Hi, and welcome to today's webinar, Additional Insureds, Who, What, Where, and Why Not, hosted by Inland Marine Underwriters Association. I'm Eileen Monreale, Education Training Specialist at IMUA. Thanks for joining us today. A few technical tips before we begin. You'll find your attendee control panel on your screen. It may minimize by default. At any point, you can right-click on the orange arrow to bring it back. Also, you can select View on the top of the control panel and uncheck the auto-hide option. You can also download a PDF of the presentation under the handouts. There is a question box in the control panel. We will take your questions at the end of the presentation, but you can enter them at any time. To encourage your questions, IMUA will email a $25 Amazon gift card for the most slash best engaged attendee. It's a combo of those two criteria and really to also demonstrate our appreciation of your attendance today. So let's get started. I'm honored to introduce today's presenters. Joe Grasso is partner in Wigan and Dana's Litigation Department and co-chair of its insurance practice. Joe's work includes insurance coverage, defense and subrogation, drafting of policy wording, and monitoring of claims. Joe has worked in the general counsel's office of one of the premier syndicates at Lloyd's of London. He has chaired the standing committee on marine insurance of the Committee Maritime International since 2014 and served as chairman of the Association of Average Adjusters of the United States and Canada from 2021 to 2023. He is also a member of the Salvage Forum of the International Union of Marine Insurance Union. In 2020, Joe was approved as NATO civil maritime expert in the field of insurance and provides advice and assistance on war risk insurance and related issues to the NATO Transportation Group Ocean Shipping. Joe also sits as counsel to AIMU and IMUA. Along with Michael Menapace, Joe has edited and or authored treatises on additional insured and on the CGL policy. We're also honored to have with us today Michael Menapace, who is co-chair of the insurance practice at Wigan and Dana, along with Joe Brasso. He is a non-resident scholar at the Insurance Information Institute, a fellow of American College of Coverage Council, and professor of insurance law at Quinnipiac University School of Law in Connecticut. He defends insurers and complex coverage actions, class actions, and other high stakes litigation in a variety of first and third party insurance lines, including cyber and other specialty lines. Michael publishes regularly and is an in-demand speaker on topics that include artificial intelligence, the metaverse, third party litigation funding, and use of experts in insurance coverage litigation. Prior to practicing law, Michael was a college music professor with an active national and international performing career. And I should have moved to this slide. Here are Joe and Michael. Joe and Michael, we're thrilled to have you with us today. The floor is all yours. Thank you, Eileen, for that very kind introduction. It's a little bit long-winded. I know we're supposed to be brief with our bios, but we tried to cut it down. And I'd like to thank IMUA for giving us the opportunity to talk to you today about the scintillating topic of additional insureds. As you can see here, when I asked Michael if he would co-present with me on AI, I think he got the wrong idea and thought we were talking about artificial intelligence. So you see his avatar there on the screen. And I will say that Eileen referred to a book that we co-edited. And here it is. It's published by the American Bar Association. It's called The Handbook on Additional Insureds. It's 465 pages long. We didn't write it. We edited it. We wrote sections of it. But that's just by way of saying that we're going to try to cram into one hour or 55 minutes now what we could spend days or weeks talking about. So hopefully you'll find it of interest. And just here's the agenda. I'm just going to briefly go over what we're going to talk about today. First we'll talk about the nomenclature, named insured versus additional insured. We'll talk about lost payable provisions, how they differ from additional insured coverage. And then getting into sort of more of the meat of the presentation, we'll talk about hold harmless and indemnification agreements, anti-indemnity provisions, required insurance for additional insureds, memorializing status of additional insureds. We'll look briefly at some common additional insured forms. We'll talk about the duty to defend and indemnify in the context of additional insured coverage. We'll talk about the scope of coverage. We'll talk about subrogation as it's impacted by additional insureds. And then maybe a little bit out of order, we're going to talk about choice of law. And you'll see why when we get there, that's such an important topic. We'll touch on insurability of punitive damages in the context of additional insureds. Notice and late notice limits issues. And finally, ethical issues for defense counsel, we'll be very brief on that. And if we have time, we may just mention a couple of issues that arise in the context of builder's risk insurance. And I will say, so we're going to do this presentation in the context of both property and liability coverages. I think where we see the most thorny issues are under the liability coverages. Obviously, on the Inland Marine side, we're dealing with property coverage most significantly. And most of the case law and legal issues that have been decided really arise in the context of construction projects. So a lot of the cases involved and a lot of the concepts we're going to be talking about arise in the context of builder's risk. But these issues also arise in other Inland Marine lines. And at some points during today's presentation, we may refer to a recent engagement we had by a cultural institution and their coverage under their fine art policy. And there were some thorny additional insured issues in connection with that engagement. So I'll turn it over to Michael to cover some of the nomenclature and the concepts there. Thanks, Joe. Let's see, let's get the make sure we advance the slides here. You know, words matter. And you know, I talk about this with my law students, really, in the first couple of weeks, I really want to make sure that they understand the words that we use. And here in specific, we all know the term named insured. And then, but there are a few other words, a few other phrases that we're going to use throughout this program and courts have used sometimes consistently, but other times the courts even mess them up. So it's important for us as professionals, to make sure that we're guiding courts and others to really use the proper terminology because they do matter. You know, oftentimes I see AI, and of course, now I think, you know, artificial intelligence, but in the insurance context, we talk about AI. Sometimes we people really referring to what we call automatic insureds. And automatic insureds are really just an extension of named insureds. But the automatic insureds get coverage due to some special relationship that they have with the insured could be a stockholder or a parent corporation or something like that. But generally now, and we're going to talk about AI, we are going to talk about additional insureds. And those additional insureds can really come in one of two flavors. They come because they're either named additional insureds or where they are actually listed, or they get status as additional insureds because they meet a definition, and they're not specifically named. Obviously, the named insureds, as we talked about this, are persons or organizations specifically named in the policies. And those can be natural persons, corporations, LLCs, partnerships, really any time of organization. However, generally, and I've seen this the past few years, a number of policies that are groups of entities that are affiliated, but do not have a common parent corporation. Generally, those are not allowed to be co-insured on the same policies as named insureds or defined as named insureds. They really should be named as additional insureds under that policy. But obviously, the first place we're going to always look for this is on the deck page. We know that. And this is something I go with my law students, I make sure on the very first day we talk about how if the client brings you in a policy or if the other side gives you a policy, you better make sure that the deck page and all of the endorsements are there. So the named insureds are going to be listed on the deck page. But the additional insureds often are not going to be named on the deck page, and there we're going to need to look at endorsements. And typically, there's one or more endorsements on any policy that deal with additional insureds or additional named insureds. And sort of the last thing I want to mention about the nomenclature as we go through is it's really important when we look at the policies, when the policies use the term you and your, typically you and your refer to the named insured. And typically, it's the first name, but we may have a difference between first named insured and additional named insureds. But make sure that as we're looking at this, you really get a good idea of what you and your refer to, because it doesn't necessarily refer to all insureds under the policies. And as we know, there are certain provisions under a policy that apply to all insureds, but other provisions that only apply to first named insureds. We're going to get into a little bit of that later. But just as an example, the first named insured is required for paying premiums, or is entitled to cancel policies. So it is important to understand what kind of insured we're dealing with and using the correct language under the policies. So that's sort of a little bit of housekeeping, you know, as we get the nomenclature set up. Would help if I unmute myself. Thanks, Michael. And I think one of the issues you just raised is the importance of the policy wording itself. Obviously, vitally important to have clear policy wording, whether it's in the deck page, the policy conditions or endorsements. So let's move to lost payable provisions as distinguished from additional insureds. Two separate things, lost payees do not generally have the same rights as additional insureds. And of course, this arises most commonly in the context of lenders to the named insured, who will require that or may require that a policy named them as lost payees. And typically, it's as their interest appears, which is a term of art, I'm sure you've all heard. And really what that means is it links the coverage back to the interest that the lender or the lost payee has. So there are mortgage clauses and lost payable clauses. Mortgage clause is just what it sounds like it typically would be included for a real estate lender. And it's essentially a separate insurance contract between the insurer and the mortgagee. So it's not contingent on coverage for the named insured. The mortgagee has its own rights against the or under the policy, I should say. And that's just distinguished from a lost payable clause and which we'll look at an example in a second here. But lost payable clauses arise commonly, for example, in personal property purchases. You know, if you buy a car and finance it, the financing company is going to be required to be named as a lost payee in your auto policy. So in that case, a lost payee's rights are derivative of the named insured's rights. They don't have separate rights. They're not an insured or an additional insured under the policy or just simply a lost payee. It does provide rights to claim proceeds. Again, depending on the wording in the clause, it could provide a lost payee with other rights. It could require that the insurer give notice, for example, notice of cancellation or notice of delinquency on premium payments to the lost payee. But it doesn't necessarily require that. And it raises separate coverage issues in the event there is a coverage issue. And as I said, typically lost payees really don't have the same rights as insured's, whether they're named insured's or additional insured's. So let's take it. I say, Joe, sometimes that can cause a little tension. I know I from time to time I talk with brokers and, you know, the party may be insisting that they be named as an additional insured as opposed to a lost payee. And we have to explain sometimes that there are times when being a lost payee, even though they don't have all of the same rights as an insured, is actually in a superior position. And, you know, just as two examples of that, there are certain policy conditions that have to be met for all insured's that a lost payee may not have to meet. And so in that sense, the rights may actually be a little bit broader. And the other thing we point out is very often we have policies with exclusions for, you know, the insured versus the insured exclusion. And which does not apply to a lost payee. And if someone insists on being an additional insured, there may become a time where they have to contend with that exclusion. So, you know, it's the lost payee, you know, is not a subservient position. And sometimes it's actually more preferable than being actually named an additional insured. Yeah, absolutely. Thank you, Michael. Well, let's just take a quick look at a sample here. Oops. So this is, in spite of the fact that it's got one of the insurance company's logos on it, is an ISO form. I know you all know what ISO is. So we're not going to go into that. But here's a typical lost payable clause. And again, it's got the wording as interest may appear. And it really just provides that the claim proceeds will be paid to the lost payee. And it also provides that your right to claim proceeds will not be impacted by fraudulent acts or coverage issues arising with respect to the named insured. It goes into then say that the insurer will be subrogated to the lost payee's rights of recovery the same as they would be subrogated to an insured's rights of recovery. We're going to talk about subrogation separately. So I'm not going to dwell on that too long. So we have a first poll question here. You want me to set that up? Do you want to jump in and just set this up with a little insurable interest discussion first? Or do you want to go right to the poll, Joe? No, that's a great idea, Michael. Because, yeah, I think we should go in just to mention what insurable interest is before we get to the poll. Sure. I mean, it's a pretty, you know, it's a foundational concept that we have. That the fundamental purpose of the insurable interest concept is to really to prevent wagering and to discourage the destruction or impairment of the insured property. And this is a real concern. So forgive me, I'm going to take just a quick 90 second spin through history. But, you know, imagine people wagering on whether a ship would make it to its final destination. And somebody taking out insurance on that ship, they may have a, you know, an incentive to make sure that ship doesn't get to where it's supposed to be. This was a real issue such that, you know, back in the mid 1700s, I think it was 1746 or so, by an act of Parliament actually required individuals to have an insurable interest in that ship in order to take out insurance on it so that we didn't provide these perverse incentives for things to, you know, bad to happen to the property. And, but it, you know, it's fairly easy to obtain an insurable interest. It's really any economic benefit that you would get from the continued existence of that property. Or on the flip side, if you would suffer a loss from its destruction. It doesn't require actual title or a lien or possession. It really is that, what is the incentive that we're putting in place so that people preserve property? You know, this could be legal title, could be equitable title, it could be a possessory right, or really anything else in that regard. So, you know, Joe, let's talk about that in this poll question now. Yeah, thank you, Michael. So, yes, so insurable interest. And our first poll question here is now a softball, I think. But the question is, does a mortgagee, which is typically a lost payee, have an insurable interest in the property insured? Yes or no? We'll give you about 15 seconds to answer and then we'll put up the answer. Hopefully, after what you just heard Michael say, it'll be overwhelming. Yes. Very good. So 97% of our audience is still awake, Michael. Yes. And there, if we look at the incentives, yes, the mortgagee has an interest in making sure that the property continues to exist. That's, you know, it's collateral for the loan that it has given out. So, you know, that's a fairly straightforward one. But let's get into one that is a little bit more complicated. So let's advance this over to, okay, there we go, I went through it. Okay, so here's the situation. So policyholder owns a vehicle, has a bona fide belief that he holds proper title to that vehicle. But after a loss, the owner discovers that the vehicle prior to his ownership was actually had been stolen. So he does not hold clean title to the vehicle, nevertheless puts in a claim for a loss or damage to the property. And the question becomes, does the policyholder have an insurable interest when it actually does not hold clean title on the property? So again, same thing. We'll open this up. We'll give people a few seconds here to vote on whether this is an insurable interest. A little bit more difficult question here. It is. This one makes a good law school question when I give it to my students on their final exam. Yeah, I would expect that. So my initial reaction to this always is, of course not. How can you have an insurable interest if you don't have title? But if we go back to the premise of, does the owner have an incentive to keep the property in existence, the courts have said, and this is actually in Virginia, this was a real case back in the 1980s, that an owner who has a bona fide good faith belief that he owns the property does have an insurable interest such that they could take out insurance on the property. And the rationale there is, if you think you own the property, you have the correct incentive to keep that property in existence or to prevent its destruction. So I like the fact that it came out 50-50. And it provides a real good example that, at least with insurable interest, we want to think about incentives. What incentives are we providing and what does the law do with those? OK. So let's move on. Michael, you mentioned that was a Virginia case. I'm just giving a little bit of a preview on our choice of law discussion later in the presentation. Yes, indeed. I think we need to go back one slide. There we go. Nope, I think we're good there. I think we're moving on to hold harmless now. So let's jump in. And what I'll do is I'm going to set this up, because I put in the reference here to the, I'm sure you'll all remember the 1990s country music band Blackhawk. And I know most people didn't realize they're also great insurance and legal authorities as well. So we thought we would start there. They're very famous. I'm sure you all know the lyric. There's nothing else I can do. I'll always love you, baby. Show some kindness and hold me harmless. We'll all be walking out of here with the earworm. Actually, basically, I joke. I doubt many people on this call remember Blackhawk. But nonetheless, hold harmless, Joe. Let's talk about it in the context of AI, not country Western music. Yeah, thank you, Michael. Thank God. I'm not familiar with Blackhawk. I probably should be, but I think it fell between when I was listening to music and current times. But in any event, we're sort of getting into part of the meat of where thorny additional insurer issues arise. And it's often, I said at the beginning that we're going to talk about builder's risk in construction projects. And of course, there's an underlying contract for construction projects and for building projects. And this is where a lot of thorny additional insurer issues arise in connection with provisions in the construction contract, the contract between the owner and a contractor or between a contractor and subcontractors and related issues. Those contracts, those underlying contracts we're going to call them, almost invariably have hold harmless and indemnification clauses in them, which at the very basic level just say that the parties will indemnify each other for claims that arise from the party's own negligence. So if you and I are into a contract, I do something wrong and someone gets hurt, I should pay. You do something wrong, someone gets hurt, you should pay. That's in its simplest form. And that's actually a mutual indemnification obligation. We call that a knock for knock indemnification clause. Hold harmless and indemnification clauses can run the gamut and provide literally just about any sort of risk shifting mechanism. But I think the most typical ones are the one I just mentioned, which is a knock for knock provision where the parties really are trying to apportion risk to whichever party is responsible for an ensuing loss. So scope of obligations will be governed by the precise wording in the contract, in the underlying contract. There is a question about how those provisions can be enforced or not enforced. So in other words, if you and I have a contract and I say to you, you're going to indemnify me for any loss, no matter how it's caused, even if I do something wrong or intentional or grossly negligent, that typically would not be enforceable because the scope of the indemnification obligation is too broad. We're going to get to choice of law in a little while. We probably did that backwards. Probably should have talked about it first. But that, like insurance coverage, is governed on a state law basis. So you have to figure out which state law applies. But in general, most states don't permit parties to be indemnified for their own grossly negligent, reckless, or intentional conduct. Almost no state allows that. The states vary on whether you can indemnify someone for being indemnified for your own negligent conduct, just plain negligence as opposed to gross negligence or recklessness. So you have to know what the scope of the indemnification and hold harmless agreement is in the underlying contract if we're talking about insurance coverage for indemnification obligations. And here we say it's tied to additional insured obligations because in most contracts, there is a hold harmless and indemnity clause. And then separately, there is a clause requiring the indemnitor to provide insurance coverage on an additional insured basis to the other party. So again, it's sort of knock for knock. Both parties indemnify one another for their own wrongful conduct or negligent conduct. Both parties agree to have insurance coverage for the other party where it's tied back to that party's negligence or causative conduct, is the way I'll put it. Yeah, Joan, you mentioned it. You mentioned it. But really what happened was these really got out of hand. These hold harmless provisions. And parties were trying to get others to indemnify them for their own negligence. And so legislatures got involved. And that's where we start talking about anti-indemnity statutes. Better get back here. All right, so you want the other part to cover you. And the other side says, sure, I'll cover you. But we need to really take a look at whether they're allowed to cover you. And we're not talking about indemnifying another party for your negligence. What we're talking about now is promises to indemnify somebody else for their negligence. And so the state legislatures got involved. And now about, you know, and because there were really unequal bargaining positions. We're talking about general contractors and then, you know, subcontractors down the line who really wanted to get on the job but had no bargaining power. So the state stepped in. And about 44 states now have adopted some form of anti-indemnity statute. And they vary in scope. They vary in the types of contracts to which they apply. Almost all of them apply to construction contracts. But, you know, for example, Arizona and New Hampshire have brought in those to architecture and engineers. Pennsylvania has limited clauses that apply to indemnifying architects and engineers only to their own negligence. Kansas has a much broader application. And it applies to motor carrier transportation contracts, dealer agreements, franchise agreements. Louisiana has one that applies to contracts with public entities. Wyoming has an anti-indemnity statute that applies to oil and gas contracts. So there really are all over the place. And when we're talking then about insuring them, not just the home harmless, as Joe mentioned, we really need to understand what the subcontractor or the vendor is agreeing to in the whole harmless and how is that impacted by the state law that it's in. So, you know, that's really what we're talking about. And you're going to see this theme throughout this entire presentation about understanding what state you're in and how the choice of law really brings that in. But here, what we want to say is the majority of the states do limit indemnification to the party's own negligence. So as the indemnifying party, I can only indemnify you for things that I'm responsible. The minority of states, it is a little further limited in scope. Some will limit it to willful acts of the indemnity or vicarious liability claims. And then we need to talk about what about that AI loophole? If you can't indemnify somebody for negligence, can you, or their own negligence, can you agree to get them additional insured coverage? You know, to get around the anti-indemnity provision, can you just get them insurance? And a few states have actually noticed that this is a bit of a loophole in their anti-indemnity statutes. And some of them have instituted statutes to close what they see as the AI loophole. And for example, Oklahoma and Oregon. Oklahoma says when the anti-indemnity statute applies, you also can't shift the liability via insurance. Oregon has a similar provision. So that's an important issue. Sometimes people try to get around it, but just because it's insurance doesn't mean that we can get around the anti-indemnity statute. Yeah, and that's a good way to tie it back into the, you know, the audience may be saying, why are you talking about these indemnity provisions and hold harmless in construction contracts and other types of contracts? It's because it's always tied to the obligation or typically tied to the obligation for one of the party or both parties to name the other as an additional insurer. So you need to know, you know, when you're addressing coverage under your policy, you need to know what the underlying identification agreements provisions are and whether they're enforceable or not. So let's transition into, you know, so we have the hold harmless provision, and now we have a provision in the contract that requires the subcontractor or vendor to get or to name the upstream contractor as an AI. How does that done? Well, typically in the underlying contract, you know, A is obligated to obtain certain coverages, specified at monetary level. Often it says for claims for bodily injury or personal injury, property damage at its sole cost and expense. So subcontractor, you need to get your own insurance at these levels, and then it will continue and say something to the effective and for the mutual benefit of B, meaning the general contractor. So you need to get insurance for yourself and it could be as obtuse as this. This one is a little bit vague, you know, and you need to get for the mutual benefit of B. Courts have upheld these kind of contractual provisions as meaning you need to get additional insured coverage. I will tell you most of the time when we look at these underlying contracts, it is more explicit where it says you need to get insurance for yourself and you need to have us named as an additional insured or make sure we are covered as an additional insured. Now, how is that then done in the insurance contract? Sometimes it is done automatically. In other words, the insurance contract can be written in a way that others get AI coverage by virtue of a relationship with the named insured. Maybe a spouse, a shareholder, a director, officer, et cetera, but it could be an authorized distributor. So it doesn't necessarily need to be within the same corporate family. It could be a club member, a lesser of real property for et cetera. They really vary and we'll say ISO actually has more than 28 different types of endorsements with differing language on how someone becomes an additional insured and the scope of that additional insured coverage. So there's lots of variation out there. There's some tried and true ones we're gonna talk about in a minute, but there are multiple ways to get to the place where we add somebody as an additional insured. Now, one of the most common is the situation where the policyholder is faced with repeated demands for AI status by multiple parties. And so it's very common now for the use of what we call a blanket AI endorsement. And this blanket endorsement is used when the promisor agrees to add the promisee as an AI to its insurance contracts. And typically that's all that is required. In other words, the underlying contract says, I promise to add you as an additional insured under my insurance contracts. And then what we do is we look at the insurance contract and if it has a blanket endorsement, the blanket endorsement says, we will agree to add as an additional insured anyone that you the policyholder have agreed to add as an additional insured. Doesn't name them, just says, if you promise to add somebody as an AI, we're gonna give them AI statute. It can be that broad. Sometimes it's limited, says we'll, but sure, we'll add them as an AI during the promisor's ongoing operations on the construction project, for example. So it can limit it, but nonetheless, it can be really broad that we promise to add you and the insurance contract says, we'll add you if you have promised to add them. Just one other limitation that sometimes we see or not a limitation, one other requirement is that that general contractor may say, sure, get insurance at these levels. And you need to make sure that I'm an additional insured on a primary and non-contributory basis. And that's because the additional insured wants to make sure that the additional insurance takes over first before his or her own insurance gets tagged for that loss. So we see that pretty often as well. It's very common. It's not always required. I would say the more sophisticated the parties are in their insurance requests, we see this that it must be on the primary and non-contributory basis. Joe, anything you wanted to add there? No, I think that's very comprehensive. I think you're going to have a quick look at a typical clause here. Yes. Let's see. We'll go to the next slide. I will just say. Yeah, so there it is. There's a typical. So the insurance certificates indicating the above coverage are in place and shall be submitted to, and we're going to get into the middle of this and we're going to get into like the middle of this project or paragraph and says, each insurance certificate must contain as evidence the required endorsements and following, adding blacked out the name and other interested parties as designated by the party or the contract documents are additional insureds on a, here's the language, a primary non-contributing basis as the GL auto policies and the waiver of subrogation applies to all of these policies. This is a pretty typical contract provision that we would see. Yeah. I would refer this to as a mandatory insurance provision in a construction contract or any other contract where the one party is required to provide insurance coverage in the form of AI coverage to the other to support the obligations of the party under the contract. All right, well, let's move to memorializing additional insured status. And I wanted to talk a minute about the difference between certificates of insurance, insurance policies, endorsements, slips and binders. Sometimes we find that these terms are used interchangeably particularly by non-insurance people. So I wanna spend a minute or two just going through what each one of these is. And I know that most, if not all of you understand what each of these represents. But certificate is something typically issued by a broker or an agent, which is providing evidence to an additional insured that they have coverage under a policy of another party. It is not an insurance policy. It's not a contract. It's just simply providing evidence that one party has done what it's promised it would do in terms of getting coverage for the other party. As distinct from the insurance policy itself which is the contract and which is the only document that can really determine where coverage lies and doesn't lie. So we quite often see clients come in and say, I've got the certificate. I obviously have coverage. And we have to say to them, well, we need to see the policy because the certificate is not policy. Endorsements are just simply modifications to the contract or to the policy. And then slips and binders are more akin, not more akin but more like certificates in that they are a summary of a contract, but not the policy itself. They may substitute for a policy in the event that a loss occurs before a policy is issued. But a slip or a binder is typically a summary of the relevant terms of coverage. So AI status can be memorialized in any one of these documents but the only one that has operative effect is the policy itself. So if you wanna make sure that you've got AI coverage you wanna have a look at the policy not just a certificate or a slip. And we'll turn to some ISO, some common ISO form that provide additional insured status. Sure, and there's a ton of them, right? I mentioned before, there's more than, there's close to 30 of them that are out there. And these are just some of them. Some of them are blanket AI endorsements, which I mentioned before. Some of them actually have scheduled of names. They apply to different lines, as you can see here, commercial auto, workers comp, et cetera. And they do vary in wording as well. The trend over the years, the original intent for AI coverage was generally that for vicarious liability. In other words, if I'm going to be sued by something you did, I want your insurance to cover me for that. That was the original intent of the AI coverage. But as policyholders have challenged these and courts have broadened them, we've had to change the wording. Some of the older and most, actually still most used AI endorsements use arising out of language. In other words, you get additional insured coverage for losses arising out of my, the policyholders acts and omissions. Arising out of then got broader than, was interpreted to be broader than just vicarious liability. And some of the more recent AI endorsements have eliminated the arising out of language. And instead of use this caused in whole or in part by language, trying to get back to limiting AI coverage, is really the vicarious liability. They haven't been widely adopted. ISO does have some of these. I see them more often in excess surplus lines, manuscripted policies. Even I've seen some go as far as we're restricting these, the AI coverage to claims that are the sole negligence of the named insured. But let's also talk about a couple of others here. Let's go back. Here we go. Here is ISO segment, CG 2026-04-13. Just as a reminder, when ISO puts them out, they give them the nomenclature. So we have CG 2026. And then the second two numbers are the month and the year when it was published. So this is the form 2026. The version that was from April, 2013. Not all forms 2026s are the same. And in fact, the words have changed over the years. Nevertheless, let's take a look at this one. So here, this is an example of an endorsement where the additional short is actually named in a schedule. So who's insured, amended to include the additional insured in the persons or organizations shown in the schedule. And then it goes on. Only with respect to liability for bodily injury, property damage, advertising injury, caused in whole or in part by your acts and omissions. Okay, so this is really typical. This is a more recent AI type endorsement. But in the construction contract, I've actually seen that general contractors say, you need to add us as an additional insured via form 2026, but they don't use the 04-013. They want the prior version, which is actually broader than caused in whole or in part. It includes the arising out of language. So we may see that. You may be asked for language that tracks specific versions of the ISO policies, or is at least as broad. The other thing I'll just point out for this version is down in below, and we're gonna come to this later when we talk about limits. But it also says that the AI's coverage is not going to be broader than the coverage, the named insured agreed in the underlying contract to get, right? And we're gonna bring that up, but I just wanted to highlight it here, Joe. Yeah, yeah. And just to go back again, there are two questions. Number one is, does a party qualify as an additional insured? I.e., are they named specifically or are they part of a blanket group that's been granted coverage? And then two is, what's the extent of scope of coverage for the additional insured? And again, typically it is for losses arising from the actions of the named insured and not broader than that, which makes sense because a party named as an additional insured should have its own insurance to cover its own negligent or wrongful acts. So, and I just wanted to mention on the prior page that there were a number of ISO forms listed, one of which is specifically for architects, engineers, and surveyors. And again, hearkening back to the builder's risk and construction contracts. And that form, that ISO form, it again, limits coverage for architects, engineers, and surveyors to acts of the named insured. So in other words, acts of the owner or a general contractor that get the architect, engineer, or the professional sued. So they're providing coverage for, not for the architects, engineers, and surveyors own wrongful conduct, but for the wrongful conduct for which they might be sued. And then also that particular form does not provide any coverage for completed operations, which makes sense, again, because these professionals should have their own coverage, which, you know, for their own negligence for wrongful acts. So let's just move to this form here, which is one that we saw recently. And this is a relative, in our experience is a relatively new form. And this is not called an additional insured endorsement. It's called a certificate holder endorsement. And the operative part here to look at is it provides that any entity to which a certificate of insurance has been issued under this policy is also an additional insured. So I'm going to caveat what I said earlier about the difference between a certificate and a policy. If you've got an endorsement like this in a policy that says anyone who gets a certificate is an additional insured, then if you've got a certificate, you can feel pretty safe that you got coverage. But it also then goes on to say that the additional insured is protected, strictly limited in scope, and applies only to the liability of those entities arising vicariously out of or attributable to the operations of the named insured. So again, it's limiting the additional insured coverage to things that the named insured does that get the additional insured in the suit. So let's move on to the next topic, Michael. Yeah, so if you actually go out, this is a real place in the world. If you go out to where Utah meets Arizona meets New Mexico meets Colorado, there actually is this placard in the ground. Some of you may have been out there. It's really cool. Exactly where the four corners of the states meet. I just use this to jump into the four corners rule and in the broader concept of once someone is established as an AI, what benefits are they entitled to under the policy? And of course, the first one is we always think about is the duty to defend and the duty to indemnify, which follows on. But really, how do we determine the AIs or the duty to defend an AI? You're an insurance company. And it is the same tried and true method as with named insureds. It's the four corners rule, right? We look at what is alleged in the underlying complaints and we hold it up next to the terms of the policy. And if what is pled in the complaint is true, if anything could be covered under the policy, then we're going to owe that duty to defend. I'm going to say, however, but we have the four corners rule plus. In other words, courts often do and insurance companies often are obligated, however, to look also outside of the underlying complaint. Are there other facts known to the insurance company that would trigger the duty to defend, in other words, trigger potential coverage, even though they're not pled in the underlying complaint? And we're going to come to that in just a minute as an example. But, well, I'll give it to you now. So the example is, well, let me leave it there because we're going to have a poll question on this. But we want to think about the duty to defend in the four corners rule plus. One of the tricks, however, comes in, by virtue of being an additional insured, as Joe just pointed out a moment ago, the party is also going to have their own insurance under most circumstances. And so they're really covered under two policies. So what happens? Of course, now we then have to look at the other insurance clauses in our policies. Some of our policies are going to expressly say, this policy intends to be primary to all other policies. Great, but if we hold the two policies up, we get one of those. And the other policy may very well say, this policy is intended to be excess to all others. So if the AI coverage or the AI policy says it's expressly to be primary and its own coverage tends to be in excess, great, easy to reconcile them. The AI coverage goes first. The excess policy goes second upon exhaustion. But really what happens when there's a conflict? Both policies say we intend to be primary or both policies say we intend to be excess. Well, this is a problem. Courts use a great term for this. When they have these conflicting policies, particularly when both policies say we're excess and everybody else goes first, the courts say these terms are mutually repugnant. It's a great term. We don't get to use the word repugnant a lot in law or insurance. But here's one time when we get to talk about mutually repugnant. The courts look at them and say, well, a pox on both your houses, you're both going first. And then we have the dispute over, well, how do we then divide both of them going first? Most times it's pro rata. So the insurer would owe its pro rata obligations on indemnity. And usually even when we split up the duty to defend, we split it up pro rata, those costs. But some states do have a rule that say, well, the closest to the risk actually goes first. So as an example of that, I was talking with my law students the other day, there was an accident that happened in a school gymnasium. And the person that was sued was covered by the school's insurance policy. And they were also covered by their own homeowner policy. And they were both going to be primary. And the court, however, decided that, no, because this happened in the school gymnasium and the school had the insurance policy, that policy is closer to the risk than the homeowner's policy. And that one is actually going to go first. So a couple of different ways to divide up the obligation when the additional insured has two types of coverage that could apply. So Joe, do you have any thoughts on this before we jump to the poll? No, let's go to the poll. And I think we need to speed up just a little bit because we're running short on time. All right, so here's the poll. Let me go over to it. Okay, actually, did I? So actually, did we go back? Do we have the? I can read the poll, Michael. Yeah, if you would, please. Sure, so there's a general contractor, a subcontractor, an employee. The employee is injured on the job, sues the general contractor, but not the subcontractor for injuries caused in whole or in part by the subcontractor. Is additional insured coverage triggered, yes or no? Hopefully that was somewhat clear. It was, Joe, yes. So the injured party sues the general contractor, but does not sue the subcontractor who's supposed to provide additional insured coverage for his or her acts and omissions. Now, that subcontractor is not named in the lawsuit. Does the general contractor still get AI coverage under looking at that policy or under that complaint? And here, yeah, we have 73, and this is right. And this is why we need to look at the four corners. True, the subcontractor is not blamed in the underlying lawsuit. However, it was the four corners plus. And by plus, we then look at all of that because what had happened here is the employee got workers comp directly from his employer. So of course, they wouldn't be named in the underlying suits. And the courts will recognize that. They say, of course, we can look outside of this. There would never be an instance when the named insured would actually be a named defendant because of the workers comp. Nevertheless, we're gonna look outside that and we are gonna grant the AI coverage. All right. So next is, all right, let's continue talking about the scope of coverage here. There's our poll. Let's go on, let's go one more here. Okay, so what else do we have? What else other than the duty to defend? So generally, once someone is an additional insured, they have the same rights and obligations as the named insured. That's the general rule. Of course, every rule has its exceptions, but that rule covers this 90% of the time. If the named insured is entitled to it, the additional insured is entitled to it. They get the same protections, but it's also important to realize that they don't get protections that are greater than the other. So here we are. Joe, go ahead. Yeah, so another quick poll question here, having heard about the scope of coverage, and it's an underwriting question really, which is how often do you, sorry, there's a couple of typos in this poll, but the question is how often do you as an underwriter review your insured, your client's underlying contracts to see what the scope of indemnification and additional insured provisions is? And the options are all the time, rarely or never. How often do you look at the underlying contracts that your insured's entering to? Okay, that's good. Very, very small portions say never. We're not surprised to see that the, that there's a sort of a spread here, but obviously if you can, it's a good idea to know what your insured's contracts say. Yeah, and the poster child for that, Joe, is as you and I know is, you know, we all remember the BP oil spill, and there was a, there really was a dispute here because one of the parties, BP, did not have its own insurance, and it was looking to get insurance AI coverage from one of its subcontractors or vendors. And the vendor had purchased, I'm gonna make up the numbers now, but the vendor had purchased coverage for $100 million. But the contract between them, BP had said, you need to get us AI coverage for at least, for, or for $50 million. Again, I'm making up the numbers. And the issue was, if the, once BP is triggered as an additional insured, how much coverage does it get? Does it get the full 100, or does it just get the 50 million? And this went through the federal courts in Texas, went up to the federal circuit, or the appeals court, eventually wound up in the state courts, and went all the way to the Texas Supreme Court. And what we, what the rule in Texas is, at least, is that the AI gets limits up to the amount in the underlying contract. So there, BP got the $50 million coverage that it required its vendor to get, not the whole 100 million that the vendor actually did get. And so in Texas, we now have something called, instead of the four corners rule, Texas has the eight corners rule, where you read the complaints and the policy. And actually, with additional insureds, Texas has now the 12 corners rule, where you actually have to compare the underlying complaint, the policy, and then the underlying agreements that grants the AI coverage. So this is a poster child for looking at those other, those other coverage. Couple of other issues, what, sorry, go ahead, Joe. In Texas, Michael. I think we've covered this. In the interest of time, are you okay if we move on to subrogation and some claims issues? Because we just- Absolutely, yes. All right. So, just briefly, sort of moving to the claim side now, I think everyone knows what subrogation is. It's a right that an insurer has to recover from a responsible third party after it's paid a claim. In the context of additional insureds, we have the concept of, and with all insureds under a policy, we have the concept of anti-subrogation, which just says that an insurer can't seek recovery for a loss played to one insured from another insured, or from one insured from an additional insured. So most states support that concept, that concept of anti-subrogation. We wanted to mention waiver of subrogation here, too, which is a separate and distinct topic, where your insured may, with or without your knowledge, be waiving your rights of recovery, your subrogation rights against third parties. And we have a poll question on that, which is, do you require that your clients notify you when they're waiving subrogation against third parties? Yes or no? All right, we would like to see a little bit more yes, but in fact, we've seen, I mean, the prudent thing is, I think, for you to have your insured notify you if they're gonna waive your rights to recover against potentially responsible third parties. And in fact, on the wet marine side, we see clauses to that effect in policies all the time. So they may or may not exist in construction policies, fine art policies, and other types of policies. So let's go, I think we just covered this, the concept of anti-subrogation really is that an insurer cannot recover from one insured for losses paid to another insured. The concept being that the insurers agreed to take on losses caused by the insureds in general or collectively, and so they shouldn't be able to pass the risk of a loss back to a particular other insured. So we mentioned choice of law earlier. Vitally, we probably should have put this at the beginning, but as you all probably know, insurance law in the US is governed on a state-by-state basis, meaning that in order to determine a question of coverage, you need to determine which state's law applies. And the law can vary greatly from state to state. So it's vitally important to understand what state's law is going to apply to any particular dispute. And there's two ways to do that. One is the policy or the contract may have a choice of law provision, in which case it's sort of easy. If not, then you need to undertake a choice of law analysis, and we call that conflict of laws in the legal world. And in the insurance context, that means typically that the center of gravity test would apply, which state has the most contacts with the claim, the policy, the parties, that's the state's law that would apply if there's not a choice of law provision. Sometimes it's where the policy is issued. Nowadays, that becomes a little bit trickier because who knows where the policy was issued. Maybe you'd say it's where the named insured has its head office or its headquarters, but it gets very complicated. As I said, it gets very easy if you have a choice of law clause in your policy. If your policy says in the event of a dispute under this policy, New York law applies, and there's a distinction between that and a forum selection clause, which says if there's a dispute, which court we're gonna go to to resolve it. We just wanted to mention the Great Lakes versus Raiders Retreat case here that some of you may be familiar with. It was decided by the US Supreme Court in February. It involved an ocean marine policy, a yacht policy that had a choice of law clause, and cutting to the chase, the court upheld that choice of law clause. The insured sought to invalidate it on the basis that there were other states that had an interest in the dispute, but the Supreme Court happily decided to enforce that choice of law clause in the policy. In that case, it applied New York law. As many of you know, very favorable law for insurers in general. All right, we wanna move rapidly to insurability of punitive damages, and why would we discuss this in the context of AI? Because what if you're an additional insured and you're brought into a lawsuit because of something the named insured did, and there are punitive damages alleged as against the named insured, and against you, because the lawyers are gonna look at any pocket they can possibly come after, with the punitive damages that might be awarded against you as an additional insured be covered under the policy? And so you'd have to undertake an analysis of whether punitive damages are insurable at all. First of all, whether they're excluded under the policy, which they very well may be, if not, are they insurable under the particular state's law? And there's a split between the states, almost even split between the states over whether punitive damages can be insured or not. Many states say they cannot be because it presents a moral hazard or it's against public policy to allow a party to insure damages for what would be grossly wrongful conduct, that's the only chance you can get punitive damages. So in the case of additional insureds, punitive damages may be covered if the basis of liability against the additional insured is vicarious liability based on something the named insured did. If you think about that, Joe, it makes sense because punitive damages are there to punish a party. But if you're being sued vicariously for acts that somebody else committed, then we have less of a problem with allowing people to insure against those punitive damages. So particularly in the AI coverage, courts are more inclined to find that punitive damages are insurable than in other circumstances when we say, no, we're not going to allow you to insure what is really meant to punish you for your own actions. Yeah, exactly. So we do wanna leave some time for, we got a couple more topics to cover. We do wanna leave some time for Q&A. We have a quick poll here. This character that you see there that you saw on the last slide, is that the California Insurance Commissioner, your favorite risk manager, IMUA Chairman Tony Falcone, or is it Snidely Whiplash? All right, most of you know, in fact, it was indeed Snidely Whiplash. And Tony's gonna be very happy to hear that he got 0%. All right, so as we move on from here, let's talk about another issue, late notice. So, late notice is a real defense for insurers. So the question really becomes, if the insurer has notice from the named insured, and does not get additional notice from the AI, can it disclaim coverage on the basis of late notice? So here, one of our themes is, it depends. And it really depends on the state. Because generally, the additional insureds have the same requirements as named insureds to provide notice. And, but however, some states have said, if you get notice that your named insured has been sued, and it's claiming, and you have that lawsuit in front of you, and you see that your additional insured, particularly if your additional insured is actually named in the policy, that is sufficient notice to you as well. I will tell you, some other states have gone the other way and said, no, there may be reasons why notice hasn't been provided. And the AI may not be claiming notice. In fact, the AI may not even know that it's entitled to AI coverage when the lawsuit. And so there are various reasons why an AI may be excused from a late notice defense where a named insured is not. So the lesson here is, when we assert a late notice defense for an AI, just realize that in some circumstances, there may be slightly different rules that we should at least think about before we fire off that denial letter or something similar to that. Okay, this leads us into limits issues. And so who pays? There's an SIR, right? And here, I'm gonna also quote the great legal and insurance scholar, Randy Meisner, who's singing the song, Take It to the Limit. So here, how do we get to the limits? What are the implications for AIs? Imagine a situation where the named insured is bankrupt and does not have money to pay the SIR. But the policy says that the AI coverage comes in only when the SIR is paid by the named insured. What happens? The named insured has no money. Well, there are a couple of states that actually have said, well, then there's no AI coverage. However, most states, however, will say that if the named insured is in bankrupt, either the AI can pay the SIR or the coverage kicks in only after damages get above the SIR level, okay? But we still have dilution issues, right? So what happens when we have multiple insureds going after the same limits? The separation of insureds clause in the policy usually does not apply here. So what happens? Policies rarely address this. So again, we go to state law to take a look at this. A minority of states say, well, insurance company, you just need to treat everybody fairly. You can't settle for one insured and leaving others out. Another rule, however, is that the insurer gets a free hand to pay claims as they come in and can exhaust the limits. And their obligation is only that they're gonna pay reasonable settlements. However, the middle ground in most states when faced with multiple claims on limited pool of funds, the insurer is obligated to act reasonably and in good faith to reduce exposure to its insureds. And the insurer's judgment, as long as it's in good faith, its decisions are not going to be questions. So what does that mean? Well, the insurer just can't rush into a settlement to extinguish its defense obligations, for example. It needs to undertake a good faith analysis and protect its insureds, all of them. It may not be able to protect all of them completely. However, it does need to, or it can make a reasonable basis and pick some claims over others. The last 10 seconds I'm gonna say is sometimes people ask us about, well, if we don't know who to pay, can't we just file an interpleader action with the court and deposit the money with the court and let other people fight about it? Yes, but I will tell you an experience. Judges hate it when insurance companies come and dump a bunch of money in their lap and then leave. If we can at all work this out, it's better for everyone if we can do it rather than leaving it to the court to decide. Yeah, we don't like making judges angry, Michael. Agreed. So we're gonna race through these last couple of issues. And this is more, again, defense counsel, more of a claims issue. I think the point we wanna make here is that where you have a named insured, you have additional insureds, you have a whole bunch of parties covered or potentially covered. When a claim arises, there are thorny issues about defense of that claim on behalf of each one of those parties. And I guess just quickly, defense counsel cannot opine on coverage and coverage counsel cannot provide defense. So you as an insurer may and often do have to hire two sets of counsel, one to give you coverage advice and one to defend your insured. And then there are all sorts of thorny issues on how you select defense counsel for your insured, what rights the insured and you have in choosing the counsel. There's something called CUMA's counsel, which is where you've issued a reservation of rights. And this is a California case that says where a reservation of rights has been issued, the insured has a right to retain separate independent counsel. So it can get very thorny. And if you've got five, seven, eight insureds or additional insureds named as defendants, you may well find yourself having to hire eight, 12 different sets of defense counsel. So something to keep in mind on the impact of number of insureds and additional insureds. And finally, just to move to a couple of issues specific to builder's risk. I think we've talked about the waiver of subrogation. There's of course an interplay with CGL coverage, which would warrant a whole seminar unto itself. And I guess the only thing I would add here is to discuss for 30 seconds, one fairly interesting Second Circuit case. That's the federal appellate court that covers New York, Connecticut. And this case involved St. Paul Fire and Marine versus Universal Builder Supply. It involved a builder's risk policy that the owner took out and was required to insure the GC and to waive subrogation. In this case, a 49-story scaffold collapsed. It was about a $20 million loss. It goes back to 2005. The builder's risk underwriter paid and then pursued the general contractor, even though the general contractor was an additional insured, saying that the loss was caused by the GC's negligence. And so they should be allowed to pursue the additional insured, notwithstanding the anti-subrogation rule. Bottom line is the Second Circuit disagreed with the GC and said, nope, what the language in the insurance policy governs here and you insurer are not entitled to recover against the additional insured GC. So we've raced through the last bit there. Apologies for that, but we did want to leave a minute or two for questions. So Eileen, if you have any questions for us, we can try to answer them very quickly. Excellent. Thank you very much, Michael and Joe. So let's try and get these three questions answered in I think about five minutes. So the first question is from Margo Williams. Are there also common AI forms for first party property policies? I can try to. Go ahead, Joe. Yeah, I mentioned at the beginning that we had a recent case where we were representing a cultural institution that have a fine art policy and they entered into a contract with an artist's foundation to have their important collection of works by this artist included in the artist's catalog resume. The foundation that was going to do that work and include the works, they required to be listed as an additional insured on the fine art policy insuring the arts. And they had a very, I'll call it severe indemnification provision, which basically said any damage, however cost, any of these works, while we're looking at them or however else, we want additional insured coverage. So I'm sure ISO has forms that work for property. Michael, you may know better that work for property policies as well as liability policies. Yeah, the majority of them are definitely for liability, but we do see them on first party. And I will also just add that usually when we see them on first party, they're usually additional named insurance. It's not the blanket version of the endorsement that we see. And we see them listed out that these other three individuals or entities are also additional insureds under the policy. Excellent. Then we have a question from Jessica Frankovich. What is the difference between a loss payee and a lender's loss payable? Joe, I'll say that I'm actually not familiar with the term lender's loss payee as being any different because typically when we see the loss payee, it is the lender for the vehicle or the property. So I'm gonna have to plead ignorance there. No, I agree. I was gonna say, I don't think there is a difference. I think it's probably just a modifier for loss payee that you may or may not use. But as a legal matter, I don't think there's any difference between the two terms. Excellent. So another question, does the ISO 0001 include other insurance clause, which technically provides that wording as long as the party is using ISO forms? And then Danielle Carrichiello, who that question is from also just added CGL. So it's a question, sorry, the ISO 0001 form? Yeah, include other insurance clause, which technically provides that wording as long as the party is using ISO. My understanding, my memory is that the 0001 policy, the policy form does not include that. And you need to use one of the other ISO endorsements in connection with it, either one of the blanket endorsements or the specified additional insurance with that, but the 001 form itself does not include an additional form, but you need to make sure it gets added by endorsement. Yeah, and if that question related to an other insurance clause, I may have that wrong, but if it did relate to that, then I would say, I don't think that ISO form includes an other insurance clause, but the policy, you know, hopefully and likely would include another insurance clause. And Danielle just said they did a qualification. Her qualification is, I meant the CGL 0001. Right, definitely the CGL, the 0001 is a CGL. So let's see, we have a couple more questions. I'll try to get one or two of them in here. I'm seeing, and this is from Lisa Cooley, I'm seeing a lot of architects and engineers wanting to be covered as AI underbuilders risk policies. Most carriers exclude them, but some are holding that, including them. What are your thoughts? Yeah, they can be included. And I mentioned there's an ISO form for including architects, engineers, surveyors, but it excludes, it doesn't cover those professionals for their own negligence. They need to have their own professional indemnity policies for their own negligence. So certainly they can be covered as AIs, but limited to claims arising from the named insured's conduct. And I'll just add the trend that I've been seeing is that their own E&O policies are now including provisions that say, this is a primary policy, unless the architect and engineer is included as an AI on a CSIP or an OSIP, some project specific package policy, in which case then we, the E&O carrier are excess. Excellent, then we'll take this as our final question. It's a second question from Lisa Cooley. Under your poll on an employee getting hurt, have AI status under the CEO policy, I thought the hurt worker could only access only the workers comp or waive workers comp and sue under the CL, GL. Are you saying that they get dual coverage under both policies? What they'll do is under the, they will get workers comp coverage from their subcontractor employer, but then they can also sue and they will sue, then the GC, because the GC does not get the benefit of the workers comp exclusion. There can only be one employer. So that injured worker can sue everybody else on the website, or excuse me, on the worksite, here's my cyber thing, website, can sue everybody else. And if they sue the GC, which they can do, the GC, however, can still go after the subcontractor's insurance as an additional insurer. Excellent. Well, we will wrap it up here. It was an excellent presentation and it seems to be a lot of complexity and you've certainly cleared a lot up. I appreciate very much your time. We just posted a link into the survey in the chat for attendees. Please take a minute to share your feedback. We're also going to send an email with the link. So if you don't do it now, do it later, but definitely look forward to your feedback. Michael and Joe, are you ready to announce the $25 Amazon e-gift card winner for most engaged, best engaged? Michael, on the theory that all of the questions were good, but Lisa asked two, I think we should probably give it to Lisa. There we go. No, I will not veto that decision, Joe. Excellent, excellent. A lot of thank yous are coming into the chat. Excellent job. Thank you again to Joe and Michael and congratulations to Lisa. Want to thank everybody for attending today. Have a great rest of the day and we do hope to see you soon. Thanks, Eileen. Thank you.

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