Only Defense Costs Paid by Named Insured Satisfy the Self-Insured Retention
March 2010
Here is a recent case from California showing
the danger of being added as an additional insured (AI) on a subcontractor's
commercial general liability (CGL) policy that contains a self-insured
retention (SIR)
endorsement. A court could decide that, unless and until the named insured subcontractor
satisfies the SIR, the AI is not entitled to a defense or indemnity.
by
Rich Scislowski
IRMI
In Forecast Homes, Inc. v. Steadfast Ins. Co.,
No. G040876, 2010 Cal. App. LEXIS 172 (Jan. 12, 2010), a homebuilder used about
a dozen subcontractors to perform most of the work at a residential project
in California. The homebuilder required the subs to add it as an AI on their
CGL policies. After the project was complete, several homeowners sued the homebuilder
for construction defects. The complaints named only the homebuilder, not the
subs, and the homebuilder began defending itself.
When the homebuilder tendered the claims to Steadfast Insurance (the CGL
insurer for a group of subs), Steadfast denied coverage. The CGL policies under
which the homebuilder was claiming AI status contained two versions of an SIR
endorsement.
The revised version stated:
"[I]t is a condition precedent to our liability that
you [the named insured Sub] make actual
payment of all damages and defense costs for each occurrence or offense,
until you [the named insured Sub] have
paid" the full SIR amount.
"Payments by others, including but not limited to additional insureds or
insurers, do not serve to satisfy the self-insured retention."
The appellate court held that the language of the revised SIR endorsement
was clear and unambiguous. Only payments of defense cost by the named insured
subs could satisfy the SIR, not payments made by the AI homebuilder. The court
noted that the purpose of disallowing payments by other parties is to make sure
the named insured subs have "skin in the game" and retain a portion of the risk.
Allowing other parties to pay the SIR on behalf of the named insured sub would
defeat that purpose.
Because the named insured subs were not sued in the underlying construction
defect cases, they did not pay any defense costs. Because the named insured
subs did not satisfy the SIR amounts, the court decided the homebuilder's AI
coverage was never activated.
The original version of the SIR endorsement was similar, but it only had
one pertinent statement:
"[Y]ou [the named insured Sub] shall
be responsible for payment of all damages and defense costs for each occurrence
or offense, until you [the named insured
Sub] have paid" the full SIR amount.
The court held that this language was sufficiently clear so as to reach the
same result. Only payments of defense cost by the named insured sub could satisfy
the SIR, not the AI Homebuilder.
Also, the court rejected the homebuilder's argument that, because the revised
version of the SIR endorsement was amended to clearly prohibit payments by additional
insureds, the original version of the SIR endorsement must have been ambiguous
as to which party could pay defense costs. "It is against public policy," the
court wrote, "to view modification of the policy as creating a negative inference."
Conclusion
So, what could the homebuilder have done to better protect itself? The court
dropped a couple of hints. First, it noted that the insurance specifications
of the subcontract with each of the subs stated that "the required insurance
[provided by the subs] shall be subject to the approval of the [homebuilder]."
Second, it noted that the subcontract "specified in great detail the required
insurance policy language and coverage specifications" but that it "did not
require any specific language regarding ... SIR provisions."
It appears as if the court was hinting that the homebuilder should have addressed
the issue of SIRs in the insurance specifications. Perhaps the homebuilder could
have (1) prohibited SIRs completely, or (2) required that any SIR attached to
a sub's CGL policy be amended to (a) exempt the AI coverage from the SIR
requirements or (b) expressly allow payments by the AI to satisfy
the named insured sub's SIR amount.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author's employer or IRMI. Expert Commentary articles
and other IRMI Online content do not purport to provide legal, accounting, or other
professional advice or opinion. If such advice is needed, consult with your attorney,
accountant, or other qualified adviser.