Two recurring phrases in insurance policies and contracts are often decisive in determining who must pay a claim. These phrases set forth nexus requirements that the loss either "arose out of the work" or was "caused by the acts or omissions" of a party, usually a subcontractor, to trigger insurance and indemnity obligations.
Thus, the triggers set the parameters for answering the question of how far is too far in time, space, and manner to assign responsibility to a party and its insurer. The half-humorous "lawyer's answer" to this question might be "it depends," which implies that the facts alone define the parties' responsibilities. However, it is this trigger wording that defines the parties' duties by drawing a line through the facts to demarcate when a loss is too remote to shift the risk.
As evidenced by the massive number of reported decisions interpreting these triggers in policies and contracts, determining triggers using the primary documents that owners, general contractors, and subcontractors use to allocate risk of construction losses has proved as challenging as it is compelling.
This discussion will (1) examine the meaning of the trigger phrases, (2) consider whether slight variations in their wording make any difference, and (3) review how a recent high court case provides new guidance for the phrase "arising out of" in both the coverage and contractual indemnity contexts.
Additional Insured Coverage
The first article in this series, "Additional Insured Obstacles Fall: Coverage Is Not 'Premature,'" traced the evolution of trigger wording in Insurance Services Office, Inc. (ISO), additional insured endorsements. Before 2004, additional insured coverage was triggered for losses "arising out of your [the named insured's] work" in the widely used CG 20 10 11 85. Then, starting with the CG 20 37 07 04, ISO significantly changed the trigger language to restrict coverage only to losses "caused by [the named insured's] acts or omissions," the aftermath of which has generated 20-plus years of coverage litigation across state and federal courts.
That article also noted that there were minor ISO changes to the type of "arising out of" additional insured endorsements over the last 40 years that drew less attention, including modifying "arising out of your work" to "your operations" and then to "arising out of your acts or omissions."
The next article in this column, "Additional Insured Obstacles Fall: Is Coverage Restricted?," discussed how other additional insured endorsements similarly mixed and matched phrases such as "caused," "caused in part," and "caused in whole or in part." However, as that discussion noted, attempts to attribute major significance to those minor variations in the two trigger phrases have been largely rejected by the courts.
For example, in the seminal Burlington Ins. Co. v. NYC Tr. Auth.,
29 N.Y.3d 313, 79 N.E.3d 477 (2017), the decision—a high court case cited over 1,100 times in cases and commentary across the country—found that the "in whole or in part" modifier can mean only one thing (i.e., that the named insured was the proximate legal cause of the loss).
Thus, in the coverage context, the guidance from ISO itself in 2004 and thereafter from the courts is that "arising out of work" is generally less restrictive than "caused by acts or omissions," and small variations in those phrases do not generally change their significance in the additional insured context.
Moreover, while the "arising out of work" trigger wording might not be as commercially available in additional insured endorsements as it used to be, the same trigger is still widely used in contractual indemnity provisions, raising the question of whether it has the same meaning in both documents. A recent high court decision answered this question by finding that "arising out of" has different significance for contractual indemnity than for additional insured coverage.
Contractual Indemnity
In DiBrino v. Rockefeller Ctr. N., Inc.,
2025 NY Slip Op 07077 (Dec. 18, 2025), the New York Court of Appeals (New York's highest court) took what may be the closest ever judicial look into the meaning of the phrase "arising out of." DiBrino is particularly instructive because it involved a common scenario in construction site losses, namely where a worker borrows another trade subcontractor's tools or equipment.
In that case, Dominick DiBrino, a carpenter, fell from a bent step on a ladder owned by the electrical subcontractor, DAL Electrical Corporation. He ignored DAL's blue painter's tape marked "do not use" on the cap and top two rungs and did not ask DAL for permission to take the ladder. When he fell off the ladder, he was impaled on a pair of snips on his toolbelt.
Mr. DiBrino sued the owner and general contractor who, in turn, sought contractual indemnity from DAL and additional insured coverage from DAL's insurer. After deciding that DAL's nexus to the loss was too attenuated for DAL to have any tort duty to DiBrino, the court then considered DAL's indemnity obligations to the owner and general contractor, and the contract's trigger wording.
The DAL contract with the general contractor contained several contractual indemnity provisions with slightly different trigger wording. DAL was required to indemnify the owner and the general contractor "to the fullest extent permitted by law" for losses (1) "arising from DAL's work or alleged negligence," (2) "arising from, resulting from, and related to (directly or indirectly) DAL's acts and omissions," (3) for all claims "as a result of the subcontractors performance of the work … for which Subcontractor is responsible under this Agreement," and (4) for "all liabilities … which may be asserted against any Indemnitee in whole or in part, arising out of, resulting from or in any way related directly or indirectly … any acts or omissions breach of terms … under this agreement." [Emphasis added.]
Indemnity agreements often use multiple modifiers like this. However, broader language encompasses the narrower wording. Thus, compounding the traditional trigger wording with "arising from," "resulting from," "related to," and the like can make interpretation unnecessarily complicated and add uncertainty.
Underscoring the challenge even for scholars of applying trigger wording to facts, the court split 5–2 with the majority finding that DAL's connection to the carpenter's fall was too tenuous for DAL to owe contractual indemnity. The majority placed decisive importance on contract wording linking the indemnity obligation to the scope of work, which of course did not include providing other trades with ladders. While the dissent argued that the borrowed use was foreseeable to DAL, the majority held that foreseeability is a tort rather than contract concept and that "foreseeability does not establish a duty but rather the scope of a duty once established."
This subtle role of foreseeability is difficult to reconcile with the same court's Burlington decision, interjecting the tort concept of proximate cause into the interpretation of an insurance policy, which is also a contract. Moreover, the precedent that Burlington relied on, an earlier New York Court of Appeals case, Hain v. Jamison,
2016 NY Slip Op 08583, 68 N.E.3d 1233 (2016), which stated that "proximate cause turns on … foreseeability." (See, Julian D. Ehrlich, "'Caused in Whole or In Part': Foreseeable Additional Insured Issues," New York Law Journal, February 14, 2000.) Thus, foreseeability is apparently relevant for tort liability and additional insured coverage but not so much for contractual indemnity.
Interestingly, both the majority and dissent in DiBrino opined that DAL's liability to the claimant and indemnity obligations to the owner and general contractor could be properly decided as a matter of law by the court rather than presenting issues of fact to be decided by a jury, even though the justices reached opposite outcomes.
But arguably, the most remarkable aspect of DiBrino is that, in exculpating DAL, the majority also found that "arising out of work" had different meanings in contractual indemnity provisions than in additional insured endorsements. The court held that, for purposes of interpreting additional insured coverage in a policy, "arising out of work' means 'originating from, incident to, or having connection with' requiring only 'some causal relationship' between the injury and the risk covered by insurance. However, that standard is based on the rule that in the presence of ambiguity policy wording is to be construed adverse to the insurer but 'no such background rule applies to indemnification agreements between contractors.'"
Does this mean a loss can "arise out of" a subcontractor's work so as to trigger additional insured coverage but not contractual indemnity? If so, will DiBrino lead to inconsistent outcomes?
Conclusion
Trigger wording in policies and contracts attempts to draw lines on the parties' risk transfer obligations. This discussion highlighted the following points.
"Arising out of work" is an easier threshold to meet than "caused by acts or omissions," but both triggers have their limits in time and space, and those limits will be hotly contested. In some cases, judges decide nexus issues as a matter of law, but in other cases, judges will leave that for the jury to decide.
Small variations of wording in these two triggers have not had a significant impact on their meaning.
In theory, a loss might "arise out of" a party's actions to trigger additional insured coverage but not contractual indemnity.
Nonetheless, despite these attempts to place objective boundaries on causal connections, causation questions are inherently subjective even outside the insurance and legal settings.
The butterfly effect theory posits that a small insect flapping its wings can cause weather changes around the world. But does the weather then "arise out of" the work of a butterfly? Ask 10 people and get 15 opinions.
There is no end in sight to coverage litigation over these triggers, but future arguments are likely to be reframed by DiBrino. Foreseeability will likely continue to be a slippery thread running through contract and policy interpretation.
All of which may leave parties feeling like risk transfer is out of control and impossible to fully manage. However, parties can control the contract wording they use. Adding "resulting from," "relating to," "originating from," or similar wording will likely not help explain either "arising out of" or "caused by acts or omissions." Therefore, simpler trigger language is always better.
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.
Two recurring phrases in insurance policies and contracts are often decisive in determining who must pay a claim. These phrases set forth nexus requirements that the loss either "arose out of the work" or was "caused by the acts or omissions" of a party, usually a subcontractor, to trigger insurance and indemnity obligations.
Thus, the triggers set the parameters for answering the question of how far is too far in time, space, and manner to assign responsibility to a party and its insurer. The half-humorous "lawyer's answer" to this question might be "it depends," which implies that the facts alone define the parties' responsibilities. However, it is this trigger wording that defines the parties' duties by drawing a line through the facts to demarcate when a loss is too remote to shift the risk.
As evidenced by the massive number of reported decisions interpreting these triggers in policies and contracts, determining triggers using the primary documents that owners, general contractors, and subcontractors use to allocate risk of construction losses has proved as challenging as it is compelling.
This discussion will (1) examine the meaning of the trigger phrases, (2) consider whether slight variations in their wording make any difference, and (3) review how a recent high court case provides new guidance for the phrase "arising out of" in both the coverage and contractual indemnity contexts.
Additional Insured Coverage
The first article in this series, "Additional Insured Obstacles Fall: Coverage Is Not 'Premature,'" traced the evolution of trigger wording in Insurance Services Office, Inc. (ISO), additional insured endorsements. Before 2004, additional insured coverage was triggered for losses "arising out of your [the named insured's] work" in the widely used CG 20 10 11 85. Then, starting with the CG 20 37 07 04, ISO significantly changed the trigger language to restrict coverage only to losses "caused by [the named insured's] acts or omissions," the aftermath of which has generated 20-plus years of coverage litigation across state and federal courts.
That article also noted that there were minor ISO changes to the type of "arising out of" additional insured endorsements over the last 40 years that drew less attention, including modifying "arising out of your work" to "your operations" and then to "arising out of your acts or omissions."
The next article in this column, "Additional Insured Obstacles Fall: Is Coverage Restricted?," discussed how other additional insured endorsements similarly mixed and matched phrases such as "caused," "caused in part," and "caused in whole or in part." However, as that discussion noted, attempts to attribute major significance to those minor variations in the two trigger phrases have been largely rejected by the courts.
For example, in the seminal Burlington Ins. Co. v. NYC Tr. Auth., 29 N.Y.3d 313, 79 N.E.3d 477 (2017), the decision—a high court case cited over 1,100 times in cases and commentary across the country—found that the "in whole or in part" modifier can mean only one thing (i.e., that the named insured was the proximate legal cause of the loss).
Thus, in the coverage context, the guidance from ISO itself in 2004 and thereafter from the courts is that "arising out of work" is generally less restrictive than "caused by acts or omissions," and small variations in those phrases do not generally change their significance in the additional insured context.
Moreover, while the "arising out of work" trigger wording might not be as commercially available in additional insured endorsements as it used to be, the same trigger is still widely used in contractual indemnity provisions, raising the question of whether it has the same meaning in both documents. A recent high court decision answered this question by finding that "arising out of" has different significance for contractual indemnity than for additional insured coverage.
Contractual Indemnity
In DiBrino v. Rockefeller Ctr. N., Inc., 2025 NY Slip Op 07077 (Dec. 18, 2025), the New York Court of Appeals (New York's highest court) took what may be the closest ever judicial look into the meaning of the phrase "arising out of." DiBrino is particularly instructive because it involved a common scenario in construction site losses, namely where a worker borrows another trade subcontractor's tools or equipment.
In that case, Dominick DiBrino, a carpenter, fell from a bent step on a ladder owned by the electrical subcontractor, DAL Electrical Corporation. He ignored DAL's blue painter's tape marked "do not use" on the cap and top two rungs and did not ask DAL for permission to take the ladder. When he fell off the ladder, he was impaled on a pair of snips on his toolbelt.
Mr. DiBrino sued the owner and general contractor who, in turn, sought contractual indemnity from DAL and additional insured coverage from DAL's insurer. After deciding that DAL's nexus to the loss was too attenuated for DAL to have any tort duty to DiBrino, the court then considered DAL's indemnity obligations to the owner and general contractor, and the contract's trigger wording.
The DAL contract with the general contractor contained several contractual indemnity provisions with slightly different trigger wording. DAL was required to indemnify the owner and the general contractor "to the fullest extent permitted by law" for losses (1) "arising from DAL's work or alleged negligence," (2) "arising from, resulting from, and related to (directly or indirectly) DAL's acts and omissions," (3) for all claims "as a result of the subcontractors performance of the work … for which Subcontractor is responsible under this Agreement," and (4) for "all liabilities … which may be asserted against any Indemnitee in whole or in part, arising out of, resulting from or in any way related directly or indirectly … any acts or omissions breach of terms … under this agreement." [Emphasis added.]
Indemnity agreements often use multiple modifiers like this. However, broader language encompasses the narrower wording. Thus, compounding the traditional trigger wording with "arising from," "resulting from," "related to," and the like can make interpretation unnecessarily complicated and add uncertainty.
Underscoring the challenge even for scholars of applying trigger wording to facts, the court split 5–2 with the majority finding that DAL's connection to the carpenter's fall was too tenuous for DAL to owe contractual indemnity. The majority placed decisive importance on contract wording linking the indemnity obligation to the scope of work, which of course did not include providing other trades with ladders. While the dissent argued that the borrowed use was foreseeable to DAL, the majority held that foreseeability is a tort rather than contract concept and that "foreseeability does not establish a duty but rather the scope of a duty once established."
This subtle role of foreseeability is difficult to reconcile with the same court's Burlington decision, interjecting the tort concept of proximate cause into the interpretation of an insurance policy, which is also a contract. Moreover, the precedent that Burlington relied on, an earlier New York Court of Appeals case, Hain v. Jamison, 2016 NY Slip Op 08583, 68 N.E.3d 1233 (2016), which stated that "proximate cause turns on … foreseeability." (See, Julian D. Ehrlich, "'Caused in Whole or In Part': Foreseeable Additional Insured Issues," New York Law Journal, February 14, 2000.) Thus, foreseeability is apparently relevant for tort liability and additional insured coverage but not so much for contractual indemnity.
Interestingly, both the majority and dissent in DiBrino opined that DAL's liability to the claimant and indemnity obligations to the owner and general contractor could be properly decided as a matter of law by the court rather than presenting issues of fact to be decided by a jury, even though the justices reached opposite outcomes.
But arguably, the most remarkable aspect of DiBrino is that, in exculpating DAL, the majority also found that "arising out of work" had different meanings in contractual indemnity provisions than in additional insured endorsements. The court held that, for purposes of interpreting additional insured coverage in a policy, "arising out of work' means 'originating from, incident to, or having connection with' requiring only 'some causal relationship' between the injury and the risk covered by insurance. However, that standard is based on the rule that in the presence of ambiguity policy wording is to be construed adverse to the insurer but 'no such background rule applies to indemnification agreements between contractors.'"
Does this mean a loss can "arise out of" a subcontractor's work so as to trigger additional insured coverage but not contractual indemnity? If so, will DiBrino lead to inconsistent outcomes?
Conclusion
Trigger wording in policies and contracts attempts to draw lines on the parties' risk transfer obligations. This discussion highlighted the following points.
Nonetheless, despite these attempts to place objective boundaries on causal connections, causation questions are inherently subjective even outside the insurance and legal settings.
The butterfly effect theory posits that a small insect flapping its wings can cause weather changes around the world. But does the weather then "arise out of" the work of a butterfly? Ask 10 people and get 15 opinions.
There is no end in sight to coverage litigation over these triggers, but future arguments are likely to be reframed by DiBrino. Foreseeability will likely continue to be a slippery thread running through contract and policy interpretation.
All of which may leave parties feeling like risk transfer is out of control and impossible to fully manage. However, parties can control the contract wording they use. Adding "resulting from," "relating to," "originating from," or similar wording will likely not help explain either "arising out of" or "caused by acts or omissions." Therefore, simpler trigger language is always better.
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.