What is Additional Insured Coverage?

1. Additional Insureds: Coverage, Contracts, Endorsements and CertificatesJuly 12, 2018By Brandon G. HummelHummel Law Grouphummellawgroup.com(312) 599-2806

2. What is Additional Insured Coverage? • Risk transfer method that allows one party to a business relationship to obtain coverage under another party’s insurance policy

3. Who Are the Parties? • Additional Insured – the party seeking to take advantage of another party’s insurance coverage • Named Insured – the party whose insurance policy is providing coverage to the Additional Insured

4. Definition of Additional Insured • “A person or organization not automatically included as an insured under an insurance policy, but for whom insured status is arranged, usually by endorsement. …” Irmi Online - Glossary of Insurance and Risk Management Terms

5. Definition of Additional Insured Con’t • “A person or organization, other than the first named insured, identified as an insured in the policy declarations or an addendum to the policy declarations.” • “A person or organization added to a policy after the policy is written with the status of named insured. This entity would have the same rights and responsibilities as an entity named as an insured in the policy declarations….” Irmi Online - Glossary of Insurance and Risk Management Terms

6. Benefits for Additional Insured • Coverage without payment of premium • Doesn’t erode additional insured’s own limits of liability under its insurance policy or policies • No responsibility for deductibles • Particularly important for companies who are self-insured or who have retentions on their own policies

7. Benefits of Additional Insured Con’t • Supports contractual indemnity obligation, which only has value if the indemnitor has assets to fulfill it • Provides defense coverage to AI without having to wait for a resolution of the indemnity obligation • Can be independent of, and provide broader protection than, the indemnity obligation, i.e., for the additional insured’s own negligence • Can be important where applicable state law prohibits indemnification for one’s own negligence

8. Disadvantages for Additional Insured • No control over the defense. Significant where both the Named Insured and Additional Insured are sued. • Limits must be shared among all insureds which can sometimes result in little or no indemnity coverage • AI often has no business relationship with insurance carrier

9. Implications of AI Coverage for Named Insured Pros - - Allows transfer of the obligation to defend and indemnify the indemnitee to the insurer Cons – - Erosion of limits - Limits shared by all insureds - Limits used to pay claims for which the Additional Insured may be partly or entirely at fault - Responsibility for deductible - Higher premiums down the road based on loss experience

10. Relationships Giving Rise to AI Coverage • Construction – General contractor requires additional insured status on subcontractors’ policies • Vendor/Vendee – Vendor requires additional insured coverage on manufacturer’s policy • Service Agreement – Customer requires additional insured status on service provider’s policy. • Lease Agreement – Landlord/Lessor requires additional insured status on tenant’s/lessee’s policy.

11. How Does One Become AI? • Generally requires: • a contract between the parties • a provision in the parties’ contract requiring that the indemnitor name the indemnitee as an AI in its insurance policies and • an AI endorsement to the named insured’s insurance policy.

12. The Contract • An obligation to indemnify does not confer additional insured status on the indemnitee. • Key Questions:(1) Does the contract contain an insurance procurement provision? (2) Does that provision specify the type and amount of insurance coverage to be provided? • CGL, Umbrella? • Primary or Excess? • Limits?

13. The Insurance Policy • A contractual obligation to provide insurance is ineffective unless the Named Insured’s policy contains an Additional Insured Endorsement. • The underlying contract must be operative and in force for Blanket Endorsement to be effective. • The policy itself usually provides AI status via an endorsement.

14. Types of AI Endorsements • ISO endorsements and manuscript endorsements • Two varieties of AI endorsements: • Blanket additional insured endorsements: • grants additional insured status to categories of Additional Insureds or to those whom the Named Insured has a contractual obligation to insured. • Sometimes called automatic additional insureds. If the contract does not specifically require insurance, the endorsement is ineffective. • Scheduled additional endorsements - lists the name of the additional insured.

15. Verifying Additional Insured Coverage - A certificate of insurance is not proof of insurance. • The Acord form specifically states that additional insured coverage requires an endorsement. • The Acord specifically states that it is for information only and does not create insurance coverage. • Am. Safety Cas. Ins. Co. v. 385 Onderdonk Ave., LLC, (E.D.N.Y. 2017) (explaining "the certificate of insurance recited that it was 'a matter of information only and conferred no rights upon' the plaintiff," and so was "insufficient, by itself, to establish that the plaintiff was insured“).

16. Verifying Additional Insured Coverage Con’t • Ideally, request a full copy of the Named Insured’s insurance policy. • May not be that simple. • For some large companies, the extent of their insurance program, including limits and deductibles, is a closely guarded secret. • In that situation, review the additional insured endorsement(s) at a minimum. • Review the Other Insurance Clause, if possible. Has important implications for primary vs. excess insurance issues.

17. Additional Insured – Notice Obligation - A typical CGL policy will generally state that “you ” must give notice as soon as “practicable” of an occurrence that may result in a claim under the policy. - “You” must also give written notice of a claim or suit against any insured or suit against any insured.

18. Additional Insured – Notice Obligation Con’t - In Casualty Insurance Co. v. E.W. Corrigan Construction Co., Inc., 247 Ill. App. 3d 326 (Ill. App. Ct. 1993), the court rejected the carrier’s attempts to argue that notice to the workers’ compensation department is insufficient to provide adequate notice to the liability department for the same carrier. - “[I]f an insured notifies its insurer of an occurrence and references its workers references its workers’ compensation policy, it should be compensation policy, it should be considered notice in regards to any general liability policy the insured might have with the same insurer. Consequently, it should also be adequate notice to the insurer for an additional insured named on the general liability policy.” Id. at 333.

19. Additional Insured – Notice Obligation Con’t - In some jurisdictions, however, the additional insured must provide notice on its own behalf in a manner consistent with the policy’s specific terms and conditions.

20. Additional Insured – Notice Obligation Con’t - In Liberty Ins Underwriters Inc v Great American Ins Liberty Ins. Underwriters Inc. v. Great American Ins. Co., No. 09 Civ. 4912(DLC), 2010 WL 3629470 (S.D.N.Y. Sept. 17, 2010), the court determined an additional insured has an implied duty to provide its own notice to the insurance carrier even if the policy does not explicitly require separate notice by the additional insured or the insurer received actual notice of the claim from the named insured or a separate source.

21. Additional Insured – Notice Obligation Con’t • Why is this a problem? • In many cases, the only policy information an additional insured has is a Certificate of Insurance. • Even assuming it contains current policy information, it’s unlikely to contain the policy’s specific notice requirements.

22. Whose Coverage is Primary? - Formerly a hotly-disputed issue. - ISO attempted to resolve the dispute in the CGL policy itself. - The 2001 and later versions of the ISO CGL Policy (CG 00 01 10 01) contain an amended Other Insurance Clause (Section IV).

23. ISO Other Insurance Clause • States that the Named Insured’s policy is excess over any other policy on which “You” have been added as an additional insured by way of endorsement. • Issues still arise when the other party’s insurance purports to provide only excess coverage. • Issues also arise concerning whose policy pays after the limits of the policy providing additional insured coverage are exhausted. • Can revise language to make AI primary and non-contributory. In this situation, the underlying contract’s insurance procurement clause should say so. That’s what ISO 2013 Other Insurance clause attempts to do.

24. “Other Insurance Clause” 2013 ISO Amendments Primary And Noncontributory – Other Insurance Condition (CG 20 01 04 13): This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under your policy provided that: (1) The additional insured is a Named Insured under such other insurance; and (2) You have agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured.

25. Scope of AI Coverage • How broad is it? • Does it essentially back-stop the Named Insured’s contractual indemnity obligation? • Which clause appears first in the contract – indemnity or insurance? • Does it cover more than the Additional Insured would be able to recover under the Indemnity Agreement? • What if the indemnity agreement contains a monetary cap? • What if the insurance provision states that the Additional Insured will receive coverage in the minimum amount of $ ________ ?

26. Example of Broad AI Provision During the Lease term, Tenant shall, at its own expense, maintain in full force a policy or policies of commercial general liability insurance, including property damage that will insure Tenant property damage, that will insure Tenant and Landlord and such other persons, firms or corporations as are designated by Landlord, against liability for injury to persons and property occurring in or about the Premises. The liability under such insurance shall be not less than $2,000,000 for bodily injury and $100,000.00 for property damage.

27. Limiting a Broad Indemnity Provision • Where a potential indemnitor is being forced to agree to a broad indemnification obligation, it may seek to limit its exposure by requesting a broad indemnification from the other side mirroring its indemnification obligations. • Alternatively, a potential indemnitor may seek a qualifier demonstrating that it does not agree to indemnify the other party for losses clearly within its control for losses clearly within its control. • Examples of such qualifiers include: “except those losses caused by the sole negligence of the Client” or “except those losses caused by the gross neg gli ence or intentional acts of the Purchaser.”

28. Limiting a Broad Indemnity Provision Con’t • Example: • Service Provider shall defend (if requested by Client and with counsel approved by Client), indemnify and hold harmless Client, Client’s Affiliates and the officers, directors, agents, employees, shareholders, attorneys and assigns of each, from and against any and all claims, demands, suits, judgments, losses, liabilities, damages, costs or expenses of any nature whatsoever (including, without limitation, attorneys' fees, costs of litigation, consultants' fees, fines, penalties, settlements, or liens), caused by any: (i) negligent act or omission of Service Provider, its officers, directors, agents or employees; (ii) failure of Service Provider to perform the Services in accordance with generally accepted professional standards; or (iii) breach of Service Provider’s representations and warranties, agreements, duties or obligations as set forth in this Agreement.

29. Examples of Contractual Limitations on AI Coverage Examples: – • “The coverage provided to the additional insured shall not exceed, and is limited by, the scope of coverage and limits of liability the Named Insured has agreed by contract to procure for the additional insured.” • “Owner shall be included under Contractor’s insurance as an additional insured with respect to claims and/or liability arising out of Work performed for Owner by Contractor, but only to the extent of Contractor’s indemnity obligation in Section 13.b. herein. In no event shall Owner be an additional insured with respect to claims and/or liability 34 additional insured with respect to claims and/or liability that do not arise out of the sole negligence or other actionable fault of Contractor.”

30. Scope of AI Coverage Con’t • What if the indemnity agreement is unenforceable? • For example, an agreement that purports to indemnify the indemnitee for its own negligence? • In a state where such an agreement is void as against public policy? • Depends on the state.

31. Impact of Anti-Indemnity Statutes on AI Coverage • Recently some states (e.g., California Colorado Kansas) have enacted legislation prohibiting coverage for the additional insured’s own negligence where that negligence could not be transferred via an indemnity agreement. • In states where additional insured status is within the jurisdiction of the anti-indemnity statute, an additional insured’s coverage cannot be broader than its protection as an coverage cannot be broader than its protection as an indemnitee.

32. Coverage For AI’s Own Negligence • Prior to 2004, a number of ISO additional insured endorsements provided coverage for liability “arising out of” the Named Insured’s operations for the Additional Insured. • A number of courts construed “arising out of” to be the same as “but for” causation. • If the liability would not have arisen “but for” the named insured’s involvement, the additional insured has coverage.

33. Coverage for AI’s Own Negligence Con’t • Township of Springfield v. Ersek, 660 A.2d 672 (Pa. Commw. 1995) (township was as added to pro shop’s policy as additional “with respect to liability arising out of operations performed by” pro shop; policy covered damages for injuries to pro shop’s employee caused by township’s negligence because “arising out of” means causally connected with, not proximately caused by) • Aetna Cas. & Surety Guar. Corp. v. Ocean Acc. & Guarantee Corp., 386 F 2d 413 (3rd Cir. 1967) (coverage provided for injuries to named insured’s employee, caused by additional insured’s sole negligence, where the additional insured’s liability would not have arisen “but for” its engagement by or association with the named insured)

34. Coverage for AI’s Own Negligence Con’t • McIntosh v. Scottsdale Ins. Co., 992 F.2d 251 (10th Cir. 1993) (festival patron injured on fairgrounds brought suit against township/additional insured. Festival operator’s insurer obligated to cover township, even though township stipulated that it was 100% negligent, since injuries “arose out of” Festival’s operations) • Allen-Stevenson School v. Burlington Ins. Co., 2008 N.Y. Misc. LEXIS 10587 (N.Y. Sup. Ct. Mar. 31, 2008) (“The additional insured language…defines coverage…based on the scope of the named insured’s work. As long as the claim against the additional insured arises out of the named insured’s work, coverage is provided under the Endorsement.”)

35. Coverage for AI’s Own Negligence Con’t - Mid-Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487 (5th Cir. 2000) (finding that injuries to named insured’s employee “arose out of” named insured’s operations, even if the cause of the injuries was the sole negligence of the additional insured).

36. The 2004 Amendments to ISO’s Endorsements • In response to these cases, in 2004 ISO amended some of its most commonly-used additional insured endorsements to make clear that the additional insured’s sole negligence is not covered • Additional Insured only has coverage with respect to liability for BI or PD caused, in whole or in part, by the Named Insured’s conduct

37. Did ISO’s Amendment Resolve The Issue? • Maybe not… • In Fifth Circuit’s Gilbane decision, Admiral Insurance argued that since the complaint contained no allegations of negligence on the part of Empire (the Subcontractor/Named Insured), or anyone acting on its behalf, the General Contractor, Gilbane, was not covered as an additional insured. Gilbane Building Co. v. Empire Steel Erectors, L.P., 691 F. Supp. 2d 712 (S.D.Tex. 2010), aff’d in part, rev’d in part, 664 F. 3d 589 (5th Cir. 2011).

38. Did ISO’s Amendment Resolve The Issue Con’t? • The District Court in Gilbane had speculated that the named insured insured’s negligence had not been pled because of the statutory immunity of the Workers’ Compensation bar, but… • Concluded that the claimant’s negligence could be presumed and imputed to the named insured, thus triggering Admiral’s duty to defend.

39. Did ISO’s Amendment Resolve The Issue Con’t? • The Fifth Circuit reversed the District Court’s ruling on the duty to defend, finding that Parr’s negligence could not be presumed. District Court under Texas law had to strictly adhere to allegations of complaint and language of policy. • Applying the eight-corners rule, the Fifth Circuit concluded that Admiral was only obligated to defend the GC/additional insured “if the underlying pleadings allege[d] that Empire, or someone acting on its behalf, proximately caused Parr’s injuries.” 664 F.3d at 598.

40. Did ISO’s Amendment Resolve The Issue Con’t? • The Fifth Circuit affirmed the District Court’s finding that Admiral was required to indemnify the additional insured: • A co-worker’s recount of Parr’s statement, immediately after he fell, that his “‘feet got wrapped up in the extension cord’” was persuasive. 664 F.3d at 601. • For the indemnity determination, the District Court properly “consider[ed] facts outside of those alleged in the petition in determining the duty to indemnify.” Id.

41. Revised CG 20 10 Does Not Limit Coverage To Vicarious Liability - American Empire Surplus Lines Ins. Co. v. Crum & Forster Specialty Ins Co., No H.-06 -004 2006 004, 2006 U.S. Dist. LEXIS 33556 (S.D. Tex. May 23, 2006) (language of endorsement requiring that Additional Insured’s liability arise, in whole or in part, out of Named Insured’s conduct, does not limit coverage to vicarious liability, but provides coverage where both Named Insured and Additional Insured are negligent).

42. Revised CG 20 10 Does Not Limit Coverage To Vicarious Liability Con’t • Capital City Real Estate, LLC v. Certain Underwriters at Lloyd’s London, 788 F.3d 375 (4th Cir. 2015) (under Maryland law, additional insured endorsement (modeled after ISO 2004 form) did not restrict general contractor additional insured to protection for vicarious liability for named insured subcontractor’s acts and omissions, but provided coverage so long as named insured was partially at fault for the claims asserted against additional insured; unlikeTexas, Maryland law permits courts to make inferences and consider extrinsic evidence beyond the 8 corners rule when deciding duty to defend obligations owed to additional insureds).

43. Revised CG 20 10 Does Not Limit Coverage To Vicarious Liability Con’t • First Mercury Ins. Co. v. Shawmut Woodworking & Supply, Inc., 660 Fed. Appx. 30 (2nd Cir. 2016) (under Connecticut law, ISO 2004 additional insured endorsement protection not restricted to protecting against vicarious liability for acts and omissions of named insured; so long as named insured partially at fault for claim against additional insured, defense and indemnity coverage may apply) • Scottsdale Ins. Co. v. United Rentals (N. Am.), Inc., 2018 U.S. Dist. LEXIS 53982 (D. Mass. 2018) (Under Mass. Law, 2004 ISO additional insured endorsement not restricted to protecting against vicarious liability resulting from named insured’s acts and omissions)

44. Revised CG 20 10 Does Not Limit Coverage To Vicarious Liability Con’t • Ramara, Inc. v. Westfield Ins. Co., 298 F.R.D. 219 (E.D. Pa. 2014) (under Pennsylvania law, courts can infer a relationship giving rise to a potential duty to defend even where the complaint’s allegations do not specify the fault of the named insured; employer liability exclusion subject to separation of insureds endorsement which requires that an additional insured’s coverage must be analyzed separately from the named insured’s coverage) • Westfield Ins. Co. v. Nautilus Ins. Co., 154 F. Supp. 3d 259 (M.D.N.C. 2016) (similar rationale and result for ISO 2004 additional insured endorsement form under North Carolina law)

45. Tendering a Claim as an Additional Insured • Give prompt notice of any incident to the carrier on whose policy the client is an additional insured. • Request a copy of the entire policy, if necessary.

46. Tendering a Claim as an Additional Insured Con’t • Also put client’s own carrier on notice. • Advise the carrier that you have also tendered the claim to another carrier as an additional insured and that at the present time the notice is for informational purposes. • Check the notice provisions to be sure that this type of notice doesn’t violate the policy conditions. • This avoids a late notice defense by client’s own carrier in the event additional insured coverage is denied or the policy limits are insufficient.

47. Concluding Thoughts • Additional insured coverage may provide more – or less – coverage than the parties anticipated. • Review the actual insurance policy or the additional insured endorsements. • Review indemnity and insurance provisions before contracts are signed. • Consider any applicable legislation which may impact the additional insured’s right to coverage. • Caution the business units about signing contracts containing indemnity and/or additional insured clauses.

48. Questions? Brandon G. Hummel bhummel@hummellawgroup.comhummellawgroup.com(312) 599-2806