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How to best confirm a subcontractor's insurance certificates and their actual underlying insurance coverage?

Florida
Anonymous Property Owner

When we start a job or hire new subcontractors, it's part of our prequalification process to confirm that they are insured. AND, importantly, to figure out who their subs are (if any) and verify that they are also insured. The standard practice is to collect certificates of insurance (COI). And we do this. However, there are situations when the COI looks adequate and meets limit requirements, but then the underlying policy has exclusions that would limit or eliminate the coverage all-together. For example, some policies limit coverage whenever a contractor is doing work at a certain height (i.e. more than X stories high)...but the contractor is working on a tall building that violates the policy. From the COI, there is really no way to know this, but the insurance policy will offer no coverage. Yet, we collect the COI and mark the subcontractor as insured. They really, of course, are not insured. Requesting actual copies of the insurance policy and all included exclusions is possible, I guess, but what a burden that seems. Getting the full policy is not part of the industry practices and will likely cause a burden to someone (i.e. the subcontractors and/or their agents), but more importantly, it then requires our team to become insurance policy reading experts, and these things can be really complicated.

2 replies

Attorney and Owner at The Storrs Law Firm
| 96 reviews
Jun 6, 2020
You've really put your finger on a tough issue for GCs. As you point out, it is not really sufficient to review certificates of insurance. The only way to vet the subcontractor's insurance program and to analyze any problematic exclusions is to obtain full copies of all subcontractors' liability policies before they start work on the project. An employee or a consultant hired by you should review the policy for compliance with the contractual insurance provisions. Ideally, your company should keep, and keeping subcontractors off-site until each completion of your review and the correction of any deficiencies. If you can't analyze the whole policy, you should at the very least request the declarations page and a list of the forms included in the policy. Reviewing the list can alert you to potential exclusions.
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Attorney at Dinsmore & Shohl, Llp
| 167 reviews
Jun 6, 2020
I agree that reviewing the policy is going to be the only fool-proof way to confirm that there aren’t any harmful exclusions. If that’s not an option, or is only an option on a few, very large projects, then consider updating your subcontract agreement to include a provision that mandates minimum coverages and requires the sub to confirm and verify to you in writing that those exclusions do not exist. You could also include language making these material representations and providing for liquidated damages or indemnity if the subcontractor is wrong or misrepresents the information to you. This doesn’t guarantee the exceptions won’t exist, but it will give you a strong contractual claim against your subcontractor and puts them on notice that they need to take their insurance policy seriously. Many of them can probably forward the provision to their agent to receive confirmation of the exclusions. This will allow you to make a list of the prohibited exclusions once, put it in your contract, and then use it across the board. Because insurance issues are complex, I highly recommend you consult with an attorney to help you put together such a provision. Feel free to reach out if you have other questions. **nothing in this post should be construed as legal advice or as creating an attorney client relationship. Posts here are not privileged and are not attorney client communications. This is not a solicitation for an attorney client relationship.
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