In the February 2021 issue of Properties Magazine, Jeff Brauer and Andrew Agati‘s article on “Protecting Your Project from Insurance Jargon” provides guidance on protective indemnity and rectification coverage in plain English.
Hahn Loeser attorney Matt Grashoff and Brian Hoagland of Oswald Companies join Tim Linville and Glen Shumate of the Construction Employers Association on this episode of the Construction Employers Podcast to discuss the impact of the Ohio Supreme Court’s decision in the Charles Construction case on construction insurance.
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Beware! On October 9, 2018, the Ohio Supreme Court issued a final ruling that, not surprisingly, will effectively eliminate meaningful insurance coverage for contractors, subcontractors, and owners for defective construction work. The most recent ruling reaffirms what experienced construction counsel cautioned for years; project participants cannot rely on comprehensive general liability (“CGL”) insurance coverage to remediate defective or non-conforming work. According to the Ohio Supreme Court, although defective construction work causes “property damage,” that damage is neither “accidental” nor “fortuitous” and, therefore, represents an “ordinary business risk” that members of the construction industry must manage without recourse to insurance proceeds. It does not matter that the cause of loss was defective work of a contractor or its downstream subcontractor. This decision is a significant, if not insurmountable, bar to insureds forcing insurers to defend defective work claims, pay for expert evaluations, or to fund settlements under standard coverage forms that have permeated the Ohio construction industry for decades. The Court held that, under the terms of these form insurance agreements, no downstream insurance coverage exists for damages arising from defective work of a subcontractor. Ohio Northern University v. Charles Construction Company, et al. (Ohio Supreme Court, October 9, 2018)
It is critical that industry participants understand the far-reaching and long-term effects of the Ohio Northern University decision and take prompt action to evaluate and mitigate risk or loss. The decision reaffirms and expands the Supreme Court’s 2012 ruling in Westfield Ins. Co. v. Custom Agri Sys., Inc. to the detriment of Ohio’s construction industry participants since it involved a contractor’s policy, and it denied coverage under standard “products completed operations” (“PCOC”) endorsements. For years, insurance agents and insureds’ assumed PCOC endorsements and related policy provisions covered losses arising after substantial completion to the extent the cause of loss was a subcontractor or other lower tier’s defective work. The October 2018 Supreme Court ruling will also impact available insurance coverage for work performed out of state if a contractor’s or subcontractor’s CGL policies are governed by Ohio law.
On October 9, 2018, the Ohio Supreme Court ruled that general liability insurance purchased by a contractor does not cover the defective work of its subcontractors. As a result, even with additional subcontractor coverage, a commercial general liability (CGL) policy does not cover downstream defective work.
Continue Reading Ohio High Court Rejects Coverage for Defective Work of Subcontractors