Yesterday's Wall Street Journal article outlines a tragic elevator incident resulting in one fatality and several injuries. This event should spark the interest of all building owners to examine how their own "contractual risk management program" will be effective in insulating the Building Owner against such events. Many organizations have programs in place that purport to obtain indemnity and insurance from vendors but in practicality, it is often overlooked and almost never audited for compliance. When it comes to Elevator Maintenance Companies many attempts to provide a separate "Owners & Contractors Protective" policy (OCP) in lieu of extending their own coverage and affording the more traditional "additional insured" status.
In a disturbing ruling by the Georgia Court of Appeals on October 5th 2011, the interpretation of language in an OCIP Program sponsored by the Atlanta Hartsfield Jackson International Airport was held to create a third-party beneficiary relationship for the estate of the injured worker. The contract stated the city's OCIP was "to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in project".
Controlled Insurance Programs (CIP) are becoming more and more common today but a contractor must be very careful to examine the terms and conditions of the CIP carefully as this may be their sole source of coverage. One of the most misunderstood issues is what happens when a CIP is cancelled. Virtually every CIP program has a section in the “manual” that allows for the program to be cancelled with some notice (hopefully) to the contractor. In many cases it could be a short as 30 days. What happens to the bid-deducts? Can you now submit a change order to increase your cost to Include insurance? Does the work you did prior still get coverage under the CIP? What about completed operations? To complicate matters many contractors have a “absolute wrap-up exclusion form [ISO CG 2154]. Pay close attention to the third condition in the second column that states “this exclusion applies whether or not the consolidated (wrap-up) insurance program: (3) Remains in effect” – So, when the CIP is cancelled the contractor can find themselves without ANY coverage unless they can scramble to get an exception to the exclusion.
Over the last 10 years the advent of an Owner Controlled Insurance Program (OCIP) has gained popularity for many reasons. Theoretically, buying one Program for the benefit of all parties to the Project provides cost efficiency and ease of claims administration. There is reduced “finger pointing” among [contractor] insurers and “control” of the site generally improves.