Responsibilities were clearly defined under the design-bid-build model that
dominated the commercial construction industry over a decade ago. Today, the
trend toward design-build, fast-tracking, and accelerated delivery
methods—coupled with the desire to take on new projects requiring an expanded
level of experience or expertise—has not only created new job opportunities for
building professionals, but also made them far more susceptible to liability
that can be covered by CPrL insurance.
In addition to being drawn into the earliest stages of the project
development cycle, the services of these construction professionals have merged
so intensely that even their "consultative advice" can produce
exposures in this current "collaborative" construction environment.
As a result, the CPrL insurance marketplace has continually expanded to
accommodate these changing circumstances. In fact, the number of contractors
purchasing this form of coverage continues to rise along with their knowledge
of potential risks and claims.
As commonly defined, CPrL provides coverage for damages arising out of
negligent acts, errors, and omissions from the professional services performed
by or on behalf of any construction firm, be it a general contractor,
design/builder, construction manager (at-risk or agency), or specialty
subcontractor.
Little more than a professional liability coverage part a short time ago,
CPrL programs have also broadened significantly to include various first-party
coverage parts—contractor's protective indemnity and
rectification/mitigation (R/M) insurance to be specific. However, it must be
noted that these coverage forms are very different. This is true even though
they were both designed as first-party coverages intended to insure contractors
from the defects in professional services performed by design professionals
hired by the insured (contractor) as well as the defects in professional
services created by the insured. Today, the CPrL coverage commonly consists of
the following.
- Professional liability (third-party) protection for
liability arising out of negligent acts, errors, or omissions in the issuance
of professional services performed by or on behalf in the insured.
- Protective indemnity (first-party) protection for
damages incurred by the insured (contractor) that the insured is legally
entitled to recover from errors created by design professionals. However,
this is an excess coverage, meaning that it pays for the difference between
the total damages and the damages paid by the professional liability limits
available to the insured from the design professional.
- Rectification/mitigation (first-party) pays for the
expenses reasonably incurred during the mitigation or rectification of a
negligent act, error, or omission arising from professional services
(performed by or on behalf of the insured) that would otherwise lead to a
professional liability claim. Rectification/mitigation coverage is a primary
coverage.
CPrL Mitigation Coverage Variables
Currently, there are about 12 insurers offering some level of
mitigation/rectification in their policies. But, there are distinctions among
these providing for two very different types of mitigation coverage. One
provides coverage for the costs incurred to remedy design or professional
service errors, while the other only covers the costs incurred to prevent
further damage once the error is identified.
For instance, consider a simple commercial, mixed-use structure designed or
specified with the improper rebar density. The structure is near completion and
hasn't collapsed. However, it can't be used for its intended purpose
due to the engineering error.
The mitigation form that only covers costs incurred to prevent further
damage may only pay for the temporary columns needed to support the structure,
ensure the structure doesn't collapse, and prevent further damage. But, it
would not pay for the cost to redesign or provide a permanent remedy.
Conversely, the other mitigation coverage would pay for the costs to redesign
and provide a permanent solution. It would also keep the liability coverage
intact in the event a third-party claim is made. For these reasons, among
others, it is extremely important to understand the type of mitigation coverage
purchased.
Supplemental Limits
Another variable concerns supplemental limits, which ensure liability
coverage is not eroded beyond policy limits, unlike sublimits. This normally
entails 80/20 coinsurance provisions—80 percent of the cost incurred by the
insurer and 20 percent incurred by the insured—that are placed on top of a
self-insured retention (SIR). Subsequently, an insured with a R/M supplemental
limit of $250,000 SIR and $2,000,000 in damages, would likely assume $250,000
plus another $400,000 via the coinsurance provision, all of which would not be
applied to the overall liability limit. It should be noted that this provision
is diminishing, although it still remains in the marketplace.
Professional Services
Other considerations surround the definition of professional services, which
can vary among insurers. For example, one insurer might apply the coverage to
services specifically related to engineering or architectural services, while
others might only insure "covered design services" such as the
design, design assist, engineering, or value engineering activities performed
by an "insured." You must keep in mind that the R/M enhancement only
insures professional services as defined by that coverage part; the other
coverage parts may carry a different definition of professional services.
Claim Reporting
Furthermore, there are even differences among insurers for the reporting of
claims. Some require errors to be reported as soon as possible. In some cases,
the R/M coverage will not apply if the claim/error is not reported prior to the
project's substantial completion. This is because the issue could result in
a third-party claim and inclusion under the liability coverage part. In
addition, most insurers not only require the prompt reporting of errors, but
also require corrective plans of action, although grace periods are offered by
several insurers.
Lastly, please note that R/M claims are not treated like typical liability
claims by insurers. They require immediate action to ensure the coverage takes
affect when needed. Always thoroughly evaluate CPrL program terms in relation
to the insurer's ability to understand and efficiently manage claims,
especially in the situation where R/M coverage is provided. There is no looking
back when calamity strikes.