Professional Documents
Culture Documents
Where Does Insurance, Bonding and Indemnification Fit in the Contracting Process? At the inception of an idea.
Principle #1
Contractually transfer the appropriate risks relating to the contract to the contractor. Ask for appropriate insurance and bonds to cover the risk.
Principle #2
Do not indemnify an independent contractor. The state is subject to the Oregon Tort Claims Act (OTCA). OTCA limits state liability. Contractors have unlimited liability. Indemnifying a contractor may harm the states defense against a claim and make the state subject to unlimited liability.
Dont rely on insurance or bonds to cover all of the risks associated with your contract. Many times outcome based statements of work, contract administration, and supervision are far better risk control measures to protect the states interests than insurance or bonds. Insurance and bonds should be thought of as the safety net that catches us when everything else goes wrong.
Principle #3
Asking for Insurance Coverage Alone Does Not Protect Your Agency From All the Risks of Contracting
Indemnity/Hold Harmless
A method of contractually transferring the risk. States that the contractor or service provider will not hold us responsible for any claims arising out of their negligent acts and that the contractor will pay associated claim costs. Provides the state with claims protection. Most effective when used in conjunction with the appropriate insurance clauses.
A Claims Made policy covers all claims reported and filed during the policy period.
An Occurrence policy covers all claims arising out of incidents occurring during the policy period, regardless of whether or not the policy is still in effect at the time that the claim is made.
Coverage Assessment
What Does This Really Mean? A CGL Policy will not pay for losses due to a contractors work on or damage to your agencys electronic data!
Except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned.
However, "your work" will be deemed completed at the earliest of the following times: (a) When all of the work called for in your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.
Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; (2) The existence of tools, uninstalled equipment or abandoned or unused materials; or
(3) Products or operations for which the classification, listed in the Declarations or in a policy schedule, states that products completed operations are subject to the General Aggregate Limit.
Contractual Liability: A portion of Commercial General Liability coverage that allows limited coverage for liability assumed under the contract. The coverage allowed by Contractual Liability includes: Liability assumed under an insured contract. Liability that the insured would have in the absence of the contract or agreement.
Thus, DAS would be covered (on an excess basis over any builders risk coverage on the work) for damage to all parts of the building other than the plumbing and all parts of the plumbing system other than the particular part being worked on at the time of the loss.
Pollution (1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants. What Does This Mean? CGL will not cover any type of pollution, except under very limited circumstances. If your agency needs to remediate pollution or has a pollution exposure, Pollution Liability coverage is needed.
Important Exceptions to the CGL Pollution Exclusion "Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot from equipment used to heat that building; "Bodily injury" or "property damage arising out of heat, smoke or fumes from a "hostile fire";
Special Relationships
Only Exist When: One party has relinquished control over the subject matter of the relationship to the other party; and Has placed its potential monetary liability in the others hands.
Automobile Liability
Insurance that provides coverage for third party bodily injury or property damage arising out of the use of an insured vehicle.
When Do you Need Automobile Insurance Coverage? When the contractor needs to use an automobile to provide the services.
Commercial Automobile Coverage is needed whenever the contractor will be transporting the states employees, clients, etc. or the states property. Use of Personal Automobile coverage instead of Commercial or Business Automobile coverage may be appropriate for sole proprietors. Note: The sole proprietormust either carry a Business Use Endorsement or insure that business use is covered under their personal auto policy. Personal Automobile coverage will not name the state as an Additional Insured.
Use whenever a Contractor transports mobile equipment to the work site: CGLinsurance does not cover the transport of mobile equipment. Ensure automobile liability includes coverage for owned, non-owned or hired vehicles. RequireCGLcoverage for the liability exposure arising from the Contractor's operation of the mobile equipment. Note: Mobile equipment is not considered to be an automobile, therefore an automobile liability policy provides no coverage for the operation of this equipment.
The Terms Professional Liability and Errors and Omissions Coverage are used interchangeably.
Licensed and accredited specialists such as: Doctors or medical practitioners. Engineers. Information technology specialists (computer programmers, etc). And non-licensed professionals such as interpreters, recorders, testing facilities, and research laboratories.
Workers Compensation
Insurance covering employee injuries, disability or death. The policy protects the employer from being sued by the employee for injuries. Oregon law requires all employers, unless exempt, provide this coverage for all subject employees working in Oregon.
Specific questions about Workers Compensation? Call the Department of Consumer & Business Services, Workers Compensation, Employer Section at (503) 947-7815.
CRIME COVERAGE
Employee Dishonesty, Third Party Fidelity and (when applicable) Money and Securities
Insurance covering loss to money, securities, and other property (other than money) caused directly by employee dishonesty.
Umbrella Policies
Provide excess coverage over another underlying liability policy. Many times provides broader coverage than the primary (underlying) liability policy.
Excess Liability
Pays after the primary (underlying) liability policy limits have been exhausted. May not be as broad as primary (underlying) liability policy.
Goods in Transit
Types of Carriers: Common carriers are airlines, railroads, or trucking companies that furnish transportation to any member of the public seeking their services. Contract carriers do not hold themselves out to the general public but rather furnish transportation for certain shippers for which they have contracts. Private carriers haul their own goods or goods entrusted to them.
Exposures related to transportation (rolling stock, bridges, and tunnels) can be insured using inland marine insurance. Inland marine insurance can also be provided on instrumentalities of communication such as television towers and transmission equipment.
Tractors, mobile equipment, cranes, and backhoes. Computer equipment. Livestock. Fine arts. Patterns, molds, and dies. Partially completed products that are sent to another location for completion or processing. Valuable papers, records, records of accounts receivable. Goods on exhibition.
When Does Your Agency Need to Ask for Builders Risk Coverage?
When a building is being constructed. When substantial alterations will be made to an existing structure i.e., bearing walls, lifting foundations, extensive construction.
When Your Agency Doesnt Need to Ask for Builders Risk Coverage
For construction to an existing building that does not involve structural modifications, or substantial alteration of the building. For construction of structures other than buildings e.g. tunnels, bridges, roads, culverts, etc.
Aircraft Liability
Covers liability for bodily injury and property damage to others (i.e., injury to, or death of persons outside the aircraft as well as property damage or destruction done with the aircraft), arising out of the ownership, maintenance, or operation of an aircraft.
If the contract involves the aerial application of any chemical, fertilizer, seed, or bait addAircraft Aerial Application Liability Coverage. Check the qualifications and certifications of the pilot. If carrying state passengers on behalf of the state, make sure that: (1) The pilot is certified to carry passengers and (2) The Aircraft Liability provides coverage for the passengers on a per seat limit.
Tail Coverage
Can be purchased to extend the period of time a claim can be reported for a claims made policy. Should be required when a contractor provides insurance coverage that is on a claims made basis.
What is a Bond?
What is a Bond?
A Surety Bond is a risk transfer mechanism that performs the following functions:
Guarantees that the bonded project will be completed according to the terms of the contract and at the determined contract price. Guarantees that the laborers, suppliers, and subcontractors will be paid even if the contractor defaults. Relieves the owner from the risk of financial loss arising from liens filed by unpaid laborers, suppliers, and subcontractors.
What is a Bond?
(Continued)
Reduces the possibility of a contractor diverting funds from the project. Provides an intermediary (the surety) to whom the owner can air complaints and grievances. Lowers the cost of construction in some cases by facilitating the use of competitive bids.
Bonds?
Bonds are different from insurance. A bond is a simple guarantee. If there is a loss, the bonding company (Surety) will pay but will seek full reimbursement from the contractor. Premium is based on the contractors loss experience, assets, and finances.
However, if the contractor does not have a way to pay for these losses, then the contract alone will not protect the state. Insurance and bonds are ways to backup contract indemnity statements.
Bid Bond
Provides financial assurance that the bid is submitted in good faith and that the contractor intends to enter into the contract at the bid price and if stated in the bid, provide the required performance and payment bonds.
Performance Bond
Protects the state from financial loss should the contractor fail to perform the contract in accordance with contract terms and conditions.
Payment Bond
Maintenance Bond
Protects the state against defects in workmanship or materials (usually for two years) after the contractor has completed the work.
Coverage Assessment
Likelihood
ALMOST CERTAIN
M L L L
M M L L
H H M M
E E H H
E E E H
E = Extreme Risk:
First, consider not doing the activity. If you must, you will need to decide how much a potential loss could cost? In general, risks at this level warrant more than $1 million in coverage.
H = High Risk:
Could a potential loss cost in excess of $1 million? If so, ask for more coverage. Make sure your assessment considers all costs of potential losses. Risk Management would not recommend limits of less than $1 million for High rated risks.
M = Moderate Risk:
Standard limit of insurance is $1 million. Assessment should consider all costs of potential losses. If assessment reveals potential loss in excess of $1 million, your risk may actually be high (see H for High Risk.)
L = Low Risk:
If risk is minimal, this is the area where coverage and limits may potentially be flexible. Standard limit is still $1 million. In the case of minimal risks, the agency could make a business decision to lower the limits of coverage. Risk Management would not generally recommend insurance limits of less than $500,000. If the risk assessment reveals only minute risk, agency could make a business decision to waive coverage.
OR
Coverage Assessment
Analyze the perils covered by the type of insurance you will be requiring. Looking at the perils, and analyze if these perils exist in the performance of the contracted work.
Coverage Assessment
For each peril that exists in the contracted work, perform a risk assessment of:
Who could be harmed? What could go wrong? How bad could it be? How much could it cost?
Rate the perils and assign insurance amounts based on the Risk Rating.
Supplemental Clauses
Additional Insured
Protects the state when named in an action that is not its responsibility or fault. Ensures that the contractor or service providers insurance company will expend funds to have the states name removed. The state benefits by not having to use its assets for litigation purposes.
Additional Insured
Should be issued as an endorsement to the contractors insurance coverage. The endorsement to the contractors insurance coverage may be issued on a blanket basis that applies to any entity the contractor enters into a contract with.
Certificates of Insurance
Certificate(s) of Insurance
Requires the contractor to prove to the state that it has met the insurance requirements of the contract. One way to prove this request is by submitting a Certificate of Insurance stating the coverage and policy limits.
Stands for Self-Insured Retention. Works like a deductible. If you see this on a Certificate of Insurance, it means the contractor will perform all the functions normally undertaken by an insurance company for claims within the SIR. Any losses must exceed the SIR amount before the insurance company will handle the claim.
Make sure the coverage and policy limits match the contract requirements. Look at the policy effective date and expiration dates to make sure they coincide with the contract term. If not, request another certificate several months before the policy expires. The State of Oregon or your agency is named as the certificate holder and additional insured. What do the comments in the description section say? Contact the agent with any questions. Is there an SIR (self-insured retention) listed?
Acrobat Document
Victoria Games, Inc. ABC Trucking, Inc. a Common Carrier, F.O.B. Shippers Dock
Will the contractor interact with the public, staff, vendors, etc.?
There will be interaction between the manufacturer and various Lottery employees during design, development, manufacturing, and quality control. The Common Carrier will have interaction with Lottery employees during the delivery of the machines to the Lottery Warehouse
Only at the manufacturing site and related to property disposal of the machines when they are no longer useable. The manufacturer has all appropriate premises coverage for the onsite pollution exposure and maintains regulatory compliance. Lottery has made arrangements for appropriate disposal of machines.
Bodily Injury:
Bodily injury and/or illness to contractor employees on-site. Bodily injury and/or illness to Lottery employees on-site during design, development, quality control, and testing. Bodily injury to vendors or patrons of the machines if they are defective and start a fire, cause electrocution, sharp edges, etc.
Liability:
Bodily injury and/or illness to the vendor or patrons using the machines. Damage to property of vendor or near or adjacent property owners due to conditions in machines that causes fire. Financial loss to vendors if machines are defective an cause improper payouts. Financial loss to patrons if machines are defective and dont pay out as much as they should.
Is there any impact on workload or damage to our systems? - Delay in installation and implementation of marketing program for machines in vendor locations. - Additional costs for repair or re-design of machines.
What are the potential loss exposures associated with this activity?
Bodily injury Property damage Design flaw Liability
What is the Likelihood That Each of These Potential Losses Will Happen?
Bodily Injury - Unlikely Property Damage - Possible Design Flaw Possible Liability Possible
Likelihood
ALMOST CERTAIN
M L L L
M M L L
H H M M
E E H H
E E E H
Determine the Risk Rating or Level of Risk for Each Loss Exposure.
Bodily Injury: Low Risk Property Damage: Extreme Risk Design Flaw: Extreme Risk Liability: Extreme
Moderate Moderate budgetary, funding, or resource gain; Adequate public and/or client relations. Major Major budgetary, funding, or resource gain; Good public and/or client relations. Huge budgetary, funding, or resource gain; Excellent public and/or client
Critical
What Could Be The Opportunities On This Project? Funding for government. Good public perception for the effective negotiation with vendors, effective installation of machines. Good vendor relations for effectively managing implementation of the machines. Economic stimulation from additional funding sources.
Include safety protocols and training requirements in the contract. Verify that all of the contractors employees are properly trained and/or certified as required for the scope of work. Verify that all Lottery employees going to the manufacturers location are properly trained and/or certified as required for the duties they will perform. Require the contractor to log all incidents and to include mitigation strategies for preventing the incident in the future.
Bodily Injury:
Property Damage:
Contractual terms that hold the contractor responsible for damage to the machines while on their premises. Contractual terms that hold the contractor responsible for defects in the product that are not discovered during quality control or testing. Negotiation of contract with manufacturer and/or common carrier for responsibility for machines during transit and security protocol.
Liability:
In depth review and supervision of manufacturers quality control and testing of machines for electrical components and other parts that could cause bodily injury, property damage, or financial loss to vendors, patrons, or others (as appropriate). Warranties on the machines that cover potential defects found after installation.
Lottery should consider requiring Performance Bond for the amount of the contract or their maximum probable loss if the contractor does not perform.
The End