The Travelers Contract Solutions Matrix

travelerslogoWhen it comes to insuring architects, engineers, and design consultants, one thing the top-tier Professional Liability insurance providers have in common is a wealth of risk management resources for their clients. Some of these resources are even made available to the public. For example, in the past, we’ve blogged War Stories: Real-life Claims Scenarios from Victor O. Schinnerer and Beazley Pro, a new publication from Beazley.

But if, in the course of the day, you come up against an insurance term you wish you understood better, the Travelers Contract Solutions Matrix is a good place to look for your answer

Organized glossary style, this index begins with A Well-Written Contract and ends with Waiver of Subrogation. It’s a place to find definitions, explanations, examples, and answers to frequently asked questions, each presented in the form of a concise two-page document. Other relevant topics included are Additional Insureds, Duty to Defend, Requests for Information, and Unauthorized Changes.

The following is an excerpt from the Travelers Contract Solutions Matrix document on Insurance Requirements:

III. Negotiating points

Policy Limits. You may be asked to provide higher limits than you maintain under your current professional liability or other insurance policy. You may be able to recoup that additional cost of higher limits from the other party to the contract through higher fees. In some cases, specific job excess or specific client excess coverage is available to increase limits on a single project or for a single client.

Length of Obligation. Since professional liability coverage is written on a claims-made basis, you may be asked to maintain the coverage for years following completion of the project. You should negotiate a reasonable period of time in light of the economics of the project and the applicable statute of limitations/statute of repose.

Insurability. Typically, professional liability policies do not cover express warranties and guarantees or liability assumed by contract (liability beyond what a design professional would normally have under the law). Therefore, it is important to evaluate each provision in a proposed contract to verify that you are not guaranteeing your work or being held to a standard of care that is greater than what is imposed by law. In particular, any indemnity clause should be carefully reviewed for this issue.

Download the full PDF version of this resource to find information on Professional Liability, Commercial General Liability (CGL), Workers’ Compensation and Employers’ Liability, and Commercial Auto Liability.

We hope this perk from Travelers is helpful to you. Of course, if you have insurance questions, you can always contact your local a/e ProNet broker and get a quick, straight, specialized answer.

PNN_201403_Waiver of Subrogation A Valid Defense for Architects and EngineersAn attorney is asked to defend an architect in a claim for defective design of a geothermal HVAC system, which allegedly caused an explosion and several million dollars of property damage to an owner’s manufacturing facility. He reviews the file, making notes. The plaintiff is the owner’s casualty insurer, which has paid the claim and sued the general contractor in subrogation. It’s actually the general contractor who has named the architect as a third-party defendant, seeking contribution and indemnity. All sorts of interesting defenses present themselves: statute of repose (work was completed years ago), no common law indemnity claim, no negligence…but what about the contracts for the original project?

Contained within the AIA A201 General Conditions is a boiler plate “waiver of subrogation” clause. It appears to bar subrogation claims for damages covered by insurance on the property. The owner’s carrier picked up the tab, so how can it sue in subrogation now? Are these waivers of subrogation provisions enforceable?

Since the project is in North Carolina, our inquiry starts with a 1987 North Carolina Court of Appeals decision, St. Paul Fire & Marine Insurance Company v. Freeman-White Associates, Inc. The case involves an architect who performed design services for a Charlotte, North Carolina hospital. During construction, a wing of the hospital collapsed, causing significant property damage. The hospital’s insurer paid the claim under an “all risk” policy and then sued the architect in subrogation. The agreements between the parties to the construction incorporated the AIA A201 General Conditions, including its standard waiver of subrogation clause, and the clause was applied by the trial court to dismiss the complaint against the architect under Rule 12(b)6. Unfortunately, on appeal, the court of appeals declined to enforce the waiver of subrogation provision and reversed the trial court’s dismissal.

The rationale? The appeals court held that because the contract required the architect to provide coverage for its own errors and omissions, the contract was susceptible to two interpretations: 1) the true intent of the contracting parties was that the owner would waive all claims for damages against which the owner had insured itself; or 2) the contracting parties intended for the architect to insure against its own negligence in order to negate the waiver as to losses caused by the architect’s negligence.

Not a great result for the client. However, St. Paul Fire & Marine Insurance Company v. Freeman-White Associates, Inc. is a 1987 decision. Surely there has been some better law made since then…

Waiver of Subrogation in General in Construction Contracts

“Subrogation is the substitution of [one person or entity] to the position of another, an obligee, whose claim he has satisfied…” Thus, in the insurance context, the doctrine of subrogation allows an insurer who has indemnifed its insured to step into the shoes of its insured and sue any at-fault party which may have caused the damages. The right of subrogation may arise by equitable, common law principles, or by virtue of any express assignment in the insuring agreement. The policies underlying subrogation are appealing: 1) it feels “fair” that the ultimate liability for a loss should land on the wrongdoer, not an insured’s insurer; 2) in theory, subrogation should keep insurance premiums down; and 3) parties remain incentivized to avoid mistakes. In addition, fault-based claims in the midst of construction can cause delays and increased hostility during the project. Costly litigation would ensue, the avoidance of which was one of the purposes for which the property insurance was originally obtained. Continue reading “Waiver of Subrogation: A Valid Defense for Architects and Engineers?”

malaga_facade_acamp

The following is a re-post from the Southeast Construction Law Blog:

Contractors, subcontractors, and A&E firms all face differing levels of liability on construction projects. Managing that exposure is a key to maintaining profitability and ensuring your business is protected.

One issue I consistently see in my practice is companies taking too much liability for their scope of work on a project. For example, what should the liability of a subcontractor be who has a small $25,000 subcontract on a $15 million project? Should the subcontractor be liable for any and all damages?

Many subcontract agreements state that subcontractors are responsible for “any and all costs” caused by a subcontractor’s delay or interference with any portion of the work. While each party should be liable for damages it causes, this determination is never as clear as it seems.

General contractors (and sometimes owners) often control the timing, means, and methods of how a subcontractor performs its work. In those situations, it is difficult for me to explain to a subcontractor that it is liable for everything it does on site. Even so, many subcontractors’ feet are held to the fire for delay costs in the hundreds of thousands or millions of dollar range when their contract was initially very small.

Architecture and engineering firms face a similar dilemma. Many times A&E firms are brought into lawsuits in the millions of dollars when their scope of work may have been small. I have seen a civil engineer sued for $12 million when it performed a $1,600 staking job on a project.

In addition, A&E firms face a different challenge. Even if an architect or engineer prevails on the claim, the A&E firm has likely spent thousands of dollars in attorney’s fees, all chargeable to the A&E under the deductible in the Professional Liability Insurance policy. Continue reading “Are You Accepting Too Much Liability on Your Construction Project?”

TheProNetBlog_Spring

Spring is in the air, and optimism surrounding the construction industry is at a new high!

We don’t want to kill the buzz, but this is as good a time as any to remember that your design firm isn’t impervious to crime-related loss or damage. Your insurance policy can (and should!) include a few specific coverages to protect you against things like Employee Dishonesty, Burglary, and Computer Fraud.

The following is an excerpt from our Typical Coverages for Design Professionals, and we hope it will educate you and give you some peace of mind:

COMMERCIAL CRIME COVERAGES

Commercial Crime Coverages include several separate insuring agreements. Some or all of these individual coverages may be selected, depending on the individual needs of a design firm:

Employee Dishonesty: This coverage pays for loss sustained by the insured employer up to a specified amount, caused by a dishonest act of an employee or employees covered under the policy. This includes dishonest acts of the embezzlement of money or property, including inventory, owned by the insured.

Forgery or Alteration: This coverage pays for loss sustained by the insured employer for forgery or alteration of checks (including blank checks) issued by the insured. Coverage may be extended to include checks forged or altered by employees as well as others. Continue reading “Commercial Crime Coverages for Architects & Engineers”

Measuring the Success of Your A/E Firm

profits_graphart

We recently stumbled upon Using Four Metrics to Analyze Performance of a Professional Services Firm, an article by June Jewell, President and CEO of Acuity Business Solutions.

An excerpt:

Sometimes the day to day demands of running a professional services business can be overwhelming, especially for creative and technical entrepreneurs and project managers that do not have a financial background. Trying to stay on top of administrative responsibilities, hiring and managing staff, and keeping clients happy can make it difficult to really understand how the firm is performing. Many leaders also struggle to understand and analyze reports and financial statements, and determine where to focus their attention to ensure success.

While there are many important metrics and reports that you can look at each month to gauge your company’s health and profitability, you can get a pretty good understanding of the performance of the business by looking at just four metrics – the Win Rate, Utilization Rate, Project Profit Margin, and the Average Collection Period (or Days Sales Outstanding). By looking at just these four key performance indicators, you can simplify the process of analyzing how projects are being executed and managed, and help your project managers and leaders focus their attention where it will get the most benefit.

Jewell goes into a brief explanation of each of these four metrics, so we invite you to visit her blog and read on. Some of the information might not be new to you, but it’s always good to get a reminder. Jewell is also the author of a new book: Find the Lost Dollars: 6 Steps to Increase Profits in Architectural, Engineering and Environmental Firms. You can download a free chapter on her website.

(Psst! This is anecdotal evidence that Twitter can be excellent resource for design professionals. Have you followed @aeProNet yet?)

PNN_1310So, you’ve scored a new project! This is a shining moment. The road before you vibrates with the potential for creativity and ingenuity. You receive the contract in your email. Double-click. All you have to do is sign on the dotted line. Scroll, scroll, scroll. Insurance Requirements?

Oh boy. You’d better send this one over to your insurance broker for a quick review.

At lunch, you sketch ideas on the back of your napkin, dying to get started. Buzz! Your phone trembles on the table. It’s your broker and, sadly, she didn’t just give you two big thumbs up. Nope. Turns out, the Insurance Requirements include the following line:

Client shall be named as Additional Insured under CG 20 10 (85) or equivalent.

No-can-do. This endorsement is obsolete. But your new client wants it!  And so you’re face-to-face with the eternal and confounding Additional Insured Conundrum.

Does this scenario sound familiar to you? You’re not alone. The following excerpt from our October 2013 issue of ProNetwork News may be able to help:

The Issue

Recent court decisions and increasingly onerous client demands are creating substantial insurance related difficulties for design firms. This article will focus on the potentially hazardous and surprising consequences of adding clients and others as additional insureds to the A/E’s general liability insurance (CGL) policy(s).

A recent Illinois Appellate Court Decision illustrates this threat: Patrick Engineering Inc. (Patrick) v. Old Republic General Insurance Co (Old Republic). The basic facts are:

Patrick was retained by Commonwealth Edison (Com Ed) to provide engineering services in connection with relocation of utility poles. While working on the project, Com Ed smashed through an underground sewer in at least four separate locations. Subsequently, the local municipality, Village of Lombard, sued Com Ed alleging that it acted negligently. Continue reading “The Additional Insured Conundrum: A/E Firms Face a New and Potentially Growing Liability Exposure”

EngineeringInc_aeProNetad_2014

Incredibly, even the global economic crisis hasn’t hardened the Professional Liability Insurance market for Architects and Engineers. Today, there are more insurance companies offering A&E policies than ever. And, thanks to the increasing insurance savvy of Design Professionals (particularly those utilizing the services of specialist brokers), new Professional Liability insurers are offering more in the way of risk management and pre-claims assistance, too.

You’ll find all this information and more outlined in the The Hard Market That Never Came, an analysis of the 2013 Professional Liability Insurance Survey of Carriers, in the February 2014 issue of Engineering, Inc. Continue reading “Engineering Inc. – 2013 Professional Liability Insurance Survey of Carriers”

An Unfair Duty to Defend

pnn_unfairdutytodefendNo engineering project is without risk. Somewhere between the goal of designing the best bridge, building or water treatment facility and running a profitable business lurks the ever-present possibility of litigation. A legitimate disagreement can occur, a company can make a mistake, or a firm or government entity—or a member of the public—can file a lawsuit that forces the firm to defend itself and its work. “A lot of risks exist and they’re not necessarily related to the quality of the work performed,” says John Moossazadeh, a senior vice president at Kleinfelder in San Diego.

Engineering firms often take jobs that knowingly expose the firm to legal risk. But how much risk is too much?

That’s a question that more and more engineering and design firms are asking when confronted with contracts that contain controversial “Duty to Defend” language.

A contractual Duty to Defend provides that the engineering firm will pay for attorney’s fees and costs incurred in a client’s defense of a claim. Depending on the con-tract language and the governing jurisdiction, this duty may be immediate from the time the claim is made, and may exist regardless of whether the engineer is found to be negligent. Although basic indemnification and defense clauses are common, and they typically assign risk to the negligent party, a growing number of developers and agencies request—and, in some cases, demand—that the consultant or firm in charge of the project defend any suit or other legal action brought against the developer or owner, and sometimes even irrespective of whether the claim is related to the engineer’s services.

Duty to Defend provisions are therefore criticized because a consultant or engineer who signs such an agreement could be legally required to bear the cost of defending against any project-related claim, even when the claim has nothing to do with the services performed by the firm, and there’s zero evidence of negligence. “It forces engineers to take responsibility for far more than the work they’re being paid to do and what their insurance covers,” explains P. Douglas Folk, principal at Folk & Associates in Phoenix. Continue reading “An Unfair Duty to Defend”

contract

Why should I strike “breach of contract” from the indemnity provision in my agreement?

For one thing, it is redundant as there is already a remedy under the law should you breach your contract. Please note the excerpt in the next question from our Practice Notes Vol. 4 NO. 2, Indemnification: How to Identify Unacceptable Risks and Get Them Out of Your Agreements.

What is the significance of the statement in an agreement: “breach of any term or condition of this Agreement”?

Negligence may be difficult to prove, but breach of contract is not. To establish a breach, all an owner need do is prove that 1) you owed a duty to perform under your agreement, 2)you breached that duty, and 3) damages were sustained as a result. This is your client’s fall back position in the event negligence turns out to be impossible to establish. It is also your invitation to the owner to sue you at your expense. There is great leverage in this, and it flows in a single direction-from you to your client. Your client sues you for breach of contract, and you pay the associated attorneys’ fees and costs. Arguably, this is inconsistent with public policy. Public policy generally demands mutuality as a matter of equity where there is an agreement by one party to pay the attorney’s fees of another regardless of the outcome of a dispute between the two. Attorney’s fees are the only issue here, for if you are found to have breached your contract, there is a remedy for that in the law. As far as you are concerned, it is neither necessary, nor is it appropriate for you to add your indemnity to that remedy. Absent negligence your indemnification for breach of contact may be uninsurable; absent mutuality, it is unfair. Delete this language if you can. If you encounter sustained resistance, you might invoke the public policy argument and propose, as an alternative, to substitute language elsewhere in your agreement calling for the non-prevailing party to any dispute to compensate the prevailing party for costs of defense. There is leverage in this for you, but there is also some risk. Seek the advice of counsel before you pursue this strategy.

Excerpted from the FAQ page on the a/e ProNet website, one of many risk management resources for Architects & Engineers. Have any questions? Contact your local a/e ProNet broker or contact us directly today.