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    Thursday
    Nov152018

    Additional Insureds: What Coverage Do They Really Have?

    Most construction contracts require one party to name the other party as an additional insured under the first party's general liability insurance policy. For example, a contract between a project owner and the general contractor will require the GC to cover the owner as additional insured. A contract between a GC and a subcontractor will have a similar requirement in favor of the GC. By making this requirement, the owner or GC is attempting to transfer the liability insurance responsibility from itself to the other party. However, what the GC is trying to achieve and what it actually gets may not be the same.

    Many owners and subcontractors, when they require additional insured coverage, are seeking coverage that an obsolete insurance form used to provide. This form covered the person or organization listed on it for liability arising out of the policyholder's work for the person or organization. The industry has revised this form several times over the years. The current version covers the named person or organization for liability arising at least partly out of the policyholder’s acts or omissions or those of subcontractors working for the policyholder. It covers liability for the policyholder’s ongoing operations for the additional insured. Coverage ends when all work on the project is completed or the part the policyholder was working on is put to its intended use.

    The modern version has some significant differences from the old one. Courts interpreted the old version as covering the additional insured even when the accident was 100 percent its own fault. The new version requires the policyholder to be at least partly responsible. The old version covered liability arising out of the policyholder’s work, whenever it occurred. The new version covers liability arising out of the policyholder’s work only while it is in progress. It does not provide any coverage for liability arising out of the work once it is complete.

    Contractors who need or want coverage for additional insureds arising out of their completed operations must request a separate coverage form from the insurance company. Willingness to provide this coverage varies from one insurance company to another.

    Another option is to cover all additional insureds automatically. Many insurance companies offer this, but the form ordinarily applies only when a written contract requires the policyholder to add the additional insured. Also, it usually does not provide completed operations coverage for the additional insureds, and it may provide only the amount of coverage the contract requires even if the policy actually provides more. The contractor must request to add completed operations coverage separately for each additional insured.

    It is important to note that none of these forms promise to provide the additional insured with advance notice if the company decides to cancel the policy. Owners and GCs often require advance notice in the contract. If this is the case, the contractor should discuss it with his insurance agent and ask to have this provision added to the policy separately. Insurance companies’ willingness to do this varies.

    An owner or GC that requires its contractor to add it as an additional insured may expect or demand coverage for all operations, both ongoing and completed. They may also require advance notice of cancellation. It is crucial for contractors to be aware of what their policies do and do not provide. The contractor should discuss any coverage deficiencies with his agent as soon as he discovers them. If the insurance company is unwilling to remedy them, he may have to negotiate with the other party. The worst possible outcome is for the other party to be surprised by lack of coverage when an accident happens.

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