Contractors Alert: Your Liability Carrier May Start Playing Rough

If you are a General Contractor (GC), you most assuredly carry Comprehensive General Liability insurance for your business. If you’ve spent any time reading your policy (fat chance), you may remember that the terms and conditions of the policy require you to protect yourself and your insurer.

Specifically, when you hire sub-contractors, you are supposed to require that the “sub” execute a Hold Harmless agreement as part of the contract, in which the sub agrees to protect the general contractor from liability for acts of which the sub is found legally liable. Further, the sub is supposed to name the general contactor as an Additional Named Insured, which provides a legal defense to the GC. At that point, the GC’s policy becomes excess over the sub’s coverage.

I used to be a General Contractor, and I know GCs pretty well. They, being a somewhat independent bunch, frequently do business with subs on little more than a handshake or a phone call. These subs are people they’ve used repeatedly, and a high level of trust is in place. The idea of getting all that contract paperwork executed before the first hammer is lifted or spade turned is just a pain in the backside. So, it regularly gets ignored.

Unfortunately for GCs, the insurance companies have been taking it in the wallet as they have absorbed liability for the GCs when they fail to get that Hold Harmless in place. So, the risk management efforts that the GCs are supposed to do aren’t getting done. And that has the affect of transferring the risk to the insurance companies.

They get to pay when the GC’s contract fails to contain a Hold Harmless Clause.

They get to pay when the GC doesn’t require his subs to maintain their own insurance.

They get to pay when the GC doesn’t get himself listed as an Additional Named Insured on the sub’s policy.

So, the insurance companies have begun to issue policy endorsements that deny coverage when there is a loss due to the sub’s operations and the GC did not get the Hold Harmless Clause into his contract and proof that the sub named the GC as an Additional Insured. The insurers are figuring that the only way to get the attention of the General Contractors is to put some of the GCs’ assets on the table.

On August 4, 2009, the California Court of Appeals issued the ruling in North American Capacity Ins. Co. v. Claremont Liability Insurance Company. The ruling upheld this Contractors Warranty Endorsement, and stated that the insurance company could take an excess position even if the subcontractor had no insurance, simply because it was their duty to have insurance. Therefore, the endorsement and coverage could proceed AS THOUGH the subcontractor had the coverage in place.

To quote the ruling:

“We find the “clear and explicit” meaning of the contractors warranty endorsements, as used in their “ordinary and popular sense” by a layperson establishes a precondition of coverage as to work done by subcontractors for whom (the GC) failed to secure both a written hold harmless agreement and a certificate of insurance. The trial court therefore did not err in finding the contractors warranty endorsement enforceable under the facts of this case.”

Now that the insurance companies have a favorable court decision in their back pockets, you should expect your insurance carrier to play for keeps. A potential liability claim denial will bring a new discipline to the business life of the General Contractor.

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