured, has a potential conflict of interest simply because they are panel counsel of the insurance carrier and thus the carrier has sway over their economic likelihood. I.e., it’s theorized a particular law could have an incentive to perform in the insurance carrier’s favor rather than in the insured’s favor.

An example would be a situation where an insured is brought up on potential fraud charges. The theory goes – and mind this is simplified and subject to jurisdictional law – that a carrier’s panel counsel has incentive to steer the decision toward a finding of fraud rather than negligence so that the insurance carrier will not have to pay an award. This would then encourage the carrier to use that particular counsel in the future. c.f. San Diego Navy Federal Credit Union, et al. v. Cumis Insurance Society, Inc.

States handle this matter differently – some state that a conflict doesn’t really exist or, if it does, the professional ethics and requirements put upon lawyers is sufficient to preclude “steering” cases in this manner. While an insured can still hire their own counsel in cases they believe they have conflict, many locales state it’s at their own cost. However, other jurisdictions do require the carrier to pay for an insured’s independently chosen counsel if there’s a significant conflict.

In jurisdictions where “independent counsel” is mandated (California being one) an interesting question arises when an insurance contract has an arbitration clause. I’ll be honest in saying that I’m not familiar with California policies, but if their arbitration clauses read like others I’ve seen then an insurance contract can require insureds to submit to binding arbitration in matters of dispute. These clauses often specifically define the firm to be used.

If such is in your contract, it seems like a potential “steering” problem, similar to that exists with lawyers, is created. After all if a state assumes that legal counsel will be influenced by volume of business, why wouldn’t an arbitration firm? I’ll admit it’s probably a harder argument to make, but certain jurisdictions consider a legal counsel conflict to be per se, so if the conflict is automatically presumed, it’s not that big of a stretch to apply it to other scenarios.

And remember the article above – in the situation of this particular arbiter, all that was needed was for a “reasonable person” to “entertain doubt” of their impartiality. So while perhaps a difficult argument, the obstacles are still pretty low. And it would only take one court case to, essentially, invalidate any arbitration agreement in a particular jurisdiction when the insurance carrier was solely responsible for appointing the arbiter.

Insurance Agents Potentially Responsible to Non-Clients

This article from Professional Liability Matters summarizes a recent court decision over an action brought by the Cleveland Indians baseball team against an insurance broker for what was essentially failure to provide adequate professional services. The funny part is, this broker was not a person placing coverage for the Cleveland Indians but rather was a broker who had merely added the Cleveland Indians as an Additional Insured to their own client’s policy.

Long story short is that the Cleveland Indians hired National Pastime Sports, LLC, an entertainment and games provider, to operate festivities before a game; these included an inflatable slide. National Pastime used an independent broker to secure General Liability coverage which included the Cleveland Indians as an “Additional Insured”. The broker did not secure inflatable coverage even though they were specifically told of the use of such beforehand.

Unfortunately, the inflatable slide collapsed and killed and attendee. The Cleveland Indians sought coverage under National Pastime’s policy as a Additional Insured but, as mentioned, there was no inflatable coverage so they were unable to collect. The Cleveland Indians brought suit against the broker which was upheld upon appeal. The court concluded that simply by virtue of being an Additional Insured on National Pastime’s policy, National Pastime’s broker owed them a certain level of care.

In short, this means that insurance professionals could owe a duty not only to their clients but (theoretically) any other named party on their client’s policies including Additional Insureds, Mortgagees, etc.

Without a Lexis Nexis account I can’t comment as to whether the duty owed to these additional interests is the same level of duty owed to direct clients. And, further, this particular case does seem to stand alone. However, we’ve all seen how liability and subsequent litigation always starts with a crack before the dam breaks.

Following along this path leads to further questions, such as what happens when you have an adversarial relationship between the client and an Additional Interest. For example, it’s (usually) in your client’s best interest to limit the scope of Additional Insured status, say by using a newer “Designated Person or Organization” endorsement which tends to be more restrictive**. Are you obligated to notify the Additional Insured that they could get more comprehensive Additional Insured coverage even though it would (1) cost your client more and (2) mean any losses impact your client’s history? While perhaps it’s a stretch to make that argument, it’s still plausible.

Note that Law 360 also states this case was denied for appeal.

NOTES:

* Mortgagee and Loss Payable status usually provide certain benefits not otherwise found in Loss Payee-type clauses. These include promise of notification should the policy cancel or non-renew, as well as the ability to retain coverage when it’s otherwise voided by the Named Insured, such as if the insured commits arson.

** Older endorsements (e.g. CG 20 10 11 85) don’t limit coverage to just ongoing operations, meaning the endorsement provides Products/Completed-Ops coverage. There are various other restrictions as well.