Category: BOP

Business Owners Package

Hired & Non-Owned Auto on the GL – A Problem

Let’s say you have an insured with multiple companies, all owning various assets or performing different operations. A classic example is a property owner who deeds each of her properties into a separate LLC. No problem here – simply write a separate General Liability/Package policy for each location with a Designated Premises/Project limitation. This happens all the time, especially in the world of real estate where a designated premises endorsement is sometimes mandatory. 

Like a good insurance broker you recommend Hired & Non-Owned Automobile to the insured. For ~$150 to add to a BOP, and slightly more to put it on a Package, it’s a no-brainer upgrade – everyone should have this coverage in place. 

But here’s the rub – most Hired & Non-Owned coverage is an endorsement that amends the underlying General Liability… which you’ve limited to Designated Premises or Projects. Meaning your Hired & Non-Owned Auto coverage likely only protects the insured from BI/PD arising out of the ownership, maintenance, use, etc. of the designated premises, or only those operations you specified. 

As long as you put Hired & Non-Owned Auto coverage on each policy though, maybe you’re safe? Probably not 100%. Let’s say you have an insured that owns various real estate under the name “Real Estate LLC”. There are 3 properties, each insured with separate carriers for price or coverage reasons and each with a policy that contains a Designated Premises Limitation. You’ve done your job and endorsed Hired & Non-Owned onto to all 3 policies. 

Now this client, via their “Real Estate LLC”, is about to purchase a 4th property. They drive over to meet the seller and cause a serious accident. Very arguably the injured party can say your client was driving for/on behalf of “Real Estate LLC” – after all Real Estate LLC was the one making the deal to purchase this property. Clearly this is a Hired/Non-Owned situation – a member of Real Estate LLC was using an auto that Real Estate LLC does not own in its business on its behalf. 

Now remember – we have three policies written in the name of “Real Estate, LLC”. But all have a Designated Premises Limitation which says in part: 

[We cover liability for] The ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises; 

While undefined, simply because an action is being conducted by a common owner doesn’t make that action “necessary or incidental” to any particular owned premises, otherwise this endorsement would be meaningless. So the question is – does looking at a new building, completely unrelated to your others, constitute “necessary or incidental” activities, as it relates to the other properties and their policies, thus triggering the General Liability coverage (and the Hired/Non-Owned endorsed thereto) under one or more? While ultimately a legal question, my answer would be an emphatic, “No.” 

There are solutions to this situation – write Hired/Non-Owned on a separate/standalone auto policy; this policy won’t be limited to the “Designated Premises” like the GL would be. Further, since a separate Hired/Non-Owned Auto policy would “follow the insured”, you wouldn’t need to endorse it on every policy that insured has – potentially saving money.

Granted, it can be difficult to find a carrier that will write standalone Hired & Non-Owned coverage, but it’s even more unlikely to be able to change or manuscript your GL coverage.

Granted, this is likely a small crack in coverage but it’s one to be aware of. It’s also more likely to affect “smaller” insureds who don’t have the clout – say a schedule of 50 properties – to be able to convince a carrier to offer exception. At the very least, though, even if you can’t find coverage you need to make your clients aware of the potential gap.

Additional Insureds: a Reference (Work in Progress)

As there are already tons of learning opportunities regarding Additional Insured status, this post will instead be a general reference – it already assumes you’re well versed in the world of Additional Insureds. The following notes are especially relevant to construction industry clients as these are the primary drivers of complex AI requests, in my experience.

Since this is a reference it will be updated periodically. I will initially start with the oft-used GL AI forms, found especially in the construction world, and then proceed to review other options and how different lines handle AI. Please excuse any inelegant formatting and such as I’m still debating on how best to organize.

General Liability:

  • CG 20 10 11 85 – the “OG”, first created after the CGL overhaul in 1985.
    • No limitation for Ongoing vs. Completed Ops
    • Has historically been litigated to provide *sole* coverage for the AI (i.e., not limited to vicarious only)
    • Technically out of use for ages but many, many carriers still offer it as market demand (via contracts) is high
    • Still contains “[work] for that additional insured” limitation (see later) which can cause havoc with improper blanket wording
  • CG 20 10 10 01 – Very similar to CG 20 10 11 85, except limited to ONGOING operations only.
  • CG 20 37 10 01 – Very similar to CG 20 10 11 85, except limited to COMPLETED operations only.
    The pair of CG 20 10 10 01 and CG 20 37 10 01 are functionally equivalent to the CG 20 10 11 85.
  • CG 20 10 07 04 & CG 20 37 07 04 – Uses the “10 01” language but adds the restriction that liability which triggers coverage for the AI must arise “in whole or in part” by your actions or those acting on your behalf.  I.e., removes “sole negligence” coverage for the AI.
  • CG 20 10 04 13 & CG 20 37 04 13 – Uses the “07 04” language but adds the further restrictions that coverage is only provided to the AI is permissible by law and, if the AI status/coverage is dictated by contract, only to the extent required by the contract. E.g., if your contract only requires $500K of AI coverage but you have a $1M policy/AI endorsement, the endorsement will be limited to the contractually obligated amount.
  • CG 20 10 12 19 & CG 20 37 12 19 – Functionally equivalent to the “04 13” versions but an administrative clarification was made – the “Limits of Insurance” verbiage was amended to remove the reference to the limits “shown on the Declarations”; rather the endorsement merely states the AI coverage will not increase available limits (rather than “will not increase the limits [shown on the declarations]”. This is in recognition of the fact that limits can be amended by endorsement and thus the “hard” reference to the declarations may be in error. I am not aware of a lawsuit that prompted this but if you know of one please send my way!

The above endorsements are strictly “Scheduled” AI forms – meaning their technical use is limited to name a single, explicit entity to whom AI coverage is given. However it’s very common to have endorsements with manuscripted “blanket” language – for example the schedule might read “All parties with whom you have an executed written agreement to provide Additional Insured Coverage” or similar.

This is usually not a problem – and often the preferred way of writing these endorsements since many contractual parties want to see specific endorsement numbers – but it definitely can be. This is because each of these endorsements, even the “11 85”, has a limitation that states, essentially, coverage is limited to operations performed for the named Additional Insured. Here is the relevant text from the CG 20 10 12 19, emphasis added:

[…] in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.

Note the explicit reference to both the Additional Insured (and location).  This means that if your blanket language is insufficient, you could be leaving out a LOT of coverage for a LOT of third parties.

This is primarily a concern when the blanket language references only parties with whom you have a direct contractual relationship (privity).  For example, in Westfield Insurance v. FCL Builders, Inc. the insured’s “Blanket” wording read:

“A. Section II — Who Is an Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such a person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.”

Reading that via the “four corners” analysis (as insurance courts are designed to do), the only entities to whom that “blanket” AI language applies are those with whom you have a contractual agreement that such person or organization be added as an Additional Insured.

However, contracts require multiple third parties to be named as AI all the time – and an insured signing the contract typically doesn’t have a direct contractual relationship with these parties (say an owner, or bank). Because of this, the above blanket AI wording is limiting – it does not apply to those third parties whom you were obligated to add as AI but with whom you do not have contractual privity.

Because of this you must, must, must negotiate the proper “blanket” wording for AI forms. Simply securing the 10/01 or 11/85 editions is not enough – you must ensure it responds properly to all those entities to whom your insured is obligating themselves.

This privity concern is also a huge issue when ISO attempted to provide a standard “automatic” AI status. Firstly, ISO released such endorsement only for Ongoing Operations, then while they did finally release one for Completed Ops as well both contained the privity issue, necessitating another set of endorsements (automatic status for other parties). When this post is updated in the future we will review those endorsements (CG 20 33, CG 20 38, CG 20 39, CG 20 40). The “TL;DR” of that is that the combination of those will imitate CG 20 10/20 37 12 19, but if you need “old” coverage you’re stuck with the above scheduled forms until the cows come home.

Money & Securities as Business Personal Property

Many package policies contain throw-in coverage that can be of significant value. For example, Employee Dishonesty. While it really should be a standalone coverage, and while every business should have it, most probably rely only on the enhancement available in their BOP or Package. 

Sometimes these enhancements can be significant, offering $25,000, $50,000 or more of coverage. While likely not enough to compensate for any significant embezzlement, it’s a lot more than $0. However, since non-ISO policies are just as common, if not more so, than their “standard” counterpart, you still have to pay attention to the wording of this coverage. The $25,000 of “Employee Dishonesty” on your policy could be almost useless. 

This is because of the way some non-standard policies read. First, an excerpt from the “Standard” employee dishonesty optional coverage from ISO’s “Businessowners Coverage Form” BP 00 03 01 10: 

We will pay for direct loss of or damage to Business Personal Property and “money” and “securities” resulting from dishonest acts committed by any of your employees acting alone or in collusion with other persons (except you or your partner)… 

Notice how it specifies three types of property: (1) Business Personal Property, (2) Money, and (3) Securities. 

There are some carriers that lump money and securities into Business Personal Property. Meaning that when they define “Business Personal Property” in the front of their policy they specifically include (instead of exclude) money and securities. This can cause an unintended gap with an insured that you would not otherwise know about. 

The reason is simple: because some carriers define  “money” as BPP, they often don’t need specify money as specifically covered under Employee Dishonesty extensions. Rather, the policy simply states it covers employee theft of “Business Personal Property” or “covered property”. The problem thus arises if someone doesn’t have BPP on their policy – consider a landlord, a Homeowners Association, etc. With this wording, if you don’t have BPP coverage then you don’t have theft of money covered because money is considered BPP. 

I don’t even think this is a “gotcha!” moment. I believe that when a carrier includes things like money/securities inside of BPP they’re actually trying to enhance their coverage. With money as BPP you may even enjoy some of the various extensions and enhancements usually reserved for just contents-type property (E.g. off-premises coverage). However, be aware of this potential unintended consequence when it comes to Employee Dishonesty coverage. 

This is another reason why you can’t rely on summaries and declarations listings of coverage and just assume. If you see a policy that has a $50,000 extension for “Employee Dishonesty” it could end up behaving much differently than you think, even for something as “Standard” as a BOP.