Comment on Indemnifying and naming subscriber as additional insured January 23, 2024

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on Indemnifying and naming subscriber as additional insured
January 23, 2024

Comment on Indemnifying and naming subscriber as additional insured from article on January 11, 2024
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Ken,
          We frequently get questions like Lea’s about how to respond to multiple pages of insurance requirements from a commercial customer; Often enough that we put together a short guide on how to navigate requirements like those. Thought I’d send that to you if you thought it would benefit your readers, here it is.
          If your company does work for other businesses, then you’re used to receiving requests for proof of your insurance, certificates including the “Additional Insured” clause. Normally you supply a COI (Certificate of Insurance) and that takes care of it. But what happens when your customer comes back and wants more? What if they refer to the contract for the job and tell you your certificate is incomplete and needs to provide additional paragraphs (or pages!) of special wording to comply? Is it reasonable? Can you still get paid? Are there any other potential consequences to beware of?
          The answer varies, depending on the verbiage in the contract you’re being asked to sign, but it can range from no big deal… all the way up to putting your policy on the hook to give MORE coverage for the Additional Insured than it does for you as the primary policyholder. Agreements or contracts written by your customer that contain Additional Insured requirements are all Risk Transfer efforts designed to move as much exposure as possible from that customer back over to its vendors, i.e. you, so you should be aware of what you’re being asked to go along with.
          My customers ask me all the time, “can I comply with the insurance requirements in this contract”, and sometimes the answer is “no.” Why? When the requirements are out of date or misworded, or referencing insurance forms that have been out of circulation for decades, and/or ask for liability limits so high that only large companies can afford them. However, I tell them they may still find out the insurance they already have MIGHT be accepted if they just submit it and see if their customer accepts it.
          A word of caution: customer acceptance of your insurance does not necessarily mean you are in compliance with the contract, it just means you can get paid for the work you’re doing at present. Deciding how to interpret and respond to a contract that might be poorly constructed is a valid concern, but it’s separate from the question of “how do I get paid”, and more of a legal strategy, and for that, you’ll want to talk to your attorney.
          Here’s what you should know: most standard GL (General Liability) policies will include a basic Blanket Additional Insured endorsement. This essentially says that if you have an executed contract or agreement with someone requiring they be Additionally Insured, then they are. The idea is that, while you are providing ongoing operations for your customer, if your customer gets sued due to your negligence, then your insurance will indemnify your customer. Standard stuff. No extra cost and the certificate confirming the Additional Insured status is quick to issue.
          However, that doesn’t address the EXTRA clauses your customer’s contract may contain, that are designed to transfer MORE risk, MORE burden back over to its vendors, like you.
          Things like:
  *  Making your insurance primary (first to have to pay) even in cases where your Additionally Insured customer is partially negligent or even completely negligent (“Primary and Non-Contributory wording”).  May apply to GL and Auto.
  *  Restricting your insurance from seeking reimbursement from the Additional Insured if your insurance pays out first due to an agreement, even when your customer is negligent (“Waiver of Subrogation”).  May apply to GL, Auto and Work Comp.
  *  Making you responsible for your customer’s/Additional Insured’s premises or job site you worked on AFTER all your operations and services there have ended (“Completed Operations”).  Applies to GL.
  *  Customer/Additional Insured requiring 30 days written notice directly from your insurance company if any condition of your policy changes or cancels.  May apply to GL, Auto and Work Comp.
  *  Customer/Additional Insured requiring that your insurance plan’s full policy limit is guaranteed to be fully available, even if other claims have already been paid that year (“Per Project Aggregate”).  Applies to GL.
  *  These clauses can be costly to get your insurance to comply with because insurers know that compliance equals taking on a whole lot more risk.
          We see these requests included on customer contracts all the time, but what’s interesting is that they’re not always enforced. What we encourage our insureds to do is to provide a certificate including whatever type of Additional Insured they already have included in their policy, and then see what kind of response their customer comes back with. Many times we will see a much less burdensome level of coverage accepted than what is spelled out in whatever boilerplate their customer may have used to create its agreement.
          Or, if you know you’re going to have a lot of customers that have burdensome requirements like these, and they pay well enough to justify it, you can upgrade your policy to include all of that wording by default. That’s an option too.
          So in the end, what’s reasonable is often defined by what’s accepted. And it behooves any business to push back a bit when confronted with insurance requirements that are outside what they’ve already found to be commonly accepted. We help our clients navigate this daily, and the relief usually starts just with the knowledge that they CAN push back and likely reach a compromise.
          If you’re looking at insurance requirements that seem burdensome or unreasonable, give us a call (800-530-4448), we can help you navigate.
Thanks,
Larry St John, CIC, CRM
Eclipse Marketing & Insurance Services
lstjohn@eclipseinsurance.com
707.469.6776 x102
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Response
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          Good advice, for the most part.  You need to be very careful complying with Vendor or your customer’s form agreements that have insurance [and many other] requirements.  The insurance requirements are becoming so complex I have resorted to advising clients to check with their insurance broker to make sure they can comply with the contract insurance requirements, all of them.
          Be care about “your customer accepted” what you sent them even though you know it doesn’t comply with the contract requirement.  When I “try” that its only after I have negotiated a provision that if the customer accepts the proffered insurance the contractor [which would be you] is deemed to be in compliance.  Without that it’s not likely sending over the wrong or deficient coverage is going to be deemed sufficient or compliant with the contract requirement.  One obvious issue with non-compliance is that your customer can refuse to pay you if it finds out you didn’t have proper insurance coverage, perhaps recoup what’s already been paid.  Keep in mind that your failure to procure the proper insurance [as defined by the contract your sign] is likely a non-curable default of the contract, unless you can get retroactive coverage, which you probably can’t get without a waiver for events preceding the purchase date when you seek the proper coverage.
          A couple of simple best practice rules to follow:
  *  Always insist that your customer sign your Standard Form Agreement
  *  If you are asked to sign a customer contract make sure it doesn’t supersede your Standard Form Agreement
  *  If you are indemnifying your customer, for anything, make sure you have insurance in place that will cover the indemnity; all of it
  *  Your policy may not have “contractual indemnity”, so you better find out from your broker, in writing [and hopefully he has professional malpractice coverage if it turns out you need and don’t have contractual indemnity coverage].
  *  Negotiating your Standard Form Agreement or your customer’s agreement on your own is not wise.  Your accountant, your insurance broker and your brother in law are also not wise choices to deal with contract negotiations [and yes, I don’t care how many you’ve done].  Your best bet for this is the K&K Concierge Program, where you get [and hopefully use] your free half hour each month for contract review and negotiations.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com