General contractor and its CGL carrier were sued by a subcontractor’s employee for injuries sustained when hit by truck driven by another subcontractor while working on site. The CGL moved for summary judgment on the basis that an exclusion in the policy barred coverage for injuries to employees, and also the Insured failed to meet a special condition of the policy requiring it to obtain additional insured coverage from independent contractors. Obtaining such additional insured endorsements from the subcontractor’s carriers was a condition precedent to CGL coverage. Appellate court affirmed the trial courts judgment dismissing the suit because the conditions for coverage “clearly were not met.” Baudoin v. American Glass and Mirror Works, Inc., et al., 2022 WL 303258 (La. App. 3 Cir. 2/2/22).
The plaintiff attempted to persuade the court that a state anti-indemnity statute must be applied to the situation and thereby prohibit the carrier from enforcing the conditions of the policy. The court noted that while the state code prohibits certain indemnity agreements, it states in pertinent part” Nothing in this Section shall be construed to prevent the Indemnitee from requiring the indemnitor to provide proof of insurance for obligations covered by the contract.” The insurance policy therefore contained a lawful condition requiring the Insured to obtain additional insured status on his subcontractors’ insurance policies.
Risk Management Comment
In my litigation defending design professionals, there have several occasions where we believed construction defects caused the problem for which the Owner/client was suing our design firm. When that happens we tender a claim to the contractors CGL carrier in which we have been duly made an additional insured. We have successfully had the CGL carrier pay half of our defense costs and half of the indemnity costs to settle the cases. Our advice is that if you are a design firm you should ask your client to make you an additional insured on the contractors’ CGL policies. Then if a claim is make against you alleging professional liability, seek evidence to demonstrate contractor fault and then make a claim under the CGL policy as an additional insured. This is important!
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 24, No. 4 (May 2022).
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