Contractual Liability and the CGL Policy

May 2002

What is meant by contractual liability and how it actually works is not

always well understood. In this new column, Craig Stanovich helps clear

up the misconceptions.

by Craig F. Stanovich

Austin & Stanovich Risk Managers, LLC

Contractual liability is a very important concept in the world of risk management and

insurance. Yet, what is meant by contractual liability and how it actually works is not

always well understood. This article is intended to clarify the concept of contractual

liability with examples of risk transfer by contract as well as providing an

explanation, with illustrations, as to how the contractual liability insurance, found in

the commercial general liability (CGL) insurance policy, applies.

In General

Outside the context of insurance, contractual liability (or liability because of a

contract) has a very broad meaning—a promise that may be enforced by a court.

Consider the following simple example. I agree to paint your house for $1,000 and

collect $500 prior to the job. After I accept the $500, I obtain a more lucrative offer

and never show up to paint your house. You can go to court and claim the $500 you

paid me, as I have breached the contract. Your claim is a contractual liability claim.

Agreement To Assume Liability

It is common for businesses or organizations to agree, usually in writing, to take on

the liability of someone else—liability they would not otherwise have. This form of

agreement, where one party takes on or assumes the liability of another by contract,

is commonly called a "hold harmless" or "indemnity" agreement.

Hold Harmless or Indemnity Agreement. In an indemnity or hold harmless

agreement, one party (the indemnitor) promises to reimburse, and in some cases

defend, the other party (the indemnitee) against claims or suits brought against the

indemnitee by a third party. The purpose of the hold harmless or indemnity

agreement is to transfer the risk of financial loss from one party (the indemnitee) to

another party (the indemnitor). This transfer or shifting of financial consequences is

often called non-insurance contractual risk transfer and is considered a risk financing

technique.

Properly written hold harmless and indemnity agreements override common law and

afford an indemnitee the right to collect from the indemnitor, in some cases even if

liability arises out of the indemnitee's sole negligence. While each state has its own

statutes and case law that may restrict what may or may not be transferred, it is a

mistake to conclude that all hold harmless and indemnity agreement are void and

against public policy simply because the agreement assumes liability for the sole

negligence of another.

One very important aspect of the hold harmless or indemnity agreement is that it

does not relieve the indemnitee (the party with the benefit of the promise) from

liability to the third party. The indemnitee may be found to be completely liable to

the third party for its bodily injury or property damage.

The hold harmless gives the indemnitee a legal right to collect from the indemnitor

(to the extent included in the contract and allowed by law) for the damages paid to

the third party. The purpose of contractual liability insurance is to pay, on behalf of

the indemnitor, the damages to the third party.

Where To Find Hold Harmless and Indemnity Agreements. Businesses or

organizations enter into in a wide variety of contracts in which hold harmless or

indemnity agreements may be found. One very common contract, in which a hold

harmless or indemnity agreement is almost always found, is a real estate lease

agreement between tenant and landlord. A sample hold harmless and indemnity

clause found in a real estate lease is:

The Lessee will save the Lessor harmless and keep it exonerated from all loss,

damage, liability or expense occasioned or claimed by reasons of acts or neglects of

the Lessee or his employees or visitors or of independent contractors engaged or

paid by Lessee whether in the leased premises or elsewhere in the building or its

approaches, unless proximately caused by the negligent acts of the Lessor.

As many indemnity or hold harmless clauses may be quite lengthy and difficult to

read, it is often a challenge for risk managers to determine with any precision the

scope of liability that has been assumed. The following example may prove helpful to

explain how the above agreement might work.

An Illustration of the Workings of a Hold Harmless or Indemnity Agreement.

A tenant (Lessee) in a multi-tenanted professional office building hires an electrician

(an independent contractor) to rewire a portion of the tenant's (Lessee's) office.

About a year after the rewiring is finished, another tenant receives a severe electrical

shock when plugging in an appliance, resulting in serious injuries to the tenant.

The injured tenant brings suit against the landlord (Lessor) demanding compensation

for her injuries, alleging that the landlord breached its duty to properly wire the

building. The investigation strongly suggests that the injury of the tenant was

caused, at least in part, by the electrician's wiring job. Nonetheless, the landlord

(Lessor) is found to have responsibility for the injuries and is ordered to pay the

injured tenant $150,000 in compensatory damages.

As the tenant (the Lessee) has agreed to indemnify the landlord (Lessor) for the acts

of the tenant's (Lessee's) independent contractors, the tenant (Lessee) is obligated

by the lease's hold harmless clause to pay the $150,000, either as payment to the

landlord or directly to the injured tenant. In this situation, the tenant (Lessee) would

not normally have had any liability to the injured tenant. His liability arises solely

from the agreement, as part of the lease, to take on the liability of the landlord. The

tenant's contractual liability insurance would pay on his behalf the $150,000

damages owed.

While the electrician may ultimately have to pay $150,000 (or a lesser amount) via a

subrogation action, the landlord (Lessor) does not have to wait for the result of

further litigation or be concerned with proving fault on the electrician's behalf in

order to recover the $150,000 (the tenant assumed liability for the acts of his

independent contractors, regardless of negligence). Even if the Landlord could prove

fault on the electrician's behalf, it may only be partial fault, and may result in the

landlord collecting less than the $150,000 in damages.

In short, the landlord has transferred the financial risk of having tenants in his or her

building back to each tenant via the hold harmless and indemnity agreement

inserted in the lease.

Contractual Liability Insurance and the Commercial General Liability

Policy

Contractual liability insurance has been automatically provided within the commercial

general liability (CGL) policy since 1986. The mechanics of how coverage is actually

provided does merit some explanation.

The first mention of "Contractual Liability" in the 2001 CGL policy is as the title of an

exclusion. Coverage is eliminated by this exclusion for assumption of liability in a

contract or agreement. There are, however, two important exceptions:

! Liability of the insured that would be imposed without the contract or

agreement

! Liability assumed in a contract or agreement that is an "insured contract."

The term "insured contract" is defined later in the policy and is critical to

understanding the coverage provided. More on "insured contract" later.

Breach of Contract Claims

On occasion, a policyholder will seek coverage under the CGL policy for a breach of

contract claim. In other words, the damages being demanded do not arise from

liability assumed in a hold harmless or indemnity agreement, but are due to failure

to meet an agreed upon obligation. Avoiding coverage for breach of contract claims

is the very reason the CGL first excludes all contractual coverage, then grants limited

contractual liability coverage by an exception to the exclusion. Here is an example of

what is intended to be excluded:

A contractor agrees in a construction contract to insure a building that is being built

for the owner. Unfortunately, the contractor forgets to place the insurance on the

building, which a tornado destroys shortly before its completion. The owner seeks

payment from the contractor for the value of the building, asserting a breach of

contract action for failing to purchase insurance. The contractor then makes claim

under the contractual liability coverage of his CGL policy for the value of the building.

Assumption of Liability by Contract or Agreement

What is actually meant by "liability assumed by contract" has been the topic of a

considerable amount of litigation, with varied outcomes. An Alaska case—Olympic,

Inc. v Providence Washington Insurance Co., 648 P2d 1008 (Alaska 1982), as quoted

in Gibbs M. Smith v United States Fidelity & Guaranty Co., 949 P2d 337 (Utah

1997)—provides this explanation, which reinforces the concept that coverage is not

for breach of contract:

Liability assumed by the insured under contract refers to liability incurred when one

promises to indemnify or hold harmless another, and does not refer to liability that

results from breach of contract.

The court went on to explain the differences in the nature of the obligations:

Liability ordinarily occurs only after breach of contract. However, in the case of

indemnification or hold harmless agreements, assumption of another's liability

constitutes performance of the contract.

Assuming a Duty versus Assuming a Liability

Assuming the liability of another (agreeing to be responsible for some else's legal

obligation to pay damages to third parties) is sometimes confused with assuming a

duty to others (an obligation to act or not to act that would not exist but for an

agreement). For example, I may enter into a maintenance contract whereby I agree

to regularly service the machinery on your premises, creating a duty that I would not

otherwise have had. But I carelessly fail to service a machine that later malfunctions,

injuring your employee. It is subsequently found that my failure to service the

machine caused the malfunction and employee's injury. The employee brings suit

against me for her injuries.

Some insurers have mistakenly denied CGL claims such as these, contending the

claim is a breach of contract claim and thus excluded by the contractual liability

exclusion of the CGL. A more careful analysis of this type of claim will reveal that it is

in actuality a tort-based claim—specifically negligence. I breached a duty (to

maintain the machinery), such breach being the proximate cause of the injury to the

employee. The duty was assumed or created by the contract; no assumption of

liability via a hold harmless or indemnity agreement was involved. The damages

claimed were not by the other party to the contract and were not the cost to fulfill

the contract, but rather damages resulting from injuries to an unrelated party, the

injured employee.

This issue was addressed in Olympic, in which the Alaskan court held that:

Legally obligated to pay as damages … refers to liability imposed by law for torts and

not to damages for breach of contract … the only exception to this general rule arises

when the contract breach itself results in injury to persons or property. (Emphasis

added.)

Coverage by Exception—The "Insured Contract"

The exception to the contractual liability exclusion does provide broad contractual

liability coverage for liability assumed in a contract as long as:

1. The bodily injury or property damage occurs after entering into the contract,

and

2. The liability is assumed in a hold harmless or indemnity agreement that falls

within the definition of "insured contract."

The contractual liability coverage provided for "insured contracts" is "blanket" in that

the insured does not need to list or designate the covered contracts (as was required

under the 1973 Contractual Liability Coverage Part), nor is a separate premium

charge made for contractual liability coverage. Contractual liability coverage in the

CGL is also "broad form," as it applies even if an insured assumes liability for the

sole negligence of the indemnitee.

"Insured contract" is defined, and the definition begins by listing five types of

contracts that are common to many businesses and organizations:

! Lease of premises (but not for a promise to pay fire damage to a premises

you rent or occupy)

! Sidetrack agreement

! Easement or license agreement (not for construction or demolition on or

within 50 feet of a railroad)

! Indemnify a municipality (except for work for the municipality)

! Elevator maintenance agreement

Coverage for the above five contracts was automatically included in the 1973 CGL

policy (and prior editions) as "incidental contracts." When the CGL was overhauled

and simplified in 1986, the listing of these "incidental contracts" remained to clarify

that coverage was still intended to apply to liability assumed in these contracts.

The "blanket" contractual clause extends coverage to any contract pertaining to the

named insured's business under which they assume the tort liability of another. Tort

liability means liability imposed other than by contract. Put another way, coverage

applies only to a particular type of assumed liability—that which arises from a breach

of duty and that exists independent of any contractual relationship the indemnitee

may have with the injured party. [Barry R. Ostranger and Thomas R. Newman,

Handbook on Insurance Coverage Disputes 7.01 (8th Ed. 1995).]

What Is Not an "Insured Contract"

"Insured contract" does not include an agreement to indemnify:

! A railroad for construction or demolition operations within 50 feet of railroad

property and affecting any railroad bridge or trestle, tracks, roadbeds, tunnel,

underpass or crossing.

! An architect, engineer or surveyor for their professional services.

! Others for professional services if assumed by an insured who is an architect,

engineer or surveyor.

Railroad protective liability and professional liability coverage is needed if an insured

has exposures falling within the exclusions.

Craig F. Stanovich is co-founder and principal of Austin & Stanovich Risk Managers, LLC,

a risk management and insurance advisory consulting firm specializing in all aspects of

commercial insurance and risk management, providing risk management and insurance

solutions, not insurance sales. Services include fee based "rent-a-risk manager"

outsourcing, expert witness and litigation support and technical/educational support to

insurance companies, agents and brokers. Email at

cstanovich@austinstanovich.com

Website

www.austinstanovich.com

This article was first published on IRMI.com and is reproduced with permission. Copyright

2002, International Risk Management Institute, Inc.