Are You Covered?

When a newly purchased hot tar kettle, valued at about $4,000, was stolen off one of his jobsites during the night, Don Strobel filed a claim with his general liability insurance carrier to cover the loss. He had assumed that while his company's property was on the jobsite it would be covered under his policy. Not so, said his general liability carrier.

“When I put in the claim, I was told that if you have tools on the jobsite, [to cover them] you must have an inland marine policy,” says Strobel, of Strobel Design Build, in St. Petersburg, Fla.

Because responsibility for understanding the policy ultimately falls on the remodeler, Strobel, filing his first commercial insurance claim after six years in business, became a victim of his own inexperience. “No one ever told me, and I didn't think to ask,” he says in hindsight. “If you don't know the right questions, you won't get the answers. The time to find out is not when something happens.”

Unfortunately, Strobel's case is not uncommon in the industry. Many remodelers do not entirely understand what is covered — or, perhaps more importantly, what isn't covered — under their general liability policy.

“Most remodelers don't speak the same language as insurance adjusters, and that's a real problem,” says Tom Messier, vice president of Construction Industry Services at Mason & Mason Insurance Agency, in Whitman, Mass.

For the majority of remodelers, general liability insurance is considered a necessary evil. It's complicated, it's stressful, and it's often expensive. Navigating the laundry list of amendments to a policy's coverage (called exclusions) is no easy task for someone unfamiliar with insurance jargon. For those in search of clarity, it makes sense to begin with the basics.

General liability insurance essentially provides two-pronged coverage to the insured party. “It is designed to pay for bodily injury and property damage that the [policyholder] is responsible for,” says Scott Simmonds, an independent insurance consultant in Saco, Maine.

Bodily injury coverage applies only to third-party injuries — those that occur to someone other than the business owner or an employee. (Jobsite injuries to employees would be covered by a workers' compensation policy.) Similarly, coverage for property damage applies to property other than the work the contractor has performed. In other words, if a contractor is building an addition to a home when an electrical malfunction burns down both the house and the addition, the house would be covered under the general liability policy, while the addition would not.

The technical term for the first of these two broad types of liability coverage is premises exposures, a type of exposure common to nearly all businesses. It includes coverage for any injuries that occur on property owned by or under construction by the policyholder. An example, Simmonds says, is a neighbor walking on a jobsite who happens to slip and hurt himself. The injury is covered under premises liability.

The second type of coverage is called products liability/completed operations. This part of the policy covers any injuries or damages that are caused by goods or services sold by the contractor.

“If I put new cabinets in a kitchen, and four months [after completion of the job] they fall off the wall and hurt someone, then the injury is covered,” Simmonds says. But it is important to remember that, in this situation, the cabinets them selves would not be covered — only the resulting damage. “Insurance won't pay to fix a job done improperly,” he explains.

Completed operations lawsuits are the most commonly filed, says Mark Leininger, agent and broker with NEK Insurance in Northern California, because the statute of limitations on lawsuits is so long.

“There is a 10-year statute on completed operations lawsuits for property damage [in most states],” he says. “But many remodelers are not aware that there is no time limitation for bodily injury lawsuits,” meaning a remodeler can be sued for injuries resulting from his past work long after he has retired. “This is why I usually recommend keeping a trimmed-down policy in effect after retirement,” Leininger says.

The other alternative, aside from discontinuing insurance and hoping for the best, is to sell your business and all its liabilities to another party, he adds.

To ensure predictability and consistency in policy coverage, there is a standard general liability insurance form used by most insurance carriers in the U.S. This standard list of coverages can then be either expanded or restricted depending on how much risk the insurance company is willing to absorb (and how much the remodeler is willing to pay in premiums).

Amendments to the standard form that restrict coverage are called “exclusions.” Exclusions may restrict coverage for work in a certain geographical location, a certain type of work, or damage by mold or water, among other things. Here are some exclusions that in recent years have become common in general liability policies.

Mold, mildew, and bacteria. Nearly all policies now restrict coverage for moisture-related incidents. “You can buy additional coverage for mold if you want, but the important thing is knowing [the exclusion] is there,” Messier says. “You might even be able to sign something in your contract [with the homeowner] that says you're not responsible for it.”

Care, custody, and control. This exclusion removes coverage for items considered to be temporarily under care or control of the contractor. For example, Leininger says, “if a contractor is working on a bathroom sink and his wrench slips and takes a chunk out of a marble tub, the carrier could make the case that the tub was under the contractor's care, and could exclude coverage.” These property-damage exclusions “are where people are most surprised to find they have no coverage,” Leininger says.

Insuring trades. When a trade contractor damaged several windows in a home being remodeled by Chris Shaheen, of Shaheen & Sons, in Gainesville, Fla., the remodeler felt inconvenienced, but not worried. “[The trade] had been insured by the same carrier I was with,” he says. “I thought it was a straightforward liability claim.” But upon investigation, Shaheen learned that his trade contractor's policy had lapsed. When he took the claim to his own insurance carrier, it initially said the claim would not be covered, leaving him to foot the bill for the repairs.

Though his insurance company eventually remitted payment for his trade's mistake, remodelers can take away a number of lessons from Shaheen's experience. The first rule — which would have spared Shaheen his mess, had he adhered to it — is to make sure that all trades show a certificate of insurance before performing any work.

“They don't need [to show] it for every job,” Simmonds says. “But every year, after renewal, you should be getting a new certificate.”

It's also imperative that “hold harmless” and indemnification clauses are included in your contract with the sub. The “hold harmless” clause states that the general contractor will not be held liable for the negligence of the trade contractor. The indemnification clause states that the trade will be financially responsible for any loss that occurs due to his own negligence.

“If the trade does a poor electrical job and burns down the house, the homeowner will sue both the general and the trade,” Simmonds says. “‘Hold harmless' says the trade won't sue the general; indemnification says the trade will step up and take financial responsibility with the homeowner.” However, some states have laws that prevent or restrict indemnification, so Simmonds advises enlisting the aid of an attorney to draw up the contract language.

In addition to taking these steps, remodelers should also request that trades name them an “additional insured” on their insurance policy. “This allows the general contractor to deal directly with the trade's insurance company,” instead of merely holding the trade contractor financially accountable, Simmonds says.

Your own work. As previously mentioned, general liability policies do not cover the actual work being performed by a contractor. This includes work that is damaged by vandalism, natural disaster, or other unforeseen incidents.

Brian Downs, of Downs & Associates, in Herndon, Va., recalls one such case in which a new kerosene heater that a contractor had placed in a recently drywalled room started a fire in the middle of the night. “The insurance company said there was no negligence since he followed standard practice and the heater was brand new,” Downs says. “The contractor ended up having to pay out of pocket to repair the damage.”

A “builder's risk” policy will insure a contractor against the loss of his own work. An installation floater, a type of inland marine insurance, can also be purchased to insure tools and other materials while they're on the jobsite. Other less notable exclusions include coverage restrictions for asbestos, urea formaldehyde, computer records and other “intangible data,” and employment practices.

Finding the right level of general liability insurance for your company can be tricky.

“No one can tell you how much to buy unless you can tell them how much you're going to get sued for,” Simmonds says. There are two types of limits to keep in mind when purchasing insurance: the per occurrence limit (the maximum a carrier will pay per claim filed) and the aggregate limit (the total they'll pay during the policy period).

Simmonds recommends obtaining a policy with at least a $1 million per occurrence limit. It is common to have an aggregate limit that is twice the per occurrence limit, though three times is better, Simmonds adds.

It's also a good idea to carry an umbrella policy on top of your general liability policy to cover any loss that goes beyond your coverage. Simmonds recommends between $2 million and $5 million in extra coverage, depending on how much you can afford in premiums.

“[Umbrella liability] is cheaper than general liability, and it provides coverage in other areas besides just general liability,” Simmonds says, noting that automobile liability and employer's liability are also covered under the policy.

According to Simmonds, a comfortable amount of coverage would include a $1 million per occurrence limit, $2 million aggregate limit, and a $5 million umbrella policy on top.

There is some debate about whether it is more favorable to buy insurance through an agent or through an independent broker.

“Brokers have access to a variety of companies and can shop around for the best price and most appropriate product,” says Downs, a broker himself. An agent, however, has a more direct relationship with the carrier and may be able to resolve problems more quickly.

Regardless of the route you decide to take, the most important thing when searching for an agent or broker is to find someone familiar with the industry. “When clients call me with a lower quote, 95% of the time it's not an apples-to-apples comparison,” Downs says. “Usually, the cheaper policy isn't structured properly.”

As a starting point, Downs recommends turning to local association chapters for referrals. Many companies offer reduced premiums to remodelers who are involved in associations or who carry professional designations. Having safety programs in place is also a plus, Simmonds says, because it's an indication of professionalism. “A well-run business will always have a better time managing insurance than a poorly run business,” he points out.

When Strobel set out in search of a new agent, he wanted someone who could not only find him a good price but who could guide him through the complexities of his policy. “As remodelers, clients hire us for counseling as well as building,” he says. “We don't make the decisions, but we provide guidance and suggestions. Shouldn't it be my agent's duty to do the same?”