An article by Daniel J. Struck and Neil B. Posner of Much Shelist, P.C. regarding Certificates of Insurance recently appeared in The National Law Review:
When entering into some types of contracts, you likely require that your business be named as an “additional insured” on the other party’s insurance policies. You might do this so that your insurance will not be depleted by defense and indemnification costs for losses for which you might be legally liable by virtue of your relationship to the other party, rather than due to your own direct negligence.
There are many situations in which it makes sense to be named as an additional insured. If you are a building owner, for example, you want to be an additional insured on the property and general liability insurance of your tenants in case one of them damages your building or an accident occurs involving a visitor. If you are a mortgagee, you want to be an additional insured on the property and general liability insurance of your mortgagors in case there is damage to the mortgaged property that reduces its value. If you are the owner or a contractor on a construction project, you want to be an additional insured on the general liability insurance of your contractors and subcontractors in case there is an injury to one of their employees. If you are a distributor or a retailer, you may want to be an additional insured on the insurance programs of the manufacturers of the products that you sell. Other examples abound. Despite the ubiquity of additional insured requirements, however, misconceptions about them are numerous.
Your efforts to protect your business cannot stop at simply including an additional insured requirement in your commercial contracts. Even the strongest possible additional insured provision does little good if the other party does nothing to secure your status as an additional insured with its insurers. Nor are your interests served if you do nothing to confirm that your business has indeed been named as an additional insured. In this context, trust is never a suitable substitute for concrete verification, and otherwise careful and responsible businesses are too often surprised because one of two very basic pre-conditions have not been met: (1) they never actually became additional insureds, or (2) there is no insurance in effect that provides coverage for a particular accident or loss. How is it possible that such basic conditions can trip up sophisticated businesses? And what can be done to avoid these pitfalls?
A Certificate of Insurance Is Not Insurance
It is not unusual that the only evidence of additional insured status is a form document—known as a certificate of insurance—that is usually prepared by the insurance broker for the named insured. The standard certificate of insurance generally states that the additional insured is an insured under the listed policy(ies) and that nothing in the certificate supersedes, changes or replaces what is contained in the identified policy(ies). All too frequently, certificates of insurance are collected, stored away and quickly forgotten. But a certificate of insurance does not create insurance coverage or confer status as an insured, nor is it part of an insurance policy.
Additional insured status is effectively conferred through an additional insured endorsement (i.e., an amendment to the terms of an insurance policy that is expressly incorporated into the relevant insurance policy). These amendments can take the form of an endorsement that specifically names a particular additional insured, or a general endorsement that identifies some class of parties as additional insureds.
If there is a dispute about whether the necessary additional insured endorsement was actually issued, the certificate will only be one of the factors that is taken into account. For example, if there is evidence that the insurer failed to act on a request to add an additional insured, the putative insured may be able to establish that it actually is an insured. If no endorsement was ever issued, and all the intended additional insured has is a certificate of insurance, the frustrated party may have a basis for a declaratory judgment claim against the insurer, as well as claims against the named insured and its insurance broker. But being forced to sue to establish insured status is not the same as being provided with a defense against an ongoing claim.
Here are a few best practices that a party can implement to help make certain its status as an additional insured is in place:
- At a minimum, always insist on receiving a copy of the relevant additional insured endorsement because this is the instrument that establishes its status. A certificate of insurance is not enough.
- An additional insured endorsement does not, however, state an insurance policy’s terms and conditions. In order to avoid being surprised by unexpected policy terms (e.g., a strict notice requirement or unfavorable notice of cancellation provisions), require a copy of the entire insurance policy under which you are an additional insured and be sure to read it.
- Retain additional insured endorsements and the relevant insurance policies for as long as there is any potential that claims triggering those policies might be made.
A Certificate of Insurance Does Not Necessarily Entitle You to Notice of Cancellation
When you require that you be named as an additional insured, is it reasonable to expect that your status will remain in effect throughout the stated term of the insurance policy? Not necessarily. For example, what if you are a landlord and there is a fire at a restaurant operated by a financially troubled tenant in one of your properties? Unknown to you, the first-party property insurance policy to which you are an additional insured was cancelled two months before the fire. You may still be able to recover under your own property insurance policy, but that will affect your loss experience.
In order to avoid such situations, additional insured provisions in commercial contracts often contain a requirement that the additional insured receive notice of a cancellation at the same time as the named insured. If your business, however, relies only on a certificate of insurance as proof of its status, you run a heightened risk of an unwanted outcome.
Certificates of insurance are form documents. The most recent version of the standard certificate of insurance—often referred to as an ACORD certificate—contains a change in its terms that has the potential to surprise unsuspecting additional insureds. The current form states that “should any of the above described polices be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions.” In contrast, the pre-2009 version provided that “should any of the above described policies be cancelled before the expiration date thereof, the issuing insurer will endeavor to mail…written notice to the certificate holder in the event the insurance policy is cancelled.”
On its face, the old ACORD certificate at least appeared to support the expectation that an additional insured should receive a notice of cancellation from the insurer. However, it was dangerous to rely on those terms because the certificate itself was not part of an insurance policy. Insurers regularly took the position that the ACORD certificate could not modify the terms of an insurance policy.
The new form, however, is even more problematic. The current ACORD certificate refers to the notice of cancellation provisions of the relevant insurance policy. If the relevant insurance policy provides that the only party entitled to receive notice of cancellation is the named insured, then the new ACORD certificate is not likely to support the argument that an additional insured is also entitled to receive notice of cancellation. It is all well and good that your commercial contracts require that you receive advance notice of any cancellation But remember that an insurer has no reason to know the terms of the contract between you and its insured. If you never insist on reviewing the actual additional insured endorsement and the relevant insurance policy, you have no way of knowing whether or not you are entitled to notice of cancellation from the insurer.
What can an additional insured do to make certain that it receives advance notice of the cancellation of an insurance policy? Following are some things you should consider and steps you can take to protect your interests as an additional insured:
- The preferred approach is to request that the insured have its insurer provide an endorsement stating that you, as an additional insured, are entitled to the same rights as the named insured in the event of cancellation. This can take the form of a separate endorsement or an amendment to an additional insured endorsement. Although you may receive pushback from the insured and its insurers, with suitable counsel and persistence, you may be able to obtain the requested endorsement.
- Your contractual additional insured provisions should be revised to reflect the foregoing requirements.
- If it is not possible to secure the requested notice provisions via endorsement, the best alternative is to require that the insured provide prompt notice of cancellation and/or regular confirmations that the relevant insurance remains in force.
Additional insured status is an asset that imposes certain obligations on the party enjoying that status. Furthermore, it should not be regarded as a “freebie” to be treated in a passive manner. It is important to take an active interest in securing and knowing your rights—or risk erosion of their value. Ultimately, to be sure that you have the additional insured protection that you expect consistent with your needs, consult with your lawyer and insurance broker before signing on the dotted line.
© 2012 Much Shelist, P.C.