The Conflict Between Choice-of-Law Provisions in Insurance Policies and a State’s Fundamental Public Policy

Matthew Lewis | Property Casualty Focus | October 18, 2019

Many contracts include a choice-of-law provision in which the parties agree to use a particular jurisdiction’s set of laws to govern the contract. These provisions promote predictability. No matter where a dispute may arise under the contract, the contract will always be interpreted under the laws of the chosen jurisdiction. This practice of including choice-of-law provisions extends to policies of insurance.

However, these choice-of-law provisions are not always enforceable. Section 187 of the Restatement (Second) of Conflict of Laws indicates that the parties’ choice-of-law provision would not govern if it conflicts with a state’s fundamental public policy, and if that state has a materially greater interest in the determination of the issue than the contractually chosen state.

Recently, the Supreme Court of California addressed this issue as it pertained to a choice-of-law provision in an insurance policy in Pitzer College v. Indian Harbor Insurance Co., 8 Cal. 5th 93 (Cal. 2019). In this matter, the insurer, Indian Harbor, denied coverage to Pitzer College following an environmental remediation of land conducted by the school.

The insurance policy at issue contained a choice-of-law provision that indicated New York law would govern the policy. Additionally, the policy included a notice provision requiring Pitzer College to provide notice to Indian Harbor of any pollution condition it discovered, which resulted in a loss or remediation expense as a condition precedent to coverage. Finally, the policy included a consent provision requiring that no “costs, charges, or expenses shall be incurred, nor payments made … without [Indian Harbor’s] written consent.” However, the consent provision did provide an exception that Pitzer College could incur costs on an emergency basis, so long as it notified Indian Harbor “immediately thereafter.”

During the policy period, Pitzer College discovered lead contamination in the soil on land where a new dormitory was being constructed. Approximately two months after discovery of the pollution, Pitzer College remediated the land itself, at a cost of about $2 million. However, Pitzer College did not notify Indian Harbor of the remediation until six months after the discovery of the pollution. Ultimately, Indian Harbor denied coverage for the loss on the basis that Pitzer College did not timely notify it of the loss, or the costs incurred, which was in breach of both the notice and consent provisions of the policy.

Pitzer College brought suit in federal court against Indian Harbor for alleged breach of contract. Specifically, Pitzer College alleged that under California law, an insurer can only deny coverage for an insured’s failure to timely notify of a loss if the insurer can show that it was substantially prejudiced by the delayed notice.

The district court disagreed with Pitzer College’s argument that Indian Harbor had the burden of showing that it was substantially prejudiced by the delayed notice. The court held that because New York, pursuant to the choice-of-law provision in the policy, had a strict no-prejudice law for policies of insurance delivered outside New York, Indian Harbor was not required to show prejudice in its denial of coverage to Pitzer College due to lack of timely notice. As such, the court granted summary judgment in Indian Harbor’s favor. Pitzer College appealed to the Ninth Circuit Court of Appeals.

On appeal, the Ninth Circuit certified two questions to the Supreme Court of California: (1) whether California’s notice-prejudice rule was a “fundamental public policy” for choice-of-law analysis; and (2) whether the notice-prejudice rule applied to the consent provision of the insurance policy.

In determining whether California’s notice-prejudice rule was a fundamental public policy, the Supreme Court of California noted that a rule is a fundamental public policy when it: (1) cannot be contractually waived; (2) protects against otherwise inequitable results; and (3) promotes public interest.

In this matter, the court found that all three elements existed to establish the notice-prejudice rule as a fundamental public policy of the state. For the first prong, the court noted that the notice-prejudice rule could not be waived, because it restricted freedom of contract and prevented the enforcement of a contractual term (technical forfeiture).

As for the second prong of its analysis, the court noted that insurance contracts were “inherently unbalanced” and “adhesive” and that the notice-prejudice rule protects an insured against inequitable results based on an insurer’s superior bargaining power. What is particularly interesting about this part of the court’s analysis is that it did not draw any distinction between the type of policy in this matter (between a large, sophisticated entity such as the Claremont University Consortium and Indian Harbor) and a more common type of insurance policy (between an individual without any bargaining power and a carrier).

As to the third prong, the court found that the notice-prejudice rule promoted objectives that are in the general public’s interest because the rule protected the public from bearing the costs of harm that an insurance policy purports to cover. In other words, by requiring an insurer to show that it incurred substantial prejudice because of untimely notice, the rule lessens the likelihood that a loss covered by the policy would be denied by the insurer based on a technicality. Essentially, the notice-prejudice rule helps to prevent an insurer from “reap[ing] the benefits flowing from the forfeiture” of an insurance policy with a strict notice provision and lessens the risk of placing the burden of the costs of the loss on the public.

As to the second question certified by the Ninth Circuit to the Supreme Court of California, the court held that the consent provision, as it regarded first-party claims, had much of the same effect as the notice provision. Both provisions had the underlying purpose to “facilitate the insurer’s primary duties under the contact and speak to minimizing prejudice in performing those duties.” Because both provisions were inherently the same to the court, the rationale of the notice-prejudice rule would also govern the consent provision. As such, Indian Harbor would have to show that Pitzer College’s failure to obtain consent, as prescribed under the policy, would not be grounds for denying coverage unless it could show that the failure to obtain consent substantially prejudiced Indian Harbor.

It is important to note that the court drew a distinction between first-party claims and third-party claims as it regards consent provisions. Because third-party claims involve liability coverage and the insurer assumes the defense of the matter once defense is tendered by the insured, the rationale behind the notice-prejudice rule would not apply to consent provisions in third-party claims.

By holding that the choice-of-law provision in the Indian Harbor policy would not be enforceable as it relates to the notice and consent provisions, the Supreme Court of California essentially ruled that California courts would not enforce any notice provisions in insurance policies unless the insurer can show that it suffered substantial prejudice due to the lack of timely notice by the insured.

This holding introduces considerable uncertainty in choice-of-law analysis, which is already fraught with complications about where contracts are formed, the location of the risks insured, etc. Sometimes, the difference between certain jurisdictions’ laws are dispositive in insurance disputes. Moreover, not all states rely on the Restatement approach for conflict of laws, and thus the question of “conflict” with that state’s “fundamental polices” may not even come into play. However, if other states adopt the approach in Pitzer College, it may ultimately render choice-of-law provisions moot.

Additional Insurance Coverage: Fundamentals and Misconceptions

R. Thomas Dunn | Pierce Atwood | September 26, 2019

Additional insured (“AI”) requirements for commercial general liability (CGL) policies are very common in construction contracts. An Owner routinely requires its general contractor (“GC”) to provide AI coverage for itself, its affiliates, and sometimes a handful of other entities (lender, architect, etc.). In turn, the GC mandates its subcontractors to provide AI coverage for the GC, the Owner, and a cast of other characters. While frequently used, for good reason, this risk transfer tool is often misunderstood. In this post, I will explain the purpose of AI coverage, identify what it does and does not cover, and provide answers to a few misconceptions about additional insured coverage.

The Purpose of Additional Insured Coverage

The design of AI coverage is to trigger the insurance procured by lower-tier contractors. The Owner, GC, and subcontractors all have CGL insurance, but the goal of additional insured coverage is to make sure that someone else’s insurer will be on the hook to provide defense and indemnity should a covered claim arise. The goal is to insulate the insurers of upper tier entities (as well as the insured Owners/GCs) from defending or paying claims because the lower-tier’s insurer will provide such defense and indemnity. While the Owner/GC may have coverage already, they will not be impacted by claimed losses in their insurance program if such loses are covered by another carrier.

Additional Insurance coverage provides an additional form of security for contractual indemnity provisions. In most construction contracts, a lower-tier contractor promises the upper-tier entity that it will pay for injury to person/property caused by the lower-tier contractor’s negligence. Indemnity means pay money. The promise to indemnify another is only as good as what backs up that promise. While a lower-tier’s CGL policy should provide coverage for assumed contractual liability, the advantage of AI coverage is that the upper-tier can go directly to the lower-tier’s insurer for coverage. A lawsuit against the lower-tier contractor is not required to trigger the coverage. Contractual indemnity and AI coverage are separate and distinct risk transfer mechanisms, but they work in tandem with each other. A reasonable level of redundancy is a positive attribute when it comes to planning to mitigate and transfer risk.

What Does Additional Insurance Cover?

AI coverage will not cover an Owner/GC if there is no relationship to the subcontractor’s work. If there is no such “nexus” between the subcontractor’s work and the claimed loss, then the Owner/GC cannot utilize the additional insured coverage. Clearly, there is no liability where the additional insured is 100% responsible for the loss. The “nexus” required between the loss and the subcontractor’s work varies based upon the language used in the additional insured endorsement and decisional law in the relevant jurisdiction. For example, earlier this year the Rhode Island Supreme Court held that a subcontractor’s insurer who had issued AI coverage for the general contractor did not owe additional insured coverage resulting from an injury to subcontractor’s employee because employee did not allege fault or negligence of the subcontractor. Bacon Constr. Co. v. Arbella Prot. Ins. Co. In Bacon, the Court interpreted the AI endorsement discussed in the next paragraph (ISO CG 20 3) and concluded that some negligence of the subcontractor needed to be alleged. Where the language of the AI endorsement is broader, such as coverage to an additional insured for “liability arising out of” the operations, the outcome is often different as seen in the 11th Circuit case of Zurich Am. Ins. Co. v. Southern-Owners Ins. Co. also decided earlier this year.

AI coverage for CGL policies are mostly written on standard forms written by the Insurance Services Office, Inc. (“ISO”). In many standard contracts, you will see a specific ISO form number identified. A commonly used form is ISO CG 20 33 07 04. In this form number, the last four digits “07 04” are the month (07) and year (04) the form was adopted by ISO. This form amends the CGL policy defining who is an Insured “to include as an additional insured any person or organization for whom you [the Named Insured] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.” ISO 20 33 07 04 (emphasis added). The additional insured is then covered for “‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by [1] [the Named Insured]’s acts or omissions; or [2] The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured.” ISO 20 33 07 04 (emphasis added). A few issues to be aware of with this standard AI form:

  • The Privity of Contract Problem. This form is useful for general contractors who are, by definition, going to be performing operations and have a contract with the Owner. You can rely upon this “blanket endorsement” and be comfortable that you have provided AI coverage to your Owner customer. But, what about subcontractors who are asked to name the Owner as an additional insured? They are not in privity of contract with the Owner and thus AI status from the subcontractor’s CGL policy may not be conferred as intended to the Owner. The result is that the subcontractor is in breach of its subcontract for failing to provide the specified AI coverage and the GC’s insurer will be stuck with coverage of the claim. To get around this issue, it is advisable to request a “scheduled endorsement” where the names of the entities who are intended to be conferred AI status are listed. An example of a scheduled endorsement is ISO form CG 20 37 07 04.
  • Scope of Coverage. The language “caused, in whole or in part” leads to some insurers to deny coverage or issue reservation of rights letters. This is because there may not be a sufficient showing that the Named Insured “caused” the alleged loss in whole or in part. This was the holding of the Rhode Island Supreme Court discussed previously in Bacon. Other AI endorsements, such as the pre-2004 editions of the CG 20 10 ISO AI endorsements, provide broader language but they may be difficult to obtain from insurers.
  • Completed Operations. The 20 33 form does not provide for completed operations. Many standard insurance requirements require a specific period of years for completed operations coverage. If you rely upon this form alone, you will not be providing the completed operations insurance. ISO form CG 20 37 07 04 provides for completed operations coverage.

In the AIA’s 2017 updates to its Owner/Contractor documents, the AIA specifically identifies ISO forms CG 20 10 07 04 and CG 20 37 07 04 as the minimum level of additional insured coverage to the extent commercially available. Updated forms exist of the CG 20 37 series, but they provide more limited coverage.

Common Misconceptions about AI Coverage

  1. I am covered by my subcontractor’s insurance as an additional insured; I do not need my own policy. Yes you do. AI coverage by a subcontractor is not a replacement of a GC’s insurance obligations. For example, a subcontractor’s AI insurance only applies where the subcontractor’s conduct is related to the loss.
  2. All I need to do in my contract is attach a sample certificate of insurance identifying my company and the owner as additional insureds. While this method may work in some circumstances, a few additional steps will better protect your company. First, insert a clear promise by your contracting party to purchase and maintain specific types of insurance. The promise to procure insurance is important. Failure to have such language could result in finding that there were no insurance procurement obligations. Second, be specific in the entities you want to be named as the additional insured. This avoids any confusion and ambiguity. Third, make sure the AI coverage is “primary and non-contributory” to other insurance. This accomplishes the objective of having the lower-tier insurance companies respond to the claims without receiving contribution from your insurer.
  3. The AI coverage is automatic on my subcontractor’s “follow form” excess policies. Unlike AI endorsements that are commonly ISO forms, excess policies are manuscript policies – meaning each insurer prepares its own form. While many of these polices assert they follow the form of the underlying CGL policy, the scope of coverage for excess polices varies based upon the manuscript policies. Be sure to include the same requirements for additional insured status for your excess insurance specifications.
  4. All I need to do is obtain the certificate of service from my subcontractor to ensure AI status. The certificate of insurance forms are useful documents, but if you want to ensure that the proper AI status is obtained, you need to obtain the endorsement. While this is an additional step in the procurement process I am sure you would like to avoid, it is the only way you can verify the coverage. The certificate of service expressly states you cannot rely upon it for the insurance provided. As described in the Bacon and Zurich cases above, there are substantial differences in the outcome by using different ISO AI forms. Obtaining the endorsement provides necessary certainty on the insurance you have procured or been provided. The extra step is worth the effort.
  5. As an Additional Insured, I have the same rights as my subcontractor’ under its CGL policy. There is a difference in the CGL insurance policy between the definitions of the “Named Insured” – your subcontractor – and the “Other Insured” – the additional insured. The rights under the CGL insurance policy are different for the Named Insured versus the Other Insured. For example, as noted above, additional insureds are only covered where there is a nexus between the claim and the conduct of the named insured.
  6. This sounds great for Owners. I want to make sure everyone, including my design professionals provide additional insured coverage for me. Sorry, but additional insured coverage is not available for professional liability insurance policies.


AI coverage is an important tool in your risk management toolbox. It is also a valuable service you are providing your customer and there is not much cost associated with it. ISO updates their forms on a regular basis so it is important to work with your insurance broker or other insurance adviser to ensure you are receiving the coverage promised to you and that you are providing the coverage you promised to your customer.

Consequential Damages can be Recovered Against Insurer in Breach of Contract

David Adelstein | Florida Construction Legal Updates | June 1, 2019

In a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.”  Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted).   Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract.

In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent.  However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties.

This ruling is valuable to insureds because Citizens Property Insurance, a creature of statute, cannot be sued for first-party bad faith.  However, the Fifth District found that the consequential damages in the form of lost rental income did not require the insured to prove the insurer acted in bad faith, but merely, breached the terms of the policy.   This holding can be extended to other breach of contract actions against an insurer when the insured suffered and can prove consequential-type damages caused by the breach. 

It’s Not What You Thought You Signed That Counts: Chancery Court Rejects Plaintiffs’ Claims For Breach of Contract Plaintiffs Thought They Had Made

Remsen Kinne and Alidad Vakili | K&L Gates | July 1, 2019

In Concerned Citizens of the Estates of Fairway Village, et al, v. Fairway Cap, LLC and Fairway Village Construction Inc., C.A. No. 2017-0924-JRS (Del. Ch. March 6, 2019), homeowners resident in Fairway Village, a residential planned community (“Plaintiffs”) claimed that plans and actions taken by one of the community’s developers, defendant Fairway Cap, LLC (“Fairway Cap”), to construct, own and lease townhouse condominiums in the community for use as rental apartments breached contractual provisions of Fairway Village’s governing documents. In its verdict for defendants, the Court of Chancery (the “Court”) rejected those claims, and concluded that Plaintiffs failed to prove a breach of contract and denied Plaintiffs’ motion for summary judgment.

In proceedings prior to trial, the Court granted Plaintiff’s motion for preliminary injunction and enjoined defendants from renting townhouses in the community pending the outcome of the trial. Subsequently, the Court dismissed Plaintiffs’ breach of fiduciary duty and fraud claims, leaving only the breach of contract cause of action for trial.

In its findings the Court indicated that Fairway Cap initially wanted to acquire and develop only certain lots within the Community. The prior owner of the undeveloped lots in the Community defaulted on its loan presenting Fairway Cap with the opportunity to purchase the defaulted loan. By purchasing the defaulted loan, Fairway Cap was able to acquire all the remaining undeveloped lots within the Community. After several years of sluggish sales, Fairway Cap re-evaluated its objectives and decided the best and highest use of the remaining lots would be to build townhouses for use as rental apartments, maintain ownership, and rent them to long-term tenants. Testimony at trial indicated this would result in Fairway Cap owning and leasing more than 76% of the community’s condominium units, in turn potentially increasing financing costs for homeowners purchasing and refinancing units and reducing Fairway Village’s property values.

The decision’s analysis first addressed Plaintiffs’ argument that Fairway Village’s governing documents contain restrictive covenants prohibiting the developer’s plans. Plaintiffs bore the burden of proof, the Court held, to identify contractual restrictions on the use of Fairway Cap’s property and how those restrictions had been breached. The Court noted that in real property-related contract breach claims such as Plaintiffs’, the law facilitates free use of land not otherwise validly restricted.

The Court ruled that Plaintiffs failed to meet their burden of proof because they did not identify any contractual commitment that restricted Fairway Cap from owning and renting units in the Community. The Court found that the governing documents clearly provided that a builder or developer can own units to sell or to rent and that “express references to, or implicit recognition of, an owner’s right to rent its condominium unit for residential purposes through the governing documents are too numerous to cite.” A recital in a peripheral declaration document stating that the developer “will offer Condominium Units for sale to the public”, the Court determined, was not incorporated in the governing documents and at best reflects only a then-present intention of the developer, “not … a promise to refrain from all other permitted uses in perpetuity.”

Next, the Court addressed Plaintiffs’ request for a permanent injunction (i) to prevent the developer from constructing townhouses for use as rental units, and (ii) to require the developer to construct townhouses for sale that conform with those already constructed. The Court held that by failing to prove a breach of contract, Plaintiffs also had not proven any predicate wrong and corresponding right of action as required for the Court to grant an equitable remedy such as a permanent injunction. That remedy may not be invoked, the Court indicated, to prevent the developer from lawfully exercising its contractual rights or from putting its property to a lawful use.

The Court rejected Plaintiffs’ contention that the Court should view the Fairway Village’s governing documents “in a macro sense” through Plaintiffs’ eyes. Instead, the Court stated that Delaware law requires adherence to the objective theory of contracts in interpreting the governing documents, “by ‘standing in the shoes of an objectively reasonable third-party observer’ who is bound to give ordinary meaning to the words used by the parties and to enforce the agreements as written when that meaning can be readily discerned.” The Court did not accept Plaintiffs’ argument that Fairway Cap’s rental plan should be enjoined because it fundamentally alters the community and its governance scheme, leaving the developer in control of Fairway Village’s condominium council, even though homeowners contemplated that control would be turned over to them, in support of which Plaintiffs cited references in the governing documents requiring the developer’s consent to certain amendments. The Court went on to observe that no restriction in the governing documents or in law prohibited Fairway Cap’s ownership of multiple units and resulting voting control. The Court noted that Plaintiffs’ “vague sense” of being treated unfairly is not sufficient to justify granting equitable relief.

Notably, in reaching its verdict for the defendants, the Court pointed out that the “Plaintiffs cannot prevail on their breach of contract claim by proving Defendants breached the contract Plaintiffs thought they had made.”

Design Professional Asserting Copyright Infringement and Contributory Copyright Infringement

David Adelstein | Florida Construction Legal Updates | April 7, 2019

Standard form construction contracts between an owner and design professional will address copyright protection, as well as other contractual protections, associated with a design professional’s “instruments of service.”   An owner negotiating an agreement with a design professional should consider alternative language that broadens the scope of the contractual license given to it with respect to the use of the design.  Regardless, a design professional’s copyright infringement claim is still a challenging claim to ultimately prevail on.   While a design professional may likely survive the motion to dismiss stage in a copyright infringement claim, whether it survives the summary judgment stage is another, more challenging, story.

To state a claim for copyright infringement a plaintiff [design professional] must assert [and prove the following two prongs]: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Robert Swedroe Architect Planners, A.I.A., P.A. v. J. Milton & Associates, Inc., 2019 WL 1059836, *3 (S.D.Fla. 2019) quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).  

In the first prong, the design professional must establish it complied with statutory formalities to own a valid copyright. Id.

In the second prong, the design professional must establish that the defendant copied constituent elements that are original.  Id.

There is also a claim known as contributory copyright infringement.  

Contributory copyright infringement occurs where a party with knowledge of infringing activity materially contributes to the infringing conduct of another.” Robert Swedroe, 2019 WL at *4.   Actual knowledge is not required – it just needs to be shown the defendant had reason to know (i.e.,knew or should have known) of the copyright infringement.  Id. (citations omitted). 

For example, in Robert Swedroe, an architectural firm was hired by a developer to prepare plans and specifications in connection with a residential building project.  The contract was based off an AIA B141 agreement between an owner and architect. The architect was to initially prepare plans to obtain approval of the governing Planning Board and, upon approval, prepare the permit plans for the residential building.    Once the Planning Board approved the project, the developer sold the property to another developer. The new developer, however, hired another architectural firm–that was provided and had access to plans from the initial architect–with the intent on moving forward with the design and construction of the residential building.

The original architect submitted its technical drawings and architectural work to the United States Copyright Office and obtained a Certificate of Registration.   (Notably, this satisfied the first prong on the copyright infringement claim as the original architect satisfied statutory formalities).  The original architect sued the new developer and new architect for copyright infringement asserting the new architect copied original elements of its design for the residential building project.  The original architect also sued the new developer for contributory copyright infringement.  The new architect and new developer moved to dismiss the copyright infringement claims. Although the trial court denied the motion to dismiss, the original architect will still need to support the burden of its copyright infringement claims.  For more information on the difficulties proving a design professional’s copyright infringement claim, review this article.