June 15th, 2018

California Supreme Court holds that commercial general liability policy covers employer for negligent hiring, retention, and supervision of employee who intentionally injures third party

By, Mark A. Boyle, Esq.

In Liberty Surplus Insurance Corporation vs. Ledesma & Meyer Construction Company, Inc. (L & M), the California Supreme Court found that the standard commercial general liability (“CGL”) policy provides coverage when a third-party sues an employer for negligent hiring, retention, and supervision of an employee who intentionally injured that third-party.

L & M was sued by a third-party who alleged that they have been abused by an employee of L & M.  Specifically, L & M was sued for negligence by hiring, retaining, and supervising the employee that conducted the abuse.

The legal issue involved in the case was whether under the CGL policy issued to L & M, the claims constituted and “occurrence“ and “accident“ within the meaning of the CGL policy.  The CGL policy provided coverage for “bodily injury” caused by an “occurrence.”  The policy defines an occurrence as an “accident.”

The court found coverage even though the acts of one of the employees was clearly intentional, specifically noting:

Because liability insurance is a contract between an insurer and insured, and the policy is read in light of the parties’ expectations, the relevant viewpoint is of the insured rather than the injured party.

Thus, California, consistent with most jurisdictions, held that coverage is available under a CGL policy to an insured as long as the damages are not subjectively intended or expected from the standpoint of the insured.

In this respect, California law is in conformity with the overwhelming majority of jurisdictions who have decided this issue.  See Carylye King vs. Dallas Fire Ins. Co., 85 S.W. 3d 185 (Tex. 2002); Lamar Homes, Inc. v Mid-Continent Cas. Co., 242 S.W. 3d 1 (Tex. 2007); State Farm Fire and Casualty Co. v CTC Development Corp., 720 So.2d 1072 (Fla. 1998);  George Koikos v Travelers Ins. Co., 849 So. 2d 263 (Fla. 2003); and Travelers Indemnity Co. v PCR Inc., 889 So. 2d 779 (Fla. 2004) All of these cases hold that bodily injury and property damage claims are covered under the CGL policy unless the damage was intended or expected from the standpoint of the insured.  This is true even if the insured intend the conduct giving rise to liability.

The California ruling affirms the broad coverage which was intended to be provided under the standard commercial general liability policy.

November 12th, 2013

What is the Scope of Your Additional Insured Coverage?

What is the Scope of Your Additional Insured Coverage?


by Amanda K. Anderson, Esquire

Boyle and Leonard P.A.


  1. Types of Additional Insured Endorsements

There are many variations when it comes to additional insured endorsements, but there are a couple main categories of additional insured endorsements. Additional insured endorsements can be separated into two main categories, scheduled and blanket. The most common scheduled endorsement is the 20 10 11 85, which commonly states “WHO IS AN INSURED is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your work” for that insured by or for you.” On the other hand, blanket additional insured endorsements are typically dependent on the existence of a written contract which has been executed prior to the loss. Blanket language typically consists of some iteration of the following: “Who is an insured is amended to include any person or organization that the insured has agreed or is required by contract to add as an additional insured.”

An examination of the particular language in the endorsement is vital. There are three phrases which are typically used: (1) “arising out of”; (2) “caused, in whole or in part”; and (3) “because of”. Additional insured endorsements which cover damages “arising out of” the subcontractor’s work are the broadest of all the endorsements. See Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005). In Florida, courts have universally ruled that the additional insured is insured for its own liability under the “arising out of” language. See Koala Miami Realty v. Valiant Ins. Co., 913 So. 2d 25 (Fla. 3d DCA 2005); Monticello Ins. Co. v. City of Miami Beach, 2008 WL 906537 (S.D. Fla. April 3, 2008). Thus, the additional insured has coverage for its own negligence and not just the additional insured’s vicarious liability. The “in whole or in part” language gives coverage to the additional insured so long as there was any fault on the part of the named insured. See Zep Construction v. Interstate Fire & Cas. Co., 18 Fla. L. Weekly Supp. 65a (Fla. 12th Cir.  2010); Am. Empire Surplus Lines Ins. Co. v. Crum & Forster Specialty Ins. Co., 2006 WL 1441854 (S.D. Tex. May 23, 2006); and Penn Nat’l Mut. Cas. Ins. Co. v. Ipsco Steel (Alabama), Inc., 2008 WL 4183345 (S.D. Ala. Mar. 10, 2008). As such, additional insured coverage under this language is not limited to vicarious liability.  Lastly, additional insured status providing coverage to additional insured “because of” named insured liability has been held to be limited to mere vicarious liability. See Garcia v. Federal Ins. Co., 969 So. 2d 288 (Fla. 2007).

  1. Ongoing Operations Limitation

Many additional insured endorsements contain language which limits coverage to damages arising out of the named insured’s “ongoing operations.” Whether that phrase is intended to remove coverage for damages included in the “products completed operations hazard” is unclear. However, most of the courts interpreting this language have found that without more limitation in the endorsement to make clear that there is no coverage for completed operations, the “ongoing operations” limitation is insufficient to removed completed operations coverage. See Tri-Star Theme Builders, Inc. v. OneBeacon Ins. Co., 426 Fed.Appx. 506 (9th Cir. 2011); McMillin Constr. Servs.,L.P. v. Arch Specialty Ins. Co., 2012 WL 243321 (S.D. Cal. Jan. 25, 2012); and Jaynes Corp. v. American Safety Indem. Co., 925 F.Supp.2d 1095 (D. Nev. 2012). But seeColorado Cas. Ins. Co. v. Safety Control Co., Inc., 288 P.3d 764 (Az. Ct. App. 2012). 

III.           2013 ISO Amendments 

In April 2013, the Insurance Services Office, Inc. (“ISO”) revised its standard CGL forms and endorsements, including 24 of its 31 standard additional insured endorsements. The revised ISO endorsements contain three significant modifications of particular concern to contracting parties: coverage is provided “to the extent permitted by law”; coverage “will not be broader than” the contract; and limits are the lesser of the contract requirement or the policy declarations.

One of the revised additional insured endorsements now states that the insurance afforded to the additional insured “only applies to the extent permitted by law.” This provision was presumably inserted to address state anti-indemnification statutes. Another additional insured endorsement option, which could be added to a policy, states: that if the coverage is required by a contract or agreement, the insurance afforded to the additional insured “will not be broader than” the coverage that the insured is “required by the contract or agreement to provide.” It seems likely that the new language is intended to incorporate into the insurance policy any express limits on additional insured coverage that the parties have specified in the contract; for example, where the contract specifies that additional insured coverage will only extend to vicarious liability. The last major change reflected in some endorsements states: that the most the insurer will pay on behalf of the additional insured is either the amount “[r]equired by the contract or agreement”; or the applicable Limits of Insurance shown in the Declarations, whichever is less. The intent of this language is to limit the insurer’s exposure to the lesser of the policy limits or the amount agreed to by the contracting parties.

Certainly, all general contractors and subcontractors should be aware of these changes and adjust their contracts accordingly.







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