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Journal of Banking and Insurance Law (JBIL)

  ISSN: 2582-6875

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The Journal of Banking and Insurance Law is prepared under the aegis of eminent scholars, Legal experts, academicians, attorneys and other professionals. The scope of the journal is broad and covers topics such as banking, securities, financial services, administrative and general banking & Insurance related laws & issues arising out of them. The Journal welcomes all scholars exploring the general subject matter of financial institutions including financial products and markets. Law and strategy makers are under consistent pressure to watch the enthusiasm of buyers. JBIL welcomes contributions from scholarly community and experts involved in banking & insurance industries. It's a biannual journal (frequency January-June and July-December), started in 2018 .

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The Journal of Banking and Insurance Law focuses on the various laws and regulations under which a banking system is functioning. The various laws relating to banking are as follows: · Law of Limitation - Provisions of Bankers Book Evidence Act - · Special Features of Recovery of Debts Due to Banks  · Financial Institutions Act, 1993 · TDS · Banking Cash Transaction Tax · Service Tax · Asset Reconstruction Companies · The Securitization and Reconstruction of Financial Assets and · Enforcement of Security Interest Act, 2002 · The Consumer Protection Act, 1986 · Banking Ombudsman · Lok Adalats · Lenders Liability

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ISSN: 2582-6875

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Unveiling the Comprehensive Landscape of Insurance Law in India

Unveiling the Comprehensive Landscape of Insurance Law in India – Insurance is an integral part of modern life, providing individuals and businesses with financial security and protection against unexpected risks

Introduction : Insurance is an integral part of modern life, providing individuals and businesses with financial security and protection against unexpected risks. In India, the insurance sector is regulated by a comprehensive framework of laws and regulations aimed at ensuring the stability, transparency, and fair operation of the insurance industry. In this article, we will delve into the depth of insurance law in India, exploring its history, key legislations, regulatory bodies, and recent developments. Key Legislations : 1. The Insurance Act, 1938: This is the cornerstone of insurance regulation in India. It governs the establishment, operation, and regulation of insurance companies in the country. The act has undergone several amendments to adapt to the evolving insurance landscape. 2. The Insurance Regulatory and Development Authority Act, 1999 (IRDA Act): This act led to the creation of the Insurance Regulatory and Development Authority (IRDA), an autonomous body tasked with regulating and promoting the insurance sector in India. The IRDA Act granted statutory powers to the IRDA to issue licenses, prescribe regulations, and protect the interests of policyholders. 3. The Insurance Laws (Amendment) Act, 2015: This amendment introduced significant changes to the Insurance Act of 1938, including an increase in the foreign direct investment (FDI) limit in insurance companies from 26% to 49%, thereby encouraging foreign investment in the sector. 4. Motor Vehicles Act, 1988:While not exclusively an insurance law, this act mandates motor vehicle insurance for all vehicles plying on Indian roads. It ensures that victims of road accidents receive compensation through insurance coverage.

Regulatory Bodies

The insurance sector in India is primarily regulated by the Insurance Regulatory and Development Authority of India (IRDAI). The IRDAI is responsible for licensing insurance companies, monitoring their financial health, and safeguarding the interests of policyholders. It also plays a crucial role in formulating policies and regulations to foster growth and innovation in the insurance industry. Key Aspects of Insurance Law in India: 1. Licensing and Regulation: Insurance companies must obtain licenses from the IRDAI to operate in India. The regulator sets stringent criteria for the issuance of licenses, including capital requirements and solvency margins. 2. Product Approval: Insurance products must be approved by the IRDAI before they can be offered to the public. This ensures that products are fair, transparent, and meet the needs of policyholders. 3. Consumer Protection:Indian insurance law places a strong emphasis on protecting the interests of policyholders. Insurers are required to maintain high standards of service and promptly settle claims. 4. Investment Regulations:The law prescribes strict guidelines on how insurers can invest their funds to ensure the safety and security of policyholder funds. Recent Developments : The Indian insurance sector has witnessed several transformative developments in recent years, including the increase in the FDI limit, the introduction of new insurance products, and the adoption of digital technologies for policy issuance and claim settlement. These changes have led to increased competition, innovation, and better access to insurance for the masses. Conclusion : The landscape of insurance law in India is multifaceted, evolving, and geared towards protecting the interests of policyholders while fostering the growth of the insurance industry. With regulatory oversight, consumer protection measures, and a commitment to adapt to changing market dynamics, the Indian insurance sector continues to play a vital role in the economic development of the nation, offering financial security to millions of individuals and businesses.

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Blueprint of a National Health Insurance Law

Creating a constitutionally valid and rights-based statutory basis for the Pradhan Mantri-Jan Arogya Yojana

Summary: The Constitutional division of legislative powers and India’s international obligations suggest that a national health insurance law should be non-discriminatory, provide for accountability, transparency and grievance redressal and monitoring mechanisms.

The Pradhan Mantri – Jan Arogya Yojana (PM-JAY) is part of the Government of India’s Ayushman Bharat initiative. It is a scheme that is aimed at protecting poor and vulnerable families against financial risk arising out of catastrophic health episodes, which have the potential of pushing such families into impoverishment. The National Health Authority (NHA) has been created by an executive notification to implement the PM-JAY. The PM-JAY offers a benefit cover of INR 5,00,000 per family per year to approximately 10.74 crore eligible families, towards hospitalisation expenses for secondary and tertiary care. PM-JAY is thus a scheme of far-reaching socio-economic importance.

Recently, the Government has proposed the conversion of the scheme to a legally enforceable statutory framework. In this context, this Concept Paper attempts to lay out the blueprint of such a National Health Insurance Law which is in line with India’s international obligations and is constitutionally sound. It proposes that such a law must be informed by a rights-based approach to ensure that it is not discriminatory, is accountable and transparent, and provides for a robust grievance redressal and monitoring mechanism. To ensure that a Central law is constitutionally sound, it proposes that a health insurance law can be enacted under ‘social insurance’ in Entry 23, List III of the Seventh Schedule of the Constitution. Past experiences of conversion of schemes into legislation and the convergence of State and Central schemes also provide instructive lessons for drafting such a law.

Filed Under

About the authors.

Akriti led the Centre for Applied Law and Technology Research (ALTR). At Vidhi, she advised several Ministries and public institutions of the Government of India, and the State Governments of Delhi and Karnataka, on drafting legislation and policies related to technology and constitutional law, digital inclusion, and education reform. She has advised on projects relating to privacy and data protection, regulation of the digital economy, platform governance, cybersecurity and allied areas at the intersection of law and technology. Her research interests include constitutional law, technology law, platforms and digital markets/FinTech, regulation of the sharing economy, AI governance and ethics, platformisation of speech, data governance, and privacy. Akriti graduated with a B.A. LL.B (Business Law Hons.) from the National Law University, Jodhpur in 2015.

Akshat was a Research Fellow at Vidhi. He has advised on projects relating to the regulation of the digital economy, privacy, federalism and healthare. His areas of research interest included constitutional law, gender and sexuality, family law and public health.

Arghya is the Founder and Research Director at Vidhi. His areas of specialisation are constitutional law and regulation of the digital economy. He has served on a number of government committees including the B.N. Srikrishna-led committee of experts on a data protection framework for India. Arghya has a number of academic publications on the Supreme Court and the Constitution in leading law journals such as Law Quarterly Review and Public Law. He is also a columnist at The Telegraph and The Times of India. He has most recently authored a book “Independence and Accountability of the Indian Higher Judiciary” (Cambridge, 2019) which builds on his doctoral work at Oxford University. Prior to founding Vidhi, he was at Oxford as a Lecturer in Administrative Law at Pembroke College.

Dr. Dhvani Mehta {B.L.S. LL.B. (University of Mumbai); BCL, D.Phil (Oxon)} is a Co-Founder at Vidhi and Lead, Health. She has worked specifically on research projects on environmental clearances, the National Green Tribunal, organ transplant laws, end of life care, and pharmaceutical and medical device regulation. She has appeared in the Supreme Court of India in petitions filed by Vidhi on advance medical directives and discrimination against persons affected by leprosy. She has authored chapters on the implementation of environmental judgments and healthcare corruption in India. Dhvani read for a doctoral degree at the University of Oxford on a Rhodes Scholarship, where she was Chairperson of Oxford Pro Bono Publico and an editor of the Oxford Human Rights Hub blog. Her doctoral thesis explores the idea of an environmental rule of law in India and was cited by the Supreme Court of India.

Param was a Research Fellow at Vidhi.

Shehnaz is Senior Resident Fellow and Lead, Fintech. She works on emerging areas of policy and law on the intersection of finance, technology and inclusion. At Vidhi, she has worked with several Ministries of the Government of India on matters relating to digital payments, financial regulation, commercial laws and business and human rights. Her independent research at Vidhi focuses on leveraging technological solutions to build a robust and inclusive financial system for all in India. Prior to joining Vidhi, she worked as an associate at the Financial Regulatory Practice at Cyril Amarchand Mangaldas, Mumbai where her work focused on advising leading financial institutions (both Indian and multinational), including payment systems on legal and regulatory issues in India. She has also involved in several mergers and acquisitions in the financial space. She has also worked as an associate at the Dispute Resolution team at JSA, New Delhi. She writes frequently for the Oxford Business Law Blog and media outlets such as Hindu BusinessLine,Financial Express, MoneyControl, FirstPost, etc. She graduated from RML National Law University in 2011.

Shreya was a Senior Resident Fellow working in the area of Health and Education. She worked on research projects related to public health, patient rights and inclusive education. Her areas of interest include Public Health, Right to Education, Constitutional law, Cyber law, and the intersection of Health and Technology. Shreya graduated with a B.A. LL.B. (Hons.) from Hidayatullah National Law University, Raipur in 2018. She has been published in newspapers and websites like The Hindu and The Wire. She has co-authored the Centre for Civil Society’s ‘Compendium of laws to be repealed in Chhattisgarh’. In collaboration with the Centre for Communication Governance (CCG), she submitted an academic paper to MEITY on ‘Non-Consensual Obscene Content and Indian Law’. Prior to joining Vidhi, she has interned with policy organisations like CCG and the Land Rights Initiative at the Centre for Policy Research, in the Chambers of Senior Advocate Prashant Bhushan, and with law firms like Karanjawala & Co and Samvaad Partners.

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Chapter: iii. legal research topics.

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

9determined after the apportionment of fault by set- tlement or jury verdict. In some matters in Missouri, insurance companies and the Missouri Department of Transportation (MoDOT) have agreed that department in-house counsel will defend the case, while billing the insurance company for expenses. Using that strategy, the insurance company pays expenses only and any judgment, and the agency gets the benefit of in-house representation without the risk of paying any judgment. Occasionally, the insurance company pays all costs associated with in-house counsel representation. 7. Certificate of Insurance Maine, Massachusetts, and New York each has its own certificate of insurance that is to be used by the contractor when providing proof of insurance. Other certificates will not be accepted. Each state uses this certificate so that it can easily review the coverages provided by contractors. 8. Retainage of Payment Minnesota, Rhode Island, and Washington have the ability to retain payments from the contractor, either from the job under construction or any other job, if they find it necessary to protect their interests regarding lawsuits, claims, or any actions that have arisen out of the contractor’s actions or inactions. If money is due to the contractor, the agencies may with- hold the funds until they receive evidence that the claim or action has been settled. In the indemnifica- tion section of its specifications, Rhode Island states: “The State may retain for its exclusive use, without recourse by the Contractor or anyone claiming under the Contractor, any and all amounts due the Contrac- tor as provided under the Contract Documents to assure the Contractor’s compliance with this section.” 9. Policy Exclusions Maryland requires any policy exclusions to be shown on the face of the insurance certificate. As noted earlier, although certificates are intended to notify the contractor and state of the coverage that is in place at the time of the contract, the certificate does not serve as proof of insurance. Maryland’s practice provides an additional layer of assurance to the state that the coverage required under the con- tract is provided. 10. Cancellation of Coverage All the agencies surveyed require insurance cov- erage to remain in effect throughout the job, and some states, such as South Carolina, provide that coverage cannot be cancelled except upon 30 days’ notice to the agency. Multiple agencies require notice of cancellation of insurance to be provided 2 weeks to 30 days prior to cancellation and every agency considers cancellation of insurance without replace- ment to be a material breach of the contract. 11. Rejection of Insurance Company Many agencies, including Caltrans, Nebraska Department of Roads, Wyoming Department of Transportation, and Michigan Department of Trans- portation, require an insurance company to have a particular financial rating, such as AM Best and a Financial Size Category of VII, before insurance will be accepted. This provision is intended to ensure the carrier’s ability to pay for the claims it is insuring. 12. Sovereign Immunity Rhode Island, in the indemnification section of its specifications, provides as follows, “nothing herein shall be deemed to constitute a waiver of the sover- eign immunity of the state, which immunity is hereby reserved by the state.” Similarly, New Jersey specifications provide: “The department does not waive sovereign immunity except as provided under NJSA 59:13-1. The rights or benefits provided in the contract that exceed those provided under state law are contractual in nature and do not expand the waiver of sovereign immunity found in state law.” A more detailed discussion of these issues can be found in Section IV—Common Coverage Issues. 13. Tender of Defense Caltrans requires a contractor to respond to the tender of a claim for defense within 30 days of the tender. If the contractor fails to accept or reject the tender within 30 days, the department may with- hold any funds it considers necessary for the defense and indemnity until the claim is disposed of or the contractor accepts or rejects the defense. When an insurance company refuses to respond to a tender of defense, or delays its response by months or even years, the state must use its own resources to defend a claim that should be defended by the contractor’s insurance carrier. III. LEGAL RESEARCH TOPICS Following is a discussion of commonly encoun- tered coverage issues. Most disputes center around the language found in the construction contract and the specifications. For this reason, it is critical that the agency specifically sets out the insurance requirements for its contractors in the specifications and that it reviews all submitted documents closely to ensure compliance with the specifications and contract.

10 Insurance policies are typically printed on stan- dard forms. Some of those forms are printed by the ISO, while other forms may be prepared by an underwriter for an insurance company. Occasion- ally, when there is a special or atypical risk, a sepa- rate policy, called a manuscript policy, may be prepared to cover that risk. The typical policy will contain insuring provisions, exclusions, definitions, and general conditions. The policy will also contain a declarations page that describes the details of and the amounts of coverage, the period of coverage, and the cost of the premium. Most policies also contain endorsements, which are provisions that either add to or limit the basic insurance policy. The endorse- ments should be listed by number on the declara- tions page. While all policies contain exclusions, exclusions to coverage are typically construed by courts against the insurer.8 A. Types of Coverage The most common type of coverage at issue in construction disputes is what is known as CGL cov- erage. A CGL typically provides coverages using Coverage A for bodily injury, which includes fatali- ties and property damage, and Coverage B, which includes personal injury and advertising injury. In most disputes involving construction projects, issues arise as to coverages available for the additional insured. Two main types of disputes generally occur in litigation: whether the injury or damage was incurred in the course of ongoing operations and whether liability “arises out of the operations” of a named insured. The scope of the coverage available to the additional insured is usually explained by way of an endorsement, typically referred to as an Additional Insured Endorsement or Contractor’s Endorsement, and is subject to most of the terms and conditions of the CGL form. The specifics of endorsements and the problems they present are discussed in more detail below. A less used form is the ISO form “Owners and Contractors Protective Liability Coverage Form- Coverage for Operations of Designated Contractor” (OCP or Owner’s Protective). The name would seem to indicate that it is coverage that should be used for construction projects. However, the coverage pro- vided under the Owners Protective is even more limited than the coverage of an additional insured on a CGL policy. An Owners Protective policy should not be confused with an Owner Controlled Insur- ance Policy (OCIP), which is more fully discussed in Section III.F of this digest. An Owners Protective policy is a protective liability policy, which is typi- cally purchased by a contractor for the sole benefit of another person or organization. The person or orga- nization purchasing the Owners Protective policy will pay the entire premium, but the purchaser receives no real benefit from the purchase of the policy (other than to satisfy some contractual obliga- tion on a project). A project owner typically is only protected by an Owners Protective policy in two sit- uations: 1) if the owner is vicariously liable for the actions of the general contractor; or 2) if the owner is directly liable for the acts or omissions in the gen- eral supervision of the operations of the general contractor. Many CGL policies define who has insurance either under a section commonly titled “Who Is An Insured” or by endorsement. The determination of coverage for additional insureds is usually found in the endorsement. Endorsements can be written to provide additional insured coverage on either a scheduled basis (where the additional insured is listed on the endorsement itself) on the declarations page, or on a blanket basis where the additional insured designation is required by specification or other contract provision. There has been much liti- gation over the interpretation of the forms, as they determine the amount and nature of the coverage. A large body of case law addresses variations of these forms and how the courts interpret them. A full analysis of case law is beyond the scope of this work.9 This digest’s focus is primarily for use in under- standing some of the more commonly used forms and terms, and options for future contracts. The scope of protection afforded to an additional insured is typically found first by looking at an endorsement to a CGL, referred to as a “Contractor’s” endorsement or “Additional Insured” endorsement. The language can vary substantially, but common lan- guage including such terms is noted in the following: “Additional insured is any person or organization, called an additional insured, whom you are required to add as an additional insured due to a written con- tract or agreement relating to your business.” Additional insured provisions also typically include a number of limitations as follows: “In order to be an additional insured, the written agreement or contract must be: 1) in effect during the term of this policy, and 2) executed prior to the bodily injury, property damage, personal injury, or advertising injury giving rise to a claim under this policy.” The policies also typically limit additional insured coverage by stating that the person or organization 8 But see Western World Ins. Co. v. Penn-Star Ins. Co., No. 07-CV-604, 2009 U.S. Dist. LEXIS 75595, at *1 (S.D. Ill. Aug. 25, 2009). 9 For more information on this topic, reference can be made to donaLd s. MaLeCki & JaCk P. Gibson, the addi- tionaL insUred book (Int. Risk Mgt. Inst., 5th ed. 2004).

11 is an additional insured with respect to (or in some cases only with respect to): 1) “premises you own, lease, or occupy”; or 2) “your work for that additional insured.” Most policies and endorsements define the terms “your work,” but even with definitions included in the policy, they can be subject to a wide variety of interpretations. There are often exclusions within the policy or endorsements, which provide that the insurance does not apply to “property damage”: That particular part of real property on which you or any of your contractors or subcontractors working directly or indi- rectly are performing operations, if the ‘property damage’ arises out of those operations; or That particular part of any property that must be restored, repaired, or replaced because ‘your work’ was incorrectly performed on it. 1. Typical Disputes A common dispute in litigation involves a claim or lawsuit arising out of a construction project. The question normally is whether the additional insured is entitled to a defense of the claims under the poli- cyholder’s policy. While most states hold that the duty to defend is broader than the duty to indem- nify, states can often be left “holding the bag” so to speak for months, if not years, before coverage issues are decided. A carrier may outright deny coverage, provide coverage pursuant to a reservation of rights agreement, and/or file a declaratory judgment action seeking a determination by the court as to whether coverage is afforded under the policy. There can be protracted and expensive disputes involving coverage for claims and lawsuits at the time of the injury, fatality, or property damage within the construction project. Disputes revolve around the interpretation of the following phrases: a) what is considered to be “arising out of” the work of a contractor; b) how to determine property when referring to “that particular part of” property; c) what is considered to be “your work”; and d) what are ongoing operations. Courts frequently consider how to define these phrases and a voluminous body of caselaw has emerged that defines these terms of art. More information on the precise definitions of these terms and how courts have interpreted them over the years can be found in the following pages. a. Arising Out of.—As to the definition of “arising out of,” many states hold that proximate causation is not necessary in order for there to be coverage so long as the liability is coincident or related to the actions of the named insured.10 The Arkansas Supreme Court held in 2003, after substantial liti- gation, that “arising out of” does not require proxi- mate cause; only a causal connection.11 Likewise, in Vitton Const. Co. v. Pac. Ins. Co.,12 there was signifi- cant litigation regarding coverage before the court ultimately concluded that “arising out of broadly links a factual situation with the event creating lia- bility, and connotes only a minimal causal connec- tion or incidental relationship.”13 Other jurisdic- tions, such as Texas, interpret the additional insured endorsement to provide coverage to the additional insured so long as there is a causal connection between the named insured’s work and the addi- tional insured’s liability for damages.14 Where there is no requirement that there be proximate cause with the actions of the named insured, there is a good argument to be made that if the incident occurred while the contract between the state and contractor was in place and the named insured has engaged in some relevant activity, then coverage applies.15 However, that being said, the state and contractor can still end up in a significant dispute with the insurance carrier as to whether the state is entitled to a defense if suit is filed, thus potentially putting the state in a position of having to expend significant amounts for defense before coverage is actually determined. b. Particular Part of Property.—Some litigation involves disputes over what is considered “a particu- lar part” of property. While many cases have addressed the issue of what is considered work performed on a particular part of property, insurance carriers may still engage in litigation before coverage is deter- mined.16 In Columbia Mut. Ins. Co. v. Schauf,17 the court noted that the exclusion for property damage to that particular part of the property upon which oper- ations are being performed applies to the “property on which the insured is performing operations, not 11 Hishaw v. State Farm Mut. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (Ark. 2003). 12 110 Cal. App. 4th 762, 2 Cal. Rptr. 3d 1 (Cal. Ct. App. 2003). 13 Id. at 767. 14 See Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451 (Tex. App. 1st District 1999). 15 See ALan d. windt, insUranCe CLaiMs and disPUtes: rePresentation of insUranCe CoMPanies and insUreds § 1130, at 11-478 (West, 5th ed. 2009); PhiLLiP L. brUner & PatriCk J. o’Connor, Jr., brUner & o’Connor on Con- strUCtion Law § 11.155 (West 2010). 16 Drubow v. Mike Check Builders, Inc., 442 F. Supp. 2d 676, 681 (E.D. Wis. 2006). See also Standard Const. Co. v. Maryland Cas. Co., No. 01-2006N, 2002 U.S. Dist. LEXIS 26650 (W.D. Tenn. 2002). 17 967 S.W.2d 74 (Mo. 1998). 10 Taurus Holdings, Inc. v. United States Fidelity & Guaranty Co., 913 So. 2d 528 (Fla. 2005).

12 the area in which the insured is performing opera- tions.”18 In Transp. Ins. Co. v. Piedmont Construction Group, LLC,19 the insured contracted to renovate a dormitory and when the plumbing subcontractor negligently ignited wood scrap, the entire dormitory was damaged. The carrier claimed that because the contractor’s renovation contract was for the dormi- tory, coverage for the entire loss was excluded. The court disagreed with the carrier, finding that “partic- ular part” of the property applied only to the area in which the plumbing subcontractor was working at the time the fire was started, not the entire building. To hold otherwise would render the entire policy illu- sory.20 Similarly, in Western World Ins. Co. v. Penn- Star Ins. Co.,21 in finding that the property exclusion did not apply, the court noted that the injured parties were not the individuals for whom the contractor’s work was being performed, and thus broadly con- strued the exclusion in favor of the insured. c. Your Work.—Many policies define “your work” as “[w]ork or operations performed by you or on your behalf; (and/or) [m]aterials, parts or equipment fur- nished in connection with such work or operations.”22 While such language may seem to be without much room for interpretation, it can result in questions relating to the scope of the work, whether the opera- tions were completed at the time of the incident, and whether the claims themselves constitute an occur- rence sufficient to trigger coverage. In Brinkmann v. Amerisure Ins. Co.,23 Brinkman and JDN Develop- ment entered into a contract for Brinkmann to per- form site work on a shopping center. The site work consisted of excavation, rough grading, and asphalt paving. Brinkmann hired two subcontractors, Pillari and Trap Rock, to perform the site work. JDN ulti- mately sued Trap Rock, complaining of defective asphalt work and other defects. Trap Rock filed a third-party complaint against Brinkmann for indemnity or contribution. Brinkmann forwarded the third-party claim to its carrier, Amerisure. Amerisure ultimately denied coverage to Brink- mann, stating in part that there was “no occurrence” because the only damage was to the concrete itself, which was designed by a subcontractor. The court held that the claims against Brinkmann were not limited to Brinkmann’s own work, and thus required Amerisure to provide a defense. d. Ongoing Operations.—Many additional insured endorsements in construction contracts include lan- guage amending the ISO GCL, Section II, Who is an Insured clause, to provide that the definition is amended as to Who is an Insured,24 “but only with respect to liability arising out of your ongoing opera- tions performed for that insured.” Carriers have taken the position that coverage for the additional insured exists only if the claim arose out of the addi- tional insured’s operations and was discontinued when the operations were complete. For example, in the case of Carl E. Woodward v. Acceptance Indem- nity Ins.,25 Woodward, the general contractor, had entered into a subcontract with DCM Corporation for concrete work on a condominium project. Woodward was an additional insured on DCM’s policy. DCM worked on the project for several months in 2006, but the project was not completed until 2007. The condo- minium association sued the general contractor and others claiming faulty construction, primarily due to the concrete work. The general contractor tendered the defense to the subcontractor’s carrier. The court upheld the carrier’s denial of coverage, stating in part that the liability did not arise out of the subcontrac- tor’s ongoing operations. Instead, the breach arose from the completed construction. Since the contractor was not an additional insured for completed opera- tions, there was no coverage under DCM’s policy for the claims against Woodward. There are many other cases that focus on differ- ent aspects of the language “ongoing operations.” In Valley Ins. Co. v. Wellington Cheswick,26 a condomin- ium association sued the owner, developer, and gen- eral contractor for faulty construction. The subcon- tractors were required to name the owner, developer, and general contractor as additional insureds under the subcontractor’s CGL policy. The court declared that ongoing operations, which were not specifically defined in the policy, meant “simply those things that the company does”27 and even though the prop- erty damage “may not have occurred during these ongoing operations, the liability did.”28 Thus, the owner, developer, and general contractor were found to be covered as additional insureds. Similarly, in BP 18 Id. at 81. 19 301 Ga. App. 17, 686 S.E. 824 (Ga. App. 2009). 20 Id. at 828. 21 Case No. 07-CV-604, 2009 U.S. Dist. LEXIS 75595 (S.D. Ill. Aug. 25, 2009). 22 See Dale K. Forsythe and Scott W. Stephan, “Your Work” Exclusions in CGL Policies, http://www.waymanlaw. com/pdffiles/Your%20Work%20CGL%20Exclusions.pdf. 23 Case No. 4:11cv1125, 2012 U.S. Dist. LEXIS 170199 (E.D. Mo. Nov. 30, 2012). 24 See National Ground Water Association, Sample CGL Section II form, http://www.ngwa.org/documents/ insurance/ngwasamplegeneralliabilityform.pdf. 25 743 F.3d 91 (5th Cir. 2014). 26 Case No. C05-1886, 2006 U.S. Dist. LEXIS 81049 (W.D. Wash. Oct. 20, 2006), vacated on other grounds (2007 U.S. Dist. LEXIS 38072 (May 24, 2007)). 27 Id. at *20, citations omitted. 28 Id.

13 Air Conditioning Corp. v. One Beacon Ins. Group,29 the court found that since the injury or damage was incurred “in the course” of operations, coverage was available to the additional insured.30 The Woodward case and other cases emphasize the need to ensure that there is proper coverage for both ongoing opera- tions and completed operations. 2. Recent ISO Changes ISO is the far most common type of form used in commercial insurance policies, and there have been many versions of such forms over the years for addi- tional insureds. All of the versions of the forms are beyond the scope of this digest, but some common provisions are discussed herein. As previously men- tioned, ISO made significant changes to several addi- tional insured forms in 2013, most of which went into effect for policies written on or after April 1, 2013. The full impact of the form changes had not been deter- mined at the time of this publication. However, one of the more important provisions in the 2013 ISO forms is an indication that that privity of contract will not be required in order for the state to take advantage of the additional insured provisions.31 Many additional insured endorsements provide that a person who is performing work for a named insured will be an additional insured when “you and such person have agreed in writing that such person or organization is an additional insured.”32 In the past, problems have arisen when a subcontractor has agreed to add the general contractor as an additional insured on its policy where there is no written agree- ment between the subcontractor and the general con- tractor. In that situation, the addition by the subcon- tractor’s carrier of the general contractor as an additional insured may have no effect because there was no written agreement between the subcontractor and the state, or no written agreement between the subcontractor and the general contractor. As noted above, one of ISO’s new forms, “Addi- tional Insured—Owners, Lessees or Contractors— Automatic Status for Other Parties When Required in Written Construction Agreement,”33 provides additional insured protection to any person or orga- nization that the named insured is required by written contract or agreement to name as an addi- tional insured under the named insured’s policy. While this endorsement helps to clear up the privity of contract issue, it does not eliminate other policy exclusions or limitations that may apply, thus rais- ing the possibility that protracted litigation will be needed before there is a determination as to whether coverage is in fact available for a particular claim. There is also concern that the 2013 ISO forms will require a more extensive analysis of the under- lying contract to determine the full extent to which the policy will provide coverage based on the terms and conditions in the underlying contract. This can be a concern where the underlying contract is not clear as to the scope of the work, indemnity, and the like. A side-by-side comparison of the 2013 forms to the earlier forms can be found in Appendix D. It should be noted that ACORD®’s “notes of use” for its forms specifically state that old forms should not be used as they are not updated to comply with new state and other legislative requirements.34 3. Professional Liability Issues Another issue that has generated substantial liti- gation for additional insureds is whether coverage is available for claims arising out of acts, errors, or omissions relating to the rendering of professional services, which will often be applicable to design pro- fessionals such as engineers.35 Most CGL policies exclude coverage for liability arising out of the ren- dering of acts, errors, or omissions relating to the execution of professional services. Thus, if a claim arises from an accident where someone has claimed that a construction design caused or contributed to the cause of the accident, it is possible that no cover- age may be afforded even where the proposed insured is named as an additional insured under a general contractor’s policy. However, some courts have held that in determining whether coverage is excluded, courts should not look at the title or character of the person performing the work, but rather the act itself, thus opening up the possibility of coverage.36 29 33 A.D.3d 116, 821 N.Y.S. 2d 1 (2006). 30 Id. at 121. 31 Pence & Wright, supra note 7. 32 See Carolyn L. Morehouse, Changes to Standard CGL Insurance Forms Impact Coverage for the Construction In- dustry, ConstrUCtion Law Corner enewsLetter, Fall 2013. 33 ISO form (CG 20 38 04 13), see Robert J. Marshburn, New Additional Insured Forms Required Contract Revi- sion, Feb. 2014, paper available at http://parma.com/sites/ default/files/files/pdf/e6_insurancewithbobmarshburn.pdf. 34 See ACORD Certificates, Frequently Asked Ques- tions, https://www.acord.org/standards/forms/documents/ acordcertificatesfaq_201004.pdf (last visited Jan. 30, 2015). 35 Cf. Aetna Fire Underwriters Ins. Co. v. Southwest- ern Engineering Co., 626 S.W.2d 99, 101 (Tex. App. 1981) (There was a contract for placement of phone lines, and a firm contracted with a company to do excavation work, in- cluding the identification of lines. The court held the pro- fessional services exclusion, which excluded “engineering services,” was inapplicable because the acts of digging and locating lines did not involve the specialized application of engineering skills and services). 36 See Marx v. Hartford Acc. & Indemnity Ins. Co., 183 Neb. 12, 13, 157 N.W.2d 870, 871–72 (1968); Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 984 (3d Cir. Pa. 1988).

14 Other courts have held that the professional ser- vices exclusion is not applicable to claims of negli- gent hiring or supervisions.37 In revising its profes- sional liability endorsements in 2013, ISO added language that the professional liability exclusions arise “even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training, or monitoring of oth- ers caused by that insured”38 as long as the occur- rence that caused the damage involved the render- ing of professional services. This type of language could lead to protracted disputes about coverage, and again calls into question whether CGL coverage alone is sufficient coverage for many construction projects. The professional liability coverage issue is of par- ticular interest to state agencies in the context of design and construction plans. When an agency develops its design plans in-house, a traffic control plan may be contained in the plans to provide guid- ance for traffic for the contractor during various phases over the course of the project. The contractor likely cannot deviate from the provided traffic con- trol plan without specific written permission from the agency. If an accident occurs within the work zone, and the provided traffic control was imple- mented, the contractor is likely to defend the case stating that it simply used the traffic control plan that was provided, and that it deferred to the exper- tise of the agency. In Harlan v. APAC,39 APAC was the prime contractor on a pavement overlay job where plaintiff Harlan was injured when he changed lanes on the highway. Harlan contended that addi- tional signing should have been used to warn travel- ers of the difference in pavement elevation. APAC’s defense was that they complied with the plans pro- vided by the state. The court found that the contrac- tor had an independent duty to provide a reasonably safe roadway for the traveling public, and denied APAC’s motion for summary judgment, stating that the contractor must exercise its own judgment when evaluating the safety of the traffic control plan and the safety of the construction zone. In Harlan, the issue of professional liability insurance was not reached since the design plans were not prepared by a consultant, but by an engineer employed by MoDOT. If the facts had been changed just slightly and the traffic control plan designed by a consultant, the defendant contractor would almost certainly have brought the design consultant into the suit. The authors observe that CGL coverage alone, whether written under ISO or otherwise, does not appear to be sufficient for most construction proj- ects. In order to adequately address potential claims, states either have CCIP, OCIP, or a CGL with mul- tiple insuring endorsements for a particular project. Part of the problem with requiring many types of coverages beyond just a CGL is that general con- tractors or subcontractors may not be able to acquire such coverage, or even if they can, it may be prohibi- tively expensive. In addition, having several types of insurance in place for many different contracts can raise a host of other issues, such as which coverage may be primary, what may be excess, and whether pro-rata sharing of defense and indemnity is required. Given these issues, the authors have included commonly used provisions for construction contracts that have helped to alleviate the concerns about further restrictions in the 2013 forms. More information on alternative language may be found in Section V of this digest. B. Duty to Defend, Indemnify, and Provide Insurance An indemnification or “hold harmless” agreement is a contractual arrangement where one party to a contract assumes the liability inherent in the activity, thus relieving the other party of legal responsibility for that activity. The obligation to indemnify is inde- pendent of and separate from the obligation to pro- vide insurance coverage. An agreement to insure is simply “an agreement to provide both parties with the benefit of insurance regardless of the cause of the loss (excepting wanton and willful acts).”40 An agree- ment to insure is different from the agreement to indemnify in that when an agreement to insure is used, “the risk of loss is not intended to be shifted to one of the parties,”41 but to the insurance company. Indemnity, as compared to insurance, provides for 37 See National Fire. Ins. Co. v. Lewis, 898 F. Supp. 2d 1132 (2012) (involved professional liability of a doctor, but court said claims were “intertwined” and thus profes- sional liability exclusion not applicable); Capitol Indem- nity Corp. v. Especially for Children, Inc., Civ. No. 01-2425, 2002 U.S. DIST. LEXIS 17121, Aug. 29, 2002 (issue of day care provider’s right to coverage where there was a pro- fessional liability exclusion; court held that most look at the separate claims and what conduct is really at issue, and ultimately concluded exclusion inapplicable); Trans- con Ins. Co. v. Caliber One Indemnity, 367 F. Supp. 2d 994 (2005) (must look at nature of act alleged); see also steven PLitt, JoshUa d. roGers, danieL MaLdonado, Jordan PLitt, Lee r. rUss, thoMas f. seGaLLa, CoUCh on insUranCe, Sec- tion 101.60 (West Group, 3d ed. 1997). 38 See Exclusion–Contractors–Professional Liability, Commercial General Liability Endorsement form CG 22 79 04 13. 39 360 S.W. 3d 826 (Mo. App. 2011). 40 Indiana Erectors, Inc. v. Trustees of Indiana Univer- sity, 686 N.E.2d 878, 880 (Ind. App. 1997). 41 Id.

15 protection of one party from third-party claims, and is an obligation of the company whether or not the com- pany’s insurance carrier decides to cover a loss. The indemnity obligation may even include the negli- gence of the indemnitee itself.42 Some states allow for limited indemnity only, providing for an indemnitor to protect the other party to the contract from third- party claims only to the extent of the indemnitor’s negligence. Many state courts have construed anti- indemnification laws to invalidate agreements to pro- cure insurance for another party’s negligence.43 Other states still allow broader indemnity agreements. It is important to have both hold harmless and additional insured language in the construction contract or specifications because if the insurance company denies coverage for a particular event, the contractor can still be held responsible for an accident or injury due to the indemnification obligation. CGL policies normally include at least two liabil- ity-related responsibilities of the insurer: the duty to defend and the duty to indemnify. Courts frequently state that the duty to defend is broader than the duty to indemnify. What that means is the insurer must hire legal counsel to defend the insured against a covered suit, even if coverage for the underlying claim may not exist. Additionally, the duty to defend includes a responsibility to cover all legal fees and costs. If a policyholder, or a state agency with addi- tional insured or a named insured status under the policy, is faced with a covered third-party claim, the insurance carrier must defend the claim. If the facts support the basis of the claim, the carrier will also have a duty to pay any monetary award entered against the insured for covered claims. Disputes over whether a claim triggers an insur- er’s duty to defend are common. Coverage issues often include items such as whether the insurance is primary (discussed below in more detail), whether the damage or injuries occurred during a covered time period, or whether the damage or injury arose out of the contractor’s activities. However, many courts have noted that the duty to indemnify is com- pletely separate from the duty to defend, and “[t]o extricate itself from a duty to defend a suit against the insured, the insurer must demonstrate that there is no possibility of coverage.”44 An insurer will generally not be able to recover the cost of defending any claim from the insured even if it defends the claim and later proves that the allegations were not covered by the policy.45 The bur- den is on the insurer to prove which of the specific defense costs were allocated to the covered claims versus noncovered claims, if it seeks repayment of costs from the insured. When the insurance carrier refuses to provide a defense, it is opening itself up to a claim of bad faith by the policyholder (generally the contractor) or other named insureds under the policy (such as the state). A claim of bad faith may be made when the insurer unreasonably breaches the insurance policy, i.e., fails to defend its insured, and denies coverage without a reasonable belief that the underlying suit is not covered. In most jurisdictions, if an insurer fails to provide a defense that it was contractually obligated to provide, it will be found to have breached its obligations to the insured and may be held liable for all damages that normally would be expected to flow from that breach.46 This naturally includes pay- ment of defense costs, attorney fees, and any judg- ment that resulted from the failure to defend. C. Breach of Contract There is no bright line rule to determine when a contractor has breached a construction contract, nor when the governmental agency is actually harmed by the alleged breach. “Breach of contract” is a term of art that means a party has failed or refused to per- form all or part of an agreement. It may be difficult to tell when a contract has been breached. For instance, in a situation where a contractor allows insurance to lapse and the coverage was intended by the parties to be in effect for a number of years after a job is com- pleted, the agency will likely never know of the breach if a claim is not made against the policy. The question of when the breach, or the harm, occurred is very important because of the statute of limitations. Tort and contract actions can only be filed for a certain period of time, depending on the jurisdiction, after a negligent act or contract breach. Consider a situation where a contractor is required to have coverage for products-completed operations for at least 1 year after completion of the work, naming the agency as an additional insured. If the work is completed before the end of the year, and an incident occurs more than a year later, there may not be any breach. In LaMorte v. City of New York,47 Roadway Contracting, Inc., had a contract with Consolidated Edison Company of New York 42 See Waterwiese v. KBA Construction Managers, Inc., 820 S.W.2d 579 (Mo. App. 1991). 43 See, e.g., BP Chemicals, Inc. v. First State Insurance Co., 226 F.3d 420 (6th Cir. 2000). 44 Interstate Bakeries Corp. v. OneBeacon Ins. Co., 686 F.3d 539, 543 (8th Cir. 2012). 45 See Sherwood Brands, Inc. v. Hartford Acc. & Index. Co., 698 A.2d 1078, 1083 (Md. 1997). 46 See, e.g., American Casualty Co. of Reading, PA v. Health Care Indemnity, Inc., 613 F. Supp. 2d. 1310, 1323 (M.D. Fla. 2009). 47 107 A.D.3d 437, 967 N.Y.S.2d 331 (2013).

16 from December 2000 to December 2002. The specifi- cations required Roadway to have products-com- pleted operations coverage for at least 1 year after completion of its work. Roadway was discharged from services on January 2001 because of claimed poor performance. A bicyclist sustained an injury in May 2002 due to claimed improper work by Road- way. The court held there was no breach because Roadway had in fact met its contractual require- ments. Its work was completed when it was termi- nated in January 2001, and it maintained the insur- ance until January 2002. Since the bicyclist was injured in May 2002, there was no coverage for the agency, and thus no breach. 1. Physical Injury Another problem that may be encountered in determining when or whether a breach has occurred is whether there is actual damage as a result of the work performed by the contractor. Most CGL poli- cies contain a provision that coverage is not trig- gered unless there is physical injury to property such as a change in the shape, size, color, or other material dimension, rather than just an economic loss. In Travelers Insurance Co. v. Eljer Manufactur- ing, Inc.,48 the insured manufacturer of the Qest Qick/Set II (Qest) polybutylene plumbing system sought coverage for the costs of replacing leaky plumbing systems, including plumbing systems installed in homes where the systems were replaced prior to the development of an actual leak. The dam- ages sought against the insured manufacturer were the costs of replacing the system and diminution in value of the homes. The Illinois Supreme Court con- cluded that the mere installation of the Qest plumb- ing system, without some physical injury to the home itself, did not constitute an alteration in appearance, shape, color, or other material dimen- sion. Therefore, there was no property damage and no coverage. This type of situation can be particu- larly problematic to agencies that have to expend significant costs to repair or replace property on which a contractor failed to properly perform ser- vices, and yet could be left without coverage because it is merely viewed as an economic loss.49 2. Occurrence Versus Claims-Made Policies Most policies carried by general contractors per- forming construction for state agencies are occur- rence policies rather than claims-made policies, as the occurrence policies are easier to administer and provide more certain coverage. The two types of poli- cies are quite different. In fact, most states specifi- cally required occurrence policies instead of claims- made policies. Occurrence coverage is insurance that provides coverage for the act when it occurs—regard- less of when it is reported. Occurrence policies need only to be in effect on the date that an accident caus- ing damage occurs in order to trigger coverage. A claim asserted against the insured may be brought well after the accident. Coverage would then revert back to the policy that was in effect at the time of the accident. Contrast the claims-made policy, which cov- ers claims made during the policy period, regardless of when the negligence or damage occurred. As the name indicates, claims-made policies provide cover- age for claims made during the time the policy is in force. However, claims-made policies provide cover- age only so long as the insured continues to pay pre- miums for the initial policy and any subsequent renewals. Once the contractor stops paying the pre- mium, coverage stops for any claims not known or made to the insurance company during the coverage period. A state with a claims-made policy therefore runs the risk of an unknown or unreported claim being made, but not covered because the claim was made outside of the coverage period. To continue cov- erage after the coverage period, the contractor must purchase a tail. Tail coverage (or the Extended Reporting Endorsement) is an endorsement that extends the claims reporting period after the policy is ended. Tail coverage must be purchased to continue risk protection afforded under the policy. This type of coverage is fairly impractical for a state agency. As odd as it seems, there can be litigation over when an injury or harm occurred in the context of whether an accident occurred within the policy period. That issue has been litigated several times, with one of the most extensive disputes in South Carolina. In Bowman v. Standard Fire Ins.,50 the plaintiffs claimed injuries due to an accident involv- ing an accumulation of water on a highway that they alleged had been improperly constructed. The accident occurred in March 1998, several years after the construction was completed in 1990. The court in Bowman examined ISO forms from 1973 and 1985, as well as the carrier’s own form, in determin- ing whether there was coverage for the claim, even- tually finding in favor of the insurance company and denying coverage for the claims based on the lan- guage of the policy. Coverage questions regarding when the harm occurred could be further complicated by the 48 197 Ill. 2d 278, 757 N.E.2d 481 (2001). 49 See also Vernon Williams & Son Const. Co. v. Conti- nental Ins. Co., 591 S.W.2d 760, 764 (Tenn. 1979); Stan- dard Construction Co. v. Maryland Cas. Co. No. 01-2006V, 2002 U.S. Dist. LEXIS 26650 (W.D. Tenn. May 15, 2002). 50 397 F. App’x. 886 (4th Circ. 2010).

17 application of indemnity agreements in conjunction with the contract indemnity provisions, often result- ing in protracted and complicated litigation.51 3. Failure to Provide Insurance in Compliance with DOT Specifications Many times, when refusing coverage, an insur- ance company will state that the coverage requested or demanded is excluded by endorsement or other language found in the policy. This response actually gives rise to the agency’s claim for breach of contract against the contractor: the contractor is required by its contract with the agency to procure the coverage outlined in the specifications, and the carrier’s denial of coverage shows that the contractor has breached its contract with the agency. In that situa- tion, the contractor potentially has a cause of action against the insurance agent and the state has a cause of action against the contractor.52 An agent or broker can be liable for negligent procurement of insurance when “with a view to compensation,” he (or she) undertakes to provide insurance and negli- gently fails.53 This is because an agent or broker owes a fiduciary duty of care to the insured.54 If an insurance company fails to comply with the state’s specifications and therefore fails to provide the required coverage for the contractor, the covenant to provide insurance has clearly been breached. Cases in which an insurance agent has breached a duty to procure insurance generally refer to the cause of action based on a claim of negligence, although some courts have determined that the action is properly based in contract law.55 A state may be able to file an action against the insurance company for failure to procure insurance on its behalf pursuant to a privity argument or language in the specifications.56 The survey results and research reveal that it is important to anticipate the potential liability situa- tions that may arise, including negligence of all par- ties, professional liability, and failure to properly implement the provisions of the contract. In fact, due diligence requires a thorough and thoughtful review of potential issues. Once all the risks are assessed, the agency can obtain appropriate cover- age at the beginning of the contract period to avoid the possibility that there will not be any available recovery at all in the event of a loss, whether from pursuing a breach of contract claim against a con- tractor, or pursuing one against the carrier. D. Waiver of Sovereign Immunity Several courts have considered whether a waiver of sovereign immunity occurs when a contractor purchases insurance on behalf of the agency or adds the agency as an additional insured or additional named insured. Multiple state courts have held that the legislature or general assembly is the only entity with authority to waive sovereign immunity on behalf of the state.57 Similarly, “a municipality can- not waive its immunity unless it has explicit statu- tory authority to do so.”58 Multiple state courts have held that postjudgment interest is not subject to sovereign immunity.59 While some state courts have held that sovereign immunity is not waived by the purchase of insur- ance, other states allow a waiver under some condi- tions. In order to address that potential problem, a statement could be made in the standard specifica- tion that sovereign immunity is not waived. Addi- tionally, protection of the state’s sovereign immunity caps can potentially be accomplished if the contrac- tor’s insurance policy clearly states that sovereign immunity is not waived by the purchase. In Parish v. Novus Equities Company,60 the issue before the court was whether procurement of liability insur- ance waived sovereign immunity for alleged eco- nomic damages to the plaintiffs. The court stated, “a public entity retains its full sovereign immunity when the insurance policy contains a disclaimer stating that the agency’s procurement of the policy was not meant to constitute a waiver of sovereign immunity.”61 The Parish court further noted that coverage would not be available to the plaintiffs in 51 See Capitol Environmental Services v. North River Ins. Co., 778 F. Supp. 2d 623 (E. Dist. Va. 2011). 52 See Lopez v. Hartford Acc. and Indemn. Co., 495 So. 2d 375 (La. App. 3d Cir. 1986). 53 Alldredge v. Allstate Ins. Co., No. 4:14-CV-1186, 2014 U.S. Dist. LEXIS 99771, at *8 (N.D. Ala, July 23, 2014). 54 See Aden v. Fortsh, 169 N.J. 64, 776 A.2d 792 (N.J. 2001). 55 See McAlvain v. General Insurance Co. of America, 97 Idaho 777, 554 P.2d 955 (1976). 56 See, e.g., Vargas v. N.Y. Transit Auth., 60 A.D.3d. 438, 874 N.Y.S.2d 446 (2009). 57 See Georgia Dep’t of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 755 S.E.2d 184 (2014); Edmonson County v. French, 394 S.W.3d 410 (Ky. App. 2013), Lynch v. Dep’t of Transp., 2012 Ill. App. (4th), 111040, 979 N.E.2d 113 (2012 filed). 58 Fiat Motors of North America Inc. v. Mayor and Coun- cil of City of Wilmington, 498 A.2d 1062, 1068 (Del. 1985). 59 See Wilmer v. Board of County Commissioners of Leavenworth, Kansas, 916 F. Supp. 1079, 1080–81 (D. Kan. 1996), and Lienhard v. State, 431 N.W.2d 861, 862 (1988), where the Minnesota Supreme Court held that postjudgment interest could be paid above the State’s cap on tort damages. 60 231 S.W.3d 236 (E.D. Mo. 2007). 61 Id. at 246.

18 that action because the policy only covered tangible property, not economic losses. Similarly in Wright v. Gaston County,62 the insur- ance provision reviewed by the court read as follows: By accepting coverage under this policy, neither the insured nor States waive any of the insured’s statutory or common law immunities and limits of liability and/or monetary dam- ages (including what are commonly referred to as liability damages caps), and States shall not be liable for any claim or damages in excess of such immunities and/or limits.63 The court found that since the language of the applicable statute and the exclusion clause in the insurance contract were clear, sovereign immunity was not waived. The insured has the burden of show- ing exclusion to coverage, as noted in Manner v. Schiermeier,64 where the insurer relies on a policy exclusion as a basis for denying coverage. However, “it has the burden of proving that such an exclusion is applicable,” and the exclusion clause will be strictly construed against the insurer.65 Many jurisdictions provide that the procurement of insurance is a waiver of governmental immunity to the extent of the tort claim covered by the insur- ance policy. In Cunningham v. Riley,66 the court stated “a county may waive sovereign immunity by purchasing liability insurance, but only to the extent of coverage provided.”67 Other states hold that the waiver is not automatic upon the procurement of insurance unless provided in the insurance policy.68 Based on the holdings of the cases reviewed herein, and other similar holdings, the contractor’s insurance carrier should specifically state that sov- ereign immunity is not waived in the policy. The con- struction specification should also clearly articulate that sovereign immunity is not waived by the agency requiring insurance to be purchased on its behalf. E. Primary Coverage Coverage by the contractor must be primary and not “excess” or “secondary” to effectively protect the agency. The significance of primary coverage is that it provides the first layer of coverage to a person or entity. The specification and insurance policy should specifically set out that the contractor’s coverage is considered primary so that the contractor’s insurance is the first to cover any claim. If the contractor’s insur- ance is primary, it will be exhausted before any insur- ance carried by the state or any funds allowed due to a waiver of sovereign immunity are accessible to the parties. An umbrella, or excess policy, is used to pro- vide coverage above the underlying primary limits. CGL insurance is normally primary unless the policy expressly states that it is not primary cover- age. Only after primary coverage is exhausted, or it is determined that no underlying coverage exists, does the umbrella policy become primary and thus available to the insured party. If the state maintains any other insurance or self-insurance, it should be considered excess only and should not be used to contribute to or combine with other insurance. Coverage disputes sometimes arise among insur- ance carriers when multiple policies with multiple types of insurance have been purchased for a project and more than one policy is claimed to be primary or excess. To remedy this problem, the courts have adopted a rule that when competing policies carry similar “other insurance” clauses, the courts should disregard the clauses as being mutually repugnant and simply order all the insurers to share the loss. A primary insurer, thus, cannot use the “other insur- ance” clause to require an umbrella carrier to share in its liability.69 F. Owner Controlled Insurance Policies (OCIP) and Contractor Controlled Insurance Policies (CCIP) Both an OCIP and a CCIP, also known as a wrap up, have the same general premise: essentially, they are package policies that cover virtually every type of risk and liability for a particular construction project. These policy types have not been widely used, but are becoming more accepted as they con- sist of a single policy with a single insurer, and avoid the administrative and substantial legal problems that many persons and organizations on projects are having with their own insurance. Most package policies are written with large deductibles, and are typically used with projects that involve multiple years and millions of dollars. As the names indicate, OCIP is a package policy purchased by the owner of the property, while a CCIP is a package policy purchased by the general 62 205 N.C. App. 600, 698 S.E.2d 83 (filed 2010). 63 Id. at 89. 64 393 S.W.3d 58, 63 (Mo. 2013). 65 Sexton v. Omaha Prop. & Cas. Ins. Co., 231 S.W.3d 844, 848 (Mo. Ct. App. 2007). 66 169 N.C. App. 600, 611 S.E.2d 423 (2005). 67 Id. at 424. See also Pittsburgh Elevator Co. v West Virginia Board of Regents, 310 S.E.2d 675, 689 (1983), where the court stated “where recovery is sought against the State’ liability insurance the doctrine of constitutional immunity, designed to protect the public purse, is simply inapplicable.” The court limited plaintiff ’s recovery to the benefits of the insurance policy. 68 See McKenzie v. City of Florence, 234 S.C. 428, 108 S.E.2d 825 (1959); Reeves v. City of Jackson, 608 F.2d 644 (5th Cir. 1979). 69 LeMars Mutual Insurance Co. v. Farm and City Insurance Co., 494 N.W.2d 216, 219 (Iowa 1992).

TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 66: Due Diligence for Insurance Coverage in Transportation Construction Contracts explores the process of "due diligence," in which a transportation agency acquires objective and accurate information about its insurance companies and contractors in order to evaluate the risks of entering into an agreement and a contractual relationship. The report addresses the common issues faced by the agencies such as: proof of coverage; difficulty of interpretation of specification and insurance language; coverage disputes; lapse in coverage; and qualifying contractors for the bidding process.

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Dissertations / Theses on the topic 'Insurance law'

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Mahmood, Nik Ramlah Binti Nik. "Insurance law in Malaysia." Thesis, Queen Mary, University of London, 1988. http://qmro.qmul.ac.uk/xmlui/handle/123456789/28965.

Enright, Walter Ian Brooke. "Themes in insurance law." Thesis, University of Exeter, 2017. http://hdl.handle.net/10871/33899.

Bugra, Aysegul. "Delay in marine insurance law." Thesis, University of Southampton, 2014. https://eprints.soton.ac.uk/370454/.

Góngora, Luis Jorge. "Aviation insurance." Thesis, McGill University, 1998. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=21682.

Olubajo, Ahmed Tolulope. "The law of co-insurance policies." Thesis, University of Southampton, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.398829.

Ding, Jian. "Research on insurable interest in English and Chinese law of marine insurance." Thesis, University of Southampton, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.430530.

Corzo, de la Colina Rafael, and Mendoza José Villafuerte. "Great risk insurances and disproportionate protection of insured persons in insurance contract Law." IUS ET VERITAS, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/122964.

Chen, Sanming. "Subrogation in the law of marine insurance." Thesis, University of Southampton, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.340328.

Summer, Judith Penina. "Insurance law and the Financial Ombudsman Service." Thesis, University of Southampton, 2009. https://eprints.soton.ac.uk/67654/.

Zheng, Rui. "Fraudulent claims in commercial insurance law : a legal and economic analysis." Thesis, Swansea University, 2012. https://cronfa.swan.ac.uk/Record/cronfa42644.

MacNeil, Ian G. "Insurance contract law in the single European market." Thesis, University of Edinburgh, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.531109.

Seatzu, Francesco. "Insurance in private international law : a European perspective." Thesis, University of Nottingham, 2001. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.364461.

Njikam, Martha Simo. "Insurance law in England and Cameroon : a comparative study : with special reference to motor vehicle insurance." Thesis, University of Sheffield, 1986. http://etheses.whiterose.ac.uk/1852/.

Channon, Matthew Raymond. "Validity and effect of exclusion clauses against third parties in motor insurance." Thesis, University of Exeter, 2017. http://hdl.handle.net/10871/32099.

Aljallal, Arwa Ibrahim A. "The duty of good faith in insurance law : a study of Saudi law compared to English law." Thesis, University of Southampton, 2014. https://eprints.soton.ac.uk/370749/.

Han, YongQiang. "The relevance of Adams and Brownsword's Theory of contract law ideologies to insurance contract law reform : an interpretative and evaluative approach." Thesis, University of Aberdeen, 2013. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=201899.

Li, Miao. "Marine insurance brokers' duties and liabilities." Thesis, University of Southampton, 2012. https://eprints.soton.ac.uk/345558/.

Robineau, Matthieu. "Contribution à l'etude du système responsabilité : les potentialités du droit des assurances /." Paris : Defrénois, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/524590532.pdf.

Simmons, Sean. "The upshot for title insurance downunder /." [St. Lucia, Qld.], 2003. http://www.library.uq.edu.au/pdfserve.php?image=thesisabs/absthe17794.pdf.

Aric, Zuhal. "Research on open covers in English law of marine insurance." Thesis, University of Southampton, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.582529.

Omo-Eboh, Omogbai I. "Insurance law in Nigeria with particular reference to legislative intervention." Thesis, London School of Economics and Political Science (University of London), 1990. http://etheses.lse.ac.uk/1181/.

Olanipekun, Oladapo Olumide. "Banking regulation and deposit insurance : legal and comparative perspective." Thesis, Queen Mary, University of London, 2008. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1581.

Albalawi, Khalaf Mohammed. "A comparative analysis of takaful and conventional insurance, with a special reference to the Saudi insurance law." Thesis, University of Kent, 2017. https://kar.kent.ac.uk/60970/.

Botes, Johan Hendrik. "From good faith to utmost good faith in marine insurance /." Frankfurt am Main [u.a.] : Lang, 2006. http://www.loc.gov/catdir/toc/fy0709/2007416214.html.

Schoenbaum, Thomas J. "Key divergences in the law of marine insurance between English and American law : a comparative study." Thesis, University of Cambridge, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.270852.

Prinsloo, Adam. "The need to reform promissory warranties in South African insurance law." Diss., University of Pretoria, 2020. http://hdl.handle.net/2263/78884.

Ackerman, Eileen. "Microinsurance in the context of social protection : overcoming the barriers of economic growth and development." Diss., University of Pretoria, 2020. http://hdl.handle.net/2263/78866.

Koutsoubas, T. "The impact of the EEC law on the Greek insurance system." Thesis, University of Exeter, 1985. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.354260.

Berthiaume, Adèle. "No-fault automobile insurance and the conflict of laws." Thesis, McGill University, 1986. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=66123.

Shan, Jialing. "Aviation insurance under the modernization of Rome convention 1952." Thesis, McGill University, 2011. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=97227.

Mahfuz, Mahfuz. "A research to develop English insurance law to accommodate Islamic principles." Thesis, University of Manchester, 2013. https://www.research.manchester.ac.uk/portal/en/theses/a-research-to-develop-english-insurance-law-to-accommodate-islamic-principles(ba9df8a6-58e2-4506-b62e-431238740e73).html.

Deonandan, Nirvana. "Insurance warranties in South Africa: consideration of reform of the law on insurance warranties in South Africa and why there is a need for such reform." Master's thesis, Faculty of Law, 2019. http://hdl.handle.net/11427/31556.

Wang, Guijun. "Wilful misconduct of the assured and his servants in marine insurance." Thesis, University of Southampton, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.316300.

Jing, Zhen. "Fundamental principles of insurance contract law and practice in the People's Republic of China : a comparative study with English and Australian counterparts." Thesis, Queen Mary, University of London, 2001. http://qmro.qmul.ac.uk/xmlui/handle/123456789/25787.

Ballard, Martha Alicia Castenada. "The reform of insurance contract law for the protection of the consumer." Thesis, University of Nottingham, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.275941.

Ogis, Sinem [Verfasser]. "The Influence of Marine Insurance Law on the Legal Development of Life and Fire Insurance in England. / Sinem Ogis." Berlin : Duncker & Humblot, 2019. http://d-nb.info/1238487971/34.

Li, Chengming. "Essays on improving the regulation and supervision of insurance in PR China." Thesis, Queen Mary, University of London, 2003. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1810.

Akinyeye, Oluwole. "The menace of piracy and its effects on the marine insurance industry." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/12635.

Koosha, Aboutaleb. "Compensation and insurance in respect of pollution liability at sea." Thesis, University of Glasgow, 1994. http://theses.gla.ac.uk/3932/.

POTENZA, MARCO. "The Builders' risks insurance: a comparative study under English and Italian law." Doctoral thesis, Università degli Studi di Roma "Tor Vergata", 2008. http://hdl.handle.net/2108/671.

Söreskog, Jenny, and Jennie Spännar. "Försäkringsgivarens informationsplikt." Thesis, Örebro University, Department of Behavioural, Social and Legal Sciences, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-715.

Strojin, Anja. "The duty of utmost good faith and warranties in marine insurance : (a comparative analysis)." Thesis, McGill University, 2001. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=32814.

Khembo, Loness. "Decent work in Malawi: social security; extension of social insurance to all workers." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15174.

Ludescher, Tom. "Das gebundene Vermögen gemäss Versicherungsaufsichtsgesetz (VAG) /." Zürich ; St. Gallen : Dike, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016094506&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.

Krop, Filip. "Problematika pojistných podvodů v rámci pojištění automobilů v ČR." Master's thesis, Vysoká škola ekonomická v Praze, 2013. http://www.nusl.cz/ntk/nusl-199292.

Häggeborn, Elin. "Försäkringstagarens rättsliga skydd enligt lagen om försäkringsförmedling : The legal protection of the insurance taker according to the Law of Insurance Mediation." Thesis, Linköping University, Department of Management and Economics, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-6788.

Bakgrund: En försäkringstagare kan välja att antingen köpa en försäkring genom direkt kontakt med ett försäkringsföretag eller genom att anlita en försäkringsförmedlare som sköter upphandlingen av de försäkringar som försäkringstagaren önskar. Under det senaste decenniet har försäkringsförmedlarna kommit att utgöra en viktig del av försäkringsmarknaden och de omsätter stora ekonomiska värden i sin verksamhet. Mot denna bakgrund är det av stor betydelse att den lagstiftning som reglerar förmedlarnas verksamhet ger ett tillfredsställande kundskydd. Tidigare fanns endast lagregler beträffande försäkringsmäklare som var tvungna att agera oberoende av försäkringsgivarintressen. Den 1 juli 2005 trädde dock en ny lag i kraft, lagen om försäkringsförmedling (2005:405), som har ett vidare tillämpningsområde än den äldre lagstiftningen om försäkringsmäklare. Den nya lagen omfattar även bland annat sådana förmedlare som ingått avtal med försäkringsföretag att endast förmedla dessa företags försäkringar.

Syfte: Syftet med uppsatsen är att utreda om lagen om försäkringsförmedling erbjuder ett tillfredsställande kundskydd. För att undersöka denna fråga kommer en analys att göras av de skillnader som föreligger mellan det kundskydd som följde av lagen om försäkringsmäklare och det kundskydd som följer av den nya lagen om försäkringsförmedling. Förmedlarens roll som mellanman samt olika ersättningsmodeller för förmedlarens arbetsinsats kommer att granskas. Vidare är förmedlarens rådgivningsansvar, informationsplikt och skadeståndsansvar några av de ytterligare omständigheter som kommer att undersökas närmare.

Slutsatser: Det går att urskilja vissa helt nya bestämmelser i lagen om försäkringsförmedling som ökar kundens trygghet, exempelvis de nya reglerna angående förmedlarens informationsplikt och dokumentationsskyldighet. Även vissa andra regler som endast förtydligats eller förändrats i mindre grad ger ett förbättrat kundskydd. Tyvärr finns också förändringar i lagen som kan betyda en ökad osäkerhet och utsatthet för kunden, exempelvis förmedlarens möjlighet att alternera mellan olika förmedlingsroller. Att förmedlaren fortfarande kan ersättas genom provision kan också skada kundens förtroende för förmedlaren.

LI, CHUN-CHANG, and 李俊璋. "Case Studies on Insurance Fraud of Anamnesis-From the Criminal Law and Insurance Law." Thesis, 2016. http://ndltd.ncl.edu.tw/handle/81509967888729639928.

Pan, Wen-Chung, and 潘穩中. "Insurance Fraud Prevention from the Perspective of Insurance Law." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/89904647949592029943.

WANG, HAO, and 王顥. "EC COMPETITION LAW IN INSURANCE SECTOR." Thesis, 2006. http://ndltd.ncl.edu.tw/handle/57590861274299367156.

Chu, Yen-Ming, and 朱炎銘. "Liability Insurance of Construction Contractor─ based on the German Liability Insurance Law." Thesis, 2006. http://ndltd.ncl.edu.tw/handle/90549185805657965284.