Exposures for Construction Owners


Don't Fall Into The Hole: Potential Insurance Exposures for Construction Owners

As always with construction projects, it is important that owners of new developments understand insurance coverage to ensure that there is adequate insurance to address any potential risks during and after the construction of the project. While most owners maintain commercial general liability policies or rely on project-specific policies, these policies may not fully protect the owner against any and all risks that they may face during and after construction. This article addresses two unique areas in which owners should take special note to ensure that they are covered for these particular risks: third party action over claims and products-completed operations coverage.

Third Party Action Over Claims

Owner contracts with Roofer to assist in the construction of the roof of a commercial building. During construction, Roofer’s employee falls and injures himself on the project site and collects workers’ compensation benefits under Roofer’s workers’ compensation policy. Typically, Owner would not consider any risks with respect to this injury as Owner required Roofer, in the subcontract, to maintain workers’ compensation insurance. However, despite receiving workers’ compensation benefits, Roofer’s employee files an action against Owner alleging negligence for failing to properly maintain a safe work site.

The action filed by Roofer’s employee is considered a third party action over claim. The employee is unable to sue Roofer because workers’ compensation is the employee’s exclusive remedy against his or her employer. Thus, the injured employee brings an action against Owner alleging that Owner’s negligence in failing to maintain the project site contributed to the employee’s injuries.

The standard ISO Commercial General Liability policy contains exclusions for bodily injuries arising out or and in the course of employment. The exclusion typically reads as follows:

“Bodily Injury” to:

1.  An “employee” of the insured arising out of an in the course of:

1)  Employment by the insured; or

2)  Performance duties related to the conduct of the insured’s business; or

2.  The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph (1) above.
This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury.
This exclusion does not apply to liability assumed by the insured under an “insured contract”.

In this case, the owner would look to the subcontract and indemnity language in the subcontract that requires the subcontractor to defend and indemnify the owner – thus transferring the risk back to the employer/subcontractor. However, the anti-indemnity statutes in many states prohibit indemnity provisions that require an indemnitor (Roofer) to indemnify the indemnitee (Owner) for the indemnitee’s own negligence or misconduct. Thus, the risk remains with the owner where the indemnity provision is not valid under the law.

What owners should also be aware of is that standard Commercial General Liability (“CGL”) policies often contain an action over exclusion endorsement. In these instances, the sentence, “This exclusion does not apply to liability assumed by the insured under an ‘insured contract’.” is often removed and as such, no coverage is afforded under the exclusion.
In New York, labor statutes  provide for the “absolute liability” of third parties, including property owners, for elevation-related injuries where the employee is engaged in construction work. Given that action over claims are common in New York, many carriers have included exclusions that preclude coverage for these action over claims.

Overall, when owners are negotiating indemnification clauses with contractor entities, owners should be aware of the extent to which the law allows indemnification for the owner’s own negligence. A carefully drafted indemnification provision can be helpful in transferring risks that arise from injuries on the project site. Owners should also ensure that insurance policies they obtain for the project provide coverage for third party claims made against the owner for negligence in maintaining the project site and do not specifically contain an action over exclusion.

Products-Completed Operations Coverage

Consider the following scenario: Randy Roofer was hired by Owner X to install the roof for an apartment complex. Randy Roofer has maintained his own CGL policy with products-completed operations coverage. Randy Roofer retires five years later and cancels his policy. Within a year of his retirement, the roof collapses and injures a resident. Coverage is not afforded to Randy Roofer or Owner X under Randy’s prior policy as the policy requires bodily injury or property damage to occur during the policy period. In a nutshell, the policy must be in effect for coverage to be afforded. Here, Owner X has exposure if he relied on Randy Roofer to maintain insurance and name Owner X as an additional insured.

For project-specific policies, including Owner’s Interest only policies, whether owner controlled (“OCIP”) or contractor controlled (“CCIP”), full coverage is often provided during the course of construction and then limited to products-completed operations coverage for a specified period of time after construction is completed. This can be a period of 36 to 120 months depending on multiple factors with consideration of the statue of repose. In California, where the statute of repose is ten (10) years for latent defects, 120 months following the completion of construction does not adequately cover the owner for claims that may arise of the work done on the project by the subcontractors. The failure to ensure that a policy provides products and completed operations coverage for the entire period covering a state’s specific statute of repose can create an extreme risk to the owner and leave him or her with little protection. Thus, owners should insure through their own general liability policy, or as an additional insured under another policy, that coverage is afforded for any claims arising out of the construction of the project even after it is complete.

If a premises liability claim for bodily injury arises after construction is complete, the contractors under an OCIP would be covered for liability arising from the construction of the project. Interestingly, the owner of the project would have a gap in coverage if the products-completed operations hazard provides that the policy only covers each of the named insureds for damages caused by completed work, “away from premises that the Named Insured owns or rents.” Thus, in certain circumstances where the owner maintains the property after construction, the owner will not be protected by the products-completed operations coverage.

Project owners must take heed of the unique risks that are faced by an owner and not covered by an indemnity provision or through insurance carried by the general contractor or its subcontractors. While most of the risk is with contractors, there are situations in which the owner is subject to liability. Thus, owners should consider the unique risks discussed in this article as well as others, and ensure that they maintain their own liability coverage rather than relying solely on indemnity provisions or insurance coverage afforded under an OCIP or CCIP or through an additional insured endorsement.

About the Author
Grace A. Nguyen is a Senior Counsel at Chapman Glucksman Dean Roeb & Barger which has offices throughout California. Ms. Nguyen specializes in complex multi-party litigation, including construction and real estate claims, environmental, employment, professional liability, commercial, business and catastrophic casualty litigation. In 2016 Ms. Nguyen was selected as a Super Lawyers Southern California “Rising Star,” for her demonstration of excellence in the practice of law, which is an honor limited to less than 2.5 percent of California attorneys.

Contact Us

To learn more about how AmWINS can help you place coverage for your clients, reach out to your local AmWINS broker.  If you do not have a contact at AmWINS, please click here.

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.

Most Popular Insights

State of the Market - Q2 2020


Our Q2 2020 State of the Market report provides a holistic view of highly impacted industry segments as well as overall market trends. This report is designed to help our retailers gain the knowledge they need to retain accounts, write new business, overcome challenges and capitalize on opportunities that do exist.

On-Demand Webinar: COVID-19 Economic Impact and Future Outlook


As a result of the COVID-19 crisis, our industry is facing a broad array of challenges that impact insureds of every size and in every industry. In the first of a series of webinars, we hear from an economist on the financial impacts of COVID-19 and what we can expect in the future. This webinar is intended to complement your conversations with clients about how to plan for the next 12 to 24 months.

Insurance Impacts of COVID-19 on the Healthcare and Senior Living Industry


As the healthcare industry remains on the front lines of battling the COVID-19 pandemic, staying abreast of the changing landscape and how the insurance market is adapting is critical to ensure new exposures are covered and renewals are successfully placed. In this article, our specialists share what they are seeing in the Healthcare and Senior Care markets, tips for risk control and mitigation, and how to get the best results for insureds.

COVID-19 – Are Your Clients Covered?


The disruption to business and everyday life caused by the coronavirus (COVID-19) pandemic is resulting in an economic impact for insureds. Much of this disruption is likely not covered by insurance. We have consulted with several AmWINS insurance specialists across the Property, Casualty and Professional Lines sectors and offer a COVID-19 update.

How Parametric Products Benefit Catastrophe-Driven Risk Transfer


Parametric insurance is an innovative product that functions differently than traditional insurance by covering the impacts of an event and not just losses sustained to an asset. Proceeds of the policy are paid quickly and can be used flexibly to cover any expense associated with the triggering event. Coverages can be designed to capture the impacts of natural perils and other forms of non-damage business interruptions such as future epidemics. Learn how the parametric landscape has and will continue to play a major role in improving coverage and the recovery experience.

From Seed to Sale: The Top 5 Issues Impacting the Cannabis Insurance Industry


​Over the last few years, the legal cannabis industry has seen rapid growth and had a significant impact on the U.S. economy. With states continuing to legalize its use, insurance needs for cannabis-related businesses are becoming a popular topic of discussion. This article examines the evolving cannabis industry by exploring five key issues impacting coverage.

Four Key Additional Insured Endorsements for Contractors

Construction contract negotiations, which determine the kind and amount of insurance required for a construction project, can be time-consuming, complicated and frustrating. Project owners require contractors on a project to name the project owner as an additional insured on the contractor’s casualty insurance program. It's important that both project owners and contractors understand the coverage provided by these additional insured endorsements. This article discusses four common ISO additional insured endorsements related to commercial general liability policies purchased by contractors, including their limitations, conditions and exclusions.

Understanding Property Theories of Recovery and Ensuing Loss Clauses

​The theories of recovery, as well as the ensuing loss provisions, contained in property insurance policies are often complex and, at times, seemingly in conflict. Although a policy may not directly address these theories, their application by courts plays a significant role in the coverage determination process after the claim. It is essential that brokers understand the primary theories of recovery – Efficient Proximate Cause, the Concurrent Causation Doctrine, and the Anti-Concurrent Causation Doctrine – in order to navigate the challenging post-claim process and effectively serve their clients.

Sign Up For Our Monthly Newsletter

Sign Up