Power & Utility: Are Your Insurance Requirements Reaching Too Far?

February 3rd, 2014

Exceptional risk management practices and their risk managers always ensure contractual insurance requirements in contractor and vendor agreements are reviewed on a consistent basis. It is their responsibility to be certain that insurance and risk-related provisions of standard agreements and purchase orders are following best practices, and appropriate for what is available and attainable in the insurance industry. In an effort to ensure the best protection possible and close potential loopholes, contractual insurance requirements sometimes inadvertently end up too restrictive, unattainable and often unenforceable.

Purchasing or contract execution can be difficult due to contractors’ inability to comply.  A few common examples found in insurance requirements include:

  • Requiring an A.M. Best rating that is too high. An “A+” or “A” insurer financial rating and the largest size category may seem like a good idea with a goal of ensuring viable insurance assets. In reality, it can potentially reduce the pool of contractors able to comply, may risk placing them into non-compliance, or could exclude capable and acceptable contractors & vendors. A rating of “A-“ is still defined as “Excellent” by A.M. Best and is within the acceptable financial security standards of most brokers. Risk managers may want to consider any of the “A” ratings as an acceptable grade for counterparties.
  • Stipulating that the Contractual Liability provisions of contractor/vendor liability insurance policies are to provide coverage for all liability assumed in the Indemnification provision of the Agreement. By design, most indemnity provisions of a contract or agreement are intended to address insurable risks and uninsurable risks, such as breach of warranty and commercial risks. Contractual Liability provisions of liability policies are intended to only address tort liability assumed in an “insured contract” as defined by the policy. Overly broad attempts at linking insurance to indemnity provisions creates the possibility of unintentionally ruling the provision vague, unenforceable and therefore void.
  • Requiring contractors’ insurers provide Notice of Cancellation too far in advance or require  insurer to provide notice of “material changes of coverage.”   Longer notices of policy cancellation is fairly common between insurer & insured; 30-days is an acceptable and reasonable notice to certificate holders and additional insured’s on contractor policies. However, it is often challenging to get an insurer to agree to provide a cancellation notice. While it appears to be a good idea, no insurer will agree to provide notice for “material change” in the policy. It is simply too burdensome and there is no common or agreed understanding of what constitutes “material change.”

Crafting insurance requirements is often more of an art and less a science. The obvious intent is to insulate the utility from unreasonable liability arising out of the operations of contractors, vendors and service providers.  The risk manager must also juggle absolute protection with what is available and attainable in the marketplace, all while accommodating the business and commercial needs of their internal constituents.