Review Insurance Procurement Provisions
Many agreements put a sub-contractor in breach of contract when they fail to procure the proper insurance. Below are several issues we would review in regard to the insurance procurement requirements:
- Insured/Carrier Named an Interested Party – We would propose having the Agreement require sub-contractors to name the insured and carrier as interested parties on their insurance, requiring notification of any changes to their coverage (cancellation, reduction in limits, non-renewal).
- Additional Insured Endorsement – There are several approved additional insured endorsements ranging from broad (“arising out of, or in anyway relating to, your work“) to narrow (“to the extent the additional insured may be held liable for your negligence”). The scope of additional insured status is often a key issue in whether a sub-contractor’s carrier agrees to defend an additional insured in the first instance, or instead awaits resolution of the underlying litigation.
- Endorsements Limiting Coverage– We would require confirmation that the policies procured by sub-contractors do not contain endorsements that potentially limit coverage, including:
– Designated Project Limitation
– Classification Limitation (i.e., covering only particular types of work)
– Amendments to Pollution Exclusion (broadening from “at or from” exclusion to “total” exclusion
- Other Insurance Provisions (Primary v. Excess) – In light of evolving law on this issue, we would seek to require that the sub-contractor’s policy specifically provide that it is primary to any insurance issued to any additional insured. Conversely, we would advise that the policy issued to the general contractor provide that it is excess of any insurance naming the general contractor as an additional insured (by endorsement or otherwise). Tightly worded “other insurance language” can avoid the need for unnecessary and costly coverage litigation.
- Review Insurance Claim Notification Provisions – As you may be aware Ins. Code §3420(d) was recently amended to prevent “no prejudice” disclaimers based upon late notice, effective January 17, 2009 (i.e., for all policies issued in New York after that date). However, we would propose that the Agreement require sub-contractors to copy the insured (and potentially, the carrier) on all claim correspondence with their carriers.