Imagine you are a widget manufacturer reviewing your insurance program for potential liabilities. You or your product causing bodily injury or property damage to a third party is an obvious exposure that is commonly covered by your standard General Liability (GL) and Product Recall policies. However, the General Liability and Recall policies are missing something important. What if there are financial damages to a third party caused by neither bodily injury nor property damage?
U.S. manufacturing is growing: according to the Bureau of Economic Analysis, the manufacturing industry contributed to just over 12% of the U.S. economy in 2015. In terms of gross output, that amounted to around $6.2B of the country’s overall GDP. This figure is expected to increase with the new administration’s emphasis on spurring domestic production and anticipated incentives for businesses to keep operations stateside. A few notable companies have already considered growing their domestic manufacturing, including Ford, Carrier, and Apple. When large manufacturers increase their output, there are a host of supporting smaller component manufacturers that will also see their business grow. While new growth in production and sales is a positive development for businesses, it may also open the door to an elevated and often misunderstood risk; risk that can be transferred through the use of insurance. Structuring a comprehensive insurance program for a manufacturer includes General Liability, Product Recall, and other, often overlooked coverage, like Manufacturer’s E&O.
Brief breakdown of apparent coverage considerations:
Bottom line: With no bodily injury or property damage trigger, there is no coverage under the GL or product liability form for a third party financial loss related to the manufacture or design of a product.
Manufacturer’s E&O responds to the financial damages an insured is legally obligated to pay a third party (often a client or an end user) due to negligence in the design or manufacturing of their own product – regardless of a property damage or bodily injury trigger.
While a few carriers will tailor their traditional E&O forms for manufacturers, we’ve seen an increasing trend of dedicated Manufacturer’s E&O forms within the marketplace. Key elements of Manufacturer’s E&O may include coverage for the following activities: design, development, manufacturing, selling/reselling, installation, consulting, plan specification, labeling, packing, and instructions for use and maintenance of products.
Some insurers may extend coverage to encompass additional coverage items outside the professional liability exposure. Such insuring agreements may include product recall, replacement costs, pollution liability, regulatory liability, and even cyber liability. Generally, these additions come at an additional premium, but there is added value in a form that can comprehensively address the various liabilities faced by manufacturers.
A manufacturing or design error may also lead to a claim alleging breach of contract by the manufacturer. Many policies have a breach of contract exclusion. Policies often do not include allegations of breach of contract within the definition of claim, which is a material risk that needs to be addressed in a properly structured policy.
As discussed, there are a variety of liability exposures that manufacturers face, many of which aren’t addressed by a traditional E&O policy. While the form can be modified to suit the manufacturing exposures, there are some points where the offerings may differ, such as:
The following are a few fictional scenarios to help illustrate various E&O exposures for a manufacturer:
Given the dynamic yet relatively limited marketplace for Manufacturer’s E&O, insurance agents and brokers need to be aware of emerging coverage enhancements, as well as new players in the market. AmWINS has that needed expertise and market access. AmWINS has both a Professional Liability and Manufacturing/Distribution industry practice, with brokers able to assist with this line of coverage. In addition to the expertise and market access, AmWINS offers an exclusive Manufacturer’s E&O product from Lloyds of London. Please contact us to help round out your manufacturing clients’ insurance programs with this essential coverage.
This article was authored by Megan North and Charles Grodecki, members of AmWINS’ national Professional Lines Practice.
Legal Disclaimer. Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Discussion of insurance policy language is descriptive only. Every policy has different policy language. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. Please refer to your policy for the actual language.
(c) 2017 AmWINS Group, Inc.