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August 25, 2022
When playwright William Shakespeare asked the question, “What’s in a name?” in Romeo and Juliet, he was referring to the idea that names themselves are a convention to distinguish things or people, but themselves do not have any worth or meaning. While we can certainly understand that “a rose by any other name would smell as sweet,” we do have to be careful with names and their meaning in the world of business, contracts, and construction. When it comes to builder’s risk insurance specifically, names do indeed carry great meaning.
Builder’s risk insurance is a special type of property coverage that indemnifies against damage to buildings while under construction. Typically, the project owner or general contractor requires that these policies be purchased according to the master contract, such as the American Institute of Architects’ form. The standard AIA form and other similar contracts require that the builder’s risk policy protect the interests of the owner, contractor, and subcontractors. In many cases, there is no reference to what name these different parties should be called under the policy. Should a claim arise, this is a potentially dangerous detail to overlook.
When referring to insurance policies, there are different types of names that a person or entity can be identified as:
Since builder’s risk policies are property policies, they can only have first named and named insureds listed. Proper contractual wording regarding builder’s risk coverages should include the requirement that all parties involved in construction, including subcontractors of every tier, be listed as named insureds in the policy. Contractors should challenge any reference to additional insureds. To not be listed as a named insured puts a contractor or subcontractor at a severe disadvantage in the event of a claim, with no right to the policy’s benefits.
The owner/developer may have lenders, investors, and others that may not agree subcontractors or even general contractors should be named insureds on the policy; carriers may also take this stance. This is negotiable; however, there may be carrier restrictions or contractual language to consider.
Recent developments within certain insurance carrier forms are beginning to cause confusion, as they are using the term “additional insureds” to refer to contractors being added to the policy rather than as “named insureds.” To make matters worse, carriers sometimes define the term with the limitation that additional insureds are insureds only to the extent that “their interests may appear” for specific work that the contractor or subcontractor completed.
This wording could expose contractors to insurance carrier subrogation following a loss for areas in which a contractor might be deemed to have no interest. For example, a plumbing contractor whose installed fixture leaked and caused finish work damage may be required to pay back costs associated with cabinetry and trim work. This could become very expensive for the party deemed at fault in a larger project.
To protect against these concerns, this kind of policy wording should be rejected if possible. If not, then it is important to ensure strong waiver of subrogation wording is included both within the policy and the project contract for all parties and any damages to the structure.
Understanding these differences in names can be difficult for individuals not well versed in insurance language. Before work begins, we recommend that you consult with your Parker, Smith & Feek team when questions arise about these terms. If you have further questions, reach out to Parker, Smith & Feek’s Construction Practice Group.
The views and opinions expressed within are those of the author(s) and do not necessarily reflect the official policy or position of Parker, Smith & Feek. While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept liability for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it.