RISK TRANSFER SEMINAR

1. RISK TRANSFER SEMINAR YCPARMIA TRAINING 2006 Learn more about us at: www.ycparmia.com

2. The object of risk transfer is to shift potential risks to another party. PURPOSE

3. Risk Management Theory

4. Factors Affecting Contractual Risk Transfer Control of Risk Knowledge of Risk Legal Limitations on Risk Transfer Custom and Practice Bargaining Position Size Competitive Marketplace Reputation of the Parties

5. Key Contract Provisions Indemnity Clauses Liability Limitation and Exculpatory Provisions Waivers of Subrogation Insurance Requirements Assure the financial viability Provide a coordinated insurance program Fund a recovery of third party damages Support the indemnity provisions of the contract

6. Strategies for Transferring Riskto Others Observe Legal Limitations Back up Indemnity Provisions with Insurance Requirements Reasonable Flexible Update Requirements Additional Insured Status Shared Limits Completed Operations Coverage �Other Insurance�

7. Strategies for Transferring Riskto Others Verify Compliance with Insurance Requirements Certificates of Insurance Errors Notice of Cancellation � �endeavor�

8. INDEMNITY AGREEMENTS

9. Indemnity Agreement Hold Harmless and Indemnification are the same thing The indemnitor assumes the liability of the indemnitee Completely independent of insurance coverage The Agreement does not relieve the indemnitee of liability to the injured party Classified based on the scope of obligation

10. Indemnity Types4 = What is the �scope of the obligation?� Broad Form - transfers the entire risk = All claims arising from or in �connection with� �Should do so expressly and unequivocally so that the contracting party is advised in definite terms of liability to which it is exposed.� Cal. Civil Code 2782 prohibits transferring indemnitee�s sole negligence in construction or design contracts

11. Indemnity Types Intermediate Form Assumes all liabilities except those caused by indemnitee�s sole negligence Limited Form (or Comparative Fault) Obligates indemnitor only to extent of its own fault Hybrid Form Broad form for some risks and comparative for other risks

12. Sample Agreement #1 �Contractor shall indemnify, defend, and hold harmless entity and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the entity.�

13. Sample Agreement #1 Take out the indemnity statement: �Contractor shall indemnify, defend and hold harmless� �Contractor shall indemnify, defend, and hold harmless entity and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the entity.�

14. Sample Agreement #1 2. Take out the who: �entity and its officers, officials, employees and volunteers� �Contractor shall indemnify, defend, and hold harmless entity and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the entity.�

15. Sample Agreement #1 3. Take out the from what: �from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature� �Contractor shall indemnify, defend, and hold harmless entity and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the entity.�

16. Sample Agreement #1 4. Take out the from limitations: �except such loss or damage which was caused by the sole negligence or willful misconduct of the entity� �Contractor shall indemnify, defend, and hold harmless entity and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the entity.�

17. Sample Agreement #1 What is left is the scope: �arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement� �Contractor shall indemnify, defend, and hold harmless entity and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor�s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the entity.�

18. Sample Agreement #2 � To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from and (ii) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder��

19. Sample Agreement #2 Take out the indemnity statement: �To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless �To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from and (ii) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder��

20. Sample Agreement #2 2. Take out the who: �the Owner, and the Architect and their agents and employees� �To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from and (ii) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder��

21. Sample Agreement #2 Take out the from what: �from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees,� �To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from and (ii) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder��

22. Sample Agreement #2 4. Take out the limitations: �provided that any such claim, damage, loss or expense (i) is attributable to bodily injury� (ii) is caused in whole or in part by any negligent act or omission of the Contractor� regardless of whether or not it is caused in part by a party indemnified hereunder�� �employees from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from and (ii) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder��

23. Sample Agreement #2 What is left is the scope: �arising out of or resulting from the performance of the Work� �employees from and against all claims, damages, losses and expenses, including but not limited to attorneys� fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from and (ii) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder��

24. Indemnity Issues Does the injury or damage fall within the subject matter of the hold harmless clause? Arising from or arising under Arising out of the project Arising out of, incident to, or in connection with the agreement or the performance of the work or services hereunder� Arising out of or resulting from the performance by � Broad interpretation with a �but for� test Narrow interpretation of �clear and unequivocal� (CA)

25. Indemnity Issues Indemnity Clauses Scope Subject Matter DURATION When a contract terminates the clauses within also terminate Absent clear and unequivocal language Contrast Additional Insured Status under the insurance policy

26. Waivers Of Subrogation

27. Waivers of Subrogation Doctrine of Subrogation allows a party who has paid a loss or debt on the part of another, to succeed to the rights of that other party to pursue recovery from a third party, who was responsible for causing the loss.

28. Waivers of SubrogationInsurance Insurance payments; LC 3852 re: Workers� Comp Helps reduce insurance costs/premiums Can be reduced by comparative against employer Limited to the rights of the insured � Waiving the right to recover Allocation of recoveries- who gets paid first? Insured cannot prejudice the subrogation rights of the insurer Post-loss vs. pre-loss waivers WC double recover with waiver of subrogation Subrogation is not waived; the derivative right is Most policies allow a pre-loss waiver; but examine the policy Endorsing a waiver of recovery may cause additional premium Generally an insurer cannot subrogate against its insured, nor its additional insured

29. Contractual Liability Coverage

30. INSURANCE: THE MONEY BEHIND THE PROMISE Contractual Liability Coverage

31. ISO forms and edition dates Manuscript and non-ISO forms Contractual Liability Coverage (Standard Forms)

32. Commercial General Liability Policy (CGL) Automatically provides insureds with �broad form blanket contractual liability coverage� Insuring Agreement � We will pay those sums that the insured becomes legally obligated to pay as damages because of �bodily injury� or �property damage� to which the insurance applies. We will have the right and duty to defend the insured against any �suit� seeking those damages. However, we will have no duty to defend the insured against any �suit� seeking damages for �bodily injury� or �property damage to which this insurance does not apply. We may at our discretion investigate any �occurrence� and settle any claim or �suit� that may result. Contractual Liability Coverage (Standard Forms)

33. Contract Exclusion � This insurance does not apply to� �Bodily Injury� or �property damage� for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) that the insured would have in the absence of the contract or agreement; or (2) assumed in a contract or agreement that is an �insured contract�, provided the �bodily injury� or �property damage� occurs subsequent to the execution of the contract or agreement. Contractual Liability Coverage (Standard Forms)

34. Insured Contract Definition � �Insured Contract� means: A contract for a lease of premises� A sidetrack agreement Any easement or license agreement� An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality An elevator maintenance agreement Contractual Liability Coverage (Standard Forms)

35. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for �BI� or �PD� to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Does not include that part of any contract or agreement: That indemnifies a railroad�arising out of construction�within 50 feet of any roadbed� That indemnifies an architect, engineer or surveyor arising out of�preparing plans, maps� Under which the insured, if an architect, engineer, or surveyor� Contractual Liability Coverage (Standard Forms)

36. Business Auto Policy (BAP) For our purposes: coverage comparable to the CGL An insured contract includes a car rental agreement, but excludes paying for damage to the rented vehicle Does not cover a vehicle leased �with a driver� Contractual Liability Coverage (Standard Forms)

37. Umbrella and Excess Policies Language varies among insurers Coverage for contracts has traditionally been very broad Contractual Liability Coverage (Standard Forms)

38. �Professional Liability Policies CGL policies generally exclude professional services Language varies among insurers and types of professionals Coverage for assumption of another�s professional liability is usually limited to the same kind for which the insured is covered Contract exclusion might limit coverage to acts of the insured CGL is needed for non-professional indemnity agreements Contractual Liability Coverage (Standard Forms)

39. Pollution Liability Insurance (CPL) CGL usually excludes coverage Written on a scheduled project basis Has contract exclusion subject to exceptions for �covered contracts� Indemnity agreement between the named insured contractor and the client is a �covered contract� Some require a schedule of indemnity agreements Contractual Liability Coverage (Standard Forms)

40. ADDITIONAL INSURED

41. Require the indemnitor to obtain coverage against the loss on behalf of the indemnitee Or arrange for its own insurance coverage to be modified to cover the indemnitee Declaration Page Named insureds More stringent occurrence reporting requirements Employees, executive officers and directors are insured Certain exclusions only apply to the named insured Must pay the deductible Must pay the premium May cancel the policy Only the �first� named insured receives the cancellation notice Other persons who qualify as insureds based on their relationship with the named insured Other entities may be added as insureds by means of endorsement Additional Insured

42. Problems with the Hold Harmless Chevron USA v Bragg Crane (Cal App) � while there is a limit to the amount of risk that can be transferred under an indemnity contract, there is no such limit on obtaining insurance Note: scope of coverage will not always match up with indemnity agreement- Additional insured status is not an alternative Direct right of defense Subrogation- generally an insurer cannot subrogate against its insured Protection maybe limited so consider a waiver of subrogation Personal injury coverage is added only if indemnitee is an insured Obtaining coverage not otherwise available (ex. Malpractice) Unenforceable indemnity agreement Reasons To RequireAdditional Insured Status

43. Interplay between the indemnitee�s CGL and the Indemnitor�s CGL (additional insured) Standard pre-1997 CGL coverage is primary but contributory Current CGL: excess over any other primary insurance for which you have been added as an additional insured by �attachment of endorsement� �Primary and non-contributory� endorsement Breach of contract on primary issue Umbrella policies are not standard forms �Other Insurance� - CGL

44. Losses that arise after the work has been completed and accepted Pre-1993 additional insured endorsements included completed operations coverage- arising out of �your work� Post-1993 additional insured endorsements limit coverage to �liability arising out of your ongoing operations� Completed Operations

45. CG 20 10 � Owners, Lessees or Contractors Most widely used �Arising out of� CG 20 09 � Owners, Lessees or Contractors Attached to policies that do not provide contractual liability coverage Covers vicarious liability and general supervision CG 20 11 � Managers or Lessors of Premises Coverage ends when no longer a tenant Only that part of the premises leased to you CG 20 12 � State or Political Subdivisions�Permits CG 20 33 � Owners, Lessees or Contractors�Automatic Status When Required in Construction Agreement Does not have to be issued naming the specific party Limited to the time during which operations are actually being performed CG 20 07 � Engineers, Architects or Surveyors: excludes professional liability Endorsements

46. Umbrella policy will usually follow underlying policy No endorsement, but handled in the policy Cancellation Notice Policy only requires notice to the �first named insured� California Insurance Code section 677.2(b) ��named insured at the mailing address shown on the policy�� Endorsements

47. Vicarious Auto Liability extended in the �who is an insured� section by covering anyone liable for the conduct of an insured CA 20 48 � Designated Insured Endorsement- restates �who is an insured� Additional InsuredAuto Liability

48. Requires an insurable interest in the insured property Loss payee No standard additional insured form The main advantage would be to cut off subrogation liens Builder�s Risk�shifting interests and no subrogation Additional InsuredCommercial Property

49. Generally cannot be named as an additional insured Organization may be responsible if contractor fails to purchase Require the contractor to have coverage Subrogation Require the contractor to name you on the CGL Hold-harmless clause A waiver of subrogation (does not protect against an employee action) Additional InsuredWorkers� Compensation

50. Injured employee collects on workers comp from employer, then Sues a third party contributing to the injury; The third party tenders back to the employer under an indemnity contract/additional insured provision Additional InsuredThird-Party-Over Action

51. AN ALTERNATIVE TO ADDITIONAL INSURED Owners and Contractors Protective Liability Insurance (OCP) Contractor purchases insurance directly on behalf of the project owner �Arising out� of operations and general supervision are covered Narrow coverage ends with project-no completed operations CGL type exclusions Contractor who purchases policy is not insured by it Coverage is primary Subrogation against the purchasing contractor is allowed absent a waiver Costs more than additional insured status Protective Liability Insurance

52. Construction Project Management Protective Liability Similar to the OCP, but adds the architect, engineer or surveyor along with the construction manager Professional services exclusion Automatic waiver of subrogation Protective Liability Insurance

53. INSURANCE FORMS

54. Insurance Services Office (ISO) Dominant position with nearly 3000 insurance company customers Insurers can develop their own forms/manuscript forms Use of these standardized forms has the advantages of prior legal interpretations, similarity for statistical data, and price comparison Insurance Forms

55. Form numbering and addition dates Example: CG 20 10 03 97 CG: commercial general liability form 20: indicates the category (additional insured) of endorsement 10: the unique number assigned to this endorsement 03 97: indicates the March 1997 edition of CG 20 10 Insurance Forms

56. Commercial General Liability (CG 00 01) = CGL Covers BI, PD, Personal and advertising injury Insured premises and operations in progress, products and completed operations, contractual assumption of liability Occurrence or claims made (rare) Per occurrence limits and aggregate limits Per-project and per location general aggregate endorsements Exclusions � WC, Auto, EPL, Pollution, E&O Types Of Insurance

57. Business Auto Coverage Form (CA 00 01) Covers BI, PD and Physical Damage for �any auto� Subject to an �each accident� single limit- no aggregate Coverage for �insured contract� Severability of interests clause Exclusions Types Of Insurance

58. Workers� Compensation (W 00 00 01) Covers statutory benefits, employer liability, other states coverage Policy limits are subject to sublimits for employer liability �Additional insured� status is generally not available Types Of Insurance

59. Commercial Property (CP 00 01) Physical damage to buildings and contents Named perils or all risk coverage ACV or replacement coverage Coinsurance clause Types Of Insurance

60. Environmental Impairment Liability � no set forms Pollution Legal Liability Covers liability for the release of pollutants from specified locations and includes clean up costs Claims-made form Contractors Pollution Legal Liability Specialized version of PLL for contractors Specific project or blanket Claims made Environmental Professional Liability E&O Coverage for professionals Types Of Insurance

61. Professional Liability E&O Malpractice Failure to use due care and the degree of skill expected of a person in the same profession Occurrence but usually claims made Types Of Insurance

62. INSURANCE REQUIREMENTS

63. Insurance operates independently of the indemnity agreement Do not reference insurance in the indemnity agreement Reflect agencies risk philosophy concerning the degree of protection Be sensitive to the insurance market Modifications to standard policies or modifications to existing insurance program causes problems, additional cost (that is buried and passed on) and delays Insurance Requirements

64. Evidence of Insurance � should be required Certificate Certificate with amendments and attachments Copy of the policy Reserve the right if dispute later arises Include punitive measure if not provided General Provisions

65. Notice of Cancellation � needed to encourage replacement coverage Standard certificates do not require notice to holders Insurer will �endeavor to� provide 30 days advance notice Insurers might modify time A requirement of notice is refused by most insurers General Provisions

66. Deductibles and Retentions � less is best Require the amount be declared and subject to prior approval Judge how much your contractor can afford Allocate responsibility for paying to the insurance purchaser Consistent with the indemnity agreement Self-Insurance � is it insurance? Need to evaluate a self-insurance program to determine if it will meet its obligations �Other Insurance� is not self-insurance in California General Provisions

67. A.M. Best A VII or better Insurance Company Ratings

68. A++ and A+ Superior A and A- Excellent B++ and B+ Very Good B and B- Fair C++ and C+ Marginal C and C- Weak D Poor E Under regulatory supervision F In liquidation S Rating suspended NR 1-5 Not rated due to insufficient info or request Insurance Company Ratings

69. Financial Size � Reserves in millions of dollars XV greater than 2000 XIV 1500 to 2000 XIII 1250 to 1500 XII 1000 to 1250 XI 750 to 1000 X 500 to 750 IX 250 to 500 VIII 100 to 250 VII 50 to 100 Insurance Company RatingsVII or Better

70. Limits of Liability Set agency guidelines for minimum levels/not exact amounts Each contract can be reviewed looking at the following factors: Prevailing practices in the industry The size of the business providing the service The current insurance market place The type of service being provided The risk Limits Of Liability

71. Example: Shropshire v. Walnut Creek decided 5/5/03 City pool rented for last 15 years to Diablo Divers and the WC Aquanuts with no division between the two activities Indemnity agreement in favor of the city backed by each with a $5M policy 15 yr old swimmer pushed off from wall and was hit by a diver off of the 3 meter board � quadriplegic Divers and Aquanuts settled prior to trial for $4m leaving $6M for the city Jury verdict $27,750,000 with 60% to the city for a dangerous condition: net exposure to the city $20,759,925. Limits Of Liability

72. INSURANCE CERTIFICATES

73. Certificate holder vs. Additional Insured Standard certificate is the ACORD form Insurance Certificates

74. Standard Certificate

75. Manuscript certificate Certificate holders right to notice of cancellation �Endeavor to� and �but failure to do so�� Conflicts between the certificate and actual coverage Disclaimer: �This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below.� Insurance Certificates

76. Insurance Certificates Underlying contract insurance requirements Disclaimer: �The policies of insurance listed below have been issued�notwithstanding any requirement, term or condition of any contract�� Certificate Tracking Verify the required coverages are in force Monitor ongoing compliance

77. YOLO COUNTY CONTRACTS

78. Yolo ContractsPurchase Order Purchase Order Condition #16: The vendor agrees to defend, indemnify, and hold harmless the County of Yolo, its officers, employees, agents and servants, for any and all liability caused by the negligence or wrongful act of the vendor arising out of the performance of this agreement, or any act of omission of vendor, its agents, employees and servants, or for product liability or breach or warranty by vendor, either expressed or implied, and to pay all claims, damages, judgments, legal costs, adjuster fees and attorney fees related thereto.

79. Yolo ContractsShort-Form Agreement Short-Form Agreement Term #5: CONTRACTOR, at his sole cost and expense, shall obtain and maintain throughout the entire term of this contract, the insurance set forth in Exhibit A attached hereto. Term #6: CONTRACTOR shall defend, indemnify, and hold harmless the COUNTY, its officers, officials, employees and agents from any and all claims, demands, liability, damages, cost or expenses (including but not limited to attorney fees) in law or equity that may at any time arise or be asserted based in whole or in part upon any negligent or other wrongful act or omission of the CONTRACTOR, it�s officers, agents, or employees.

80. Yolo ContractsShort-Form Agreement

81. Yolo ContractsShort-Form Agreement

82. Yolo Contracts�Long-Form� Contract

83. Yolo Contracts�Long-Form� Contract

84. Yolo Contracts�Long-Form� Contract

85. Yolo Contracts�Long-Form� Contract

86. Q & A