As outlined in some of my prior newsletters, Owner and Contractor Controlled Insurance Programs (OCIPs and CCIPs) are becoming commonplace on larger projects. If you are a contractor under one of these programs, it is imperative that you consult with a construction attorney and insurance specialist to make sure you do not have any gaps in coverage. You might assume that, should a particular loss be excluded under the OCCIP, your general liability policy will step in and provide coverage. You may be wrong! Many a CGL policy contains a wrap-up exclusion with language similar to ISO CG 21 54 01 96, which states:
This insurance does not apply to "bodily injury" or "property damage" arising out of [ongoing or completed operations] . . . as a consolidated (wrap-up) insurance program has been provided by the prime contractor/project manager or owner of the construction project in which you are involved. This exclusion applies whether or not the consolidated (wrap-up) insurance program: (1) Provides coverage identical to that provided by this Coverage Part; (2) Has limits adequate to cover all claims; or (3) Remains in effect.
Under this language, your CGL policy will not provide coverage on a project in which you are enrolled in an OCIP or CCIP even if the provided insurance is insufficient. Thus, if the wrap-up policy disclaims, your own policy will not step in to fill the insurance void.
This language is also a concern for contractors who retain subcontractors or suppliers that are not part of the OCIP or CCIP (say, for example, off-site fabricators). If those subcontractors/suppliers have a wrap-up exclusion similar to one above, their own CGL policies may disclaim coverage for you, the additional insured. The ISO form does not require the insured to actually be enrolled in the program for the exclusion to apply, only that the project has such a program.
As such, an enrolled contractor who is sued for an unenrolled supplier’s negligence, and who looks to that supplier’s insurance company for coverage as an additional insured, may be out of luck. To address this rather large loophole, ISO has issued a new endorsement which conditions the wrap up exclusion to only those instances where the insured is actually enrolled in the program. If you deal with unenrolled subcontractors or suppliers on an OCIP or CCIP project, make sure they have such an endorsement.