CGL, Builders Risk Coverage and Exclusions When Construction Defects Cause Property Damage

Jeffrey Cavignac | Construction Executive

Direct damage to property under construction caused by faulty or defective work or defective materials has been a coverage issue for decades. Two specific policies, the Commercial General Liability for the contractors building the structure and the Builders Risk Policy on the project both are sources of potential coverage. 

A CGL policy protects the named insured (the contractor in this case) from third party liability arising out of the insured’s operations that results in either bodily injury or property damage. Damage to property caused by poor workmanship or defective materials would qualify as property damage. To understand how the CGL policy might respond to claims such as these, it is necessary to evaluate several exclusions in the CGL policy. 

CGL policies cover “property damage,” defined as physical injury to tangible property, including loss of use of such property, and loss of use of tangible property that has not been physically injured. 

Exclusion M provides that there is no coverage for loss of use of property that has not been physically injured due to a defect in the work. This is significant, because it means that there is no CGL coverage for defective work without physical injury to the work. 

For example, prior to completion on a construction project, inspection revealed that windows were not properly installed, making them prone to leaks. But no leaking had occurred. Removing and reinstalling the windows delayed the project by two weeks. The owner made a claim against the GC for lost revenue for the two weeks. There is no CGL coverage because the loss of use was purely due to defective work, with no physical injury (the CGL only covers liability that results in bodily injury or tangible property damage). 

There are two additional exclusions applicable to property damage in the course of construction, exclusions J.5 and J.6:

  • Exclusion J.5 excludes property damage to that particular part of property on which the insured or its contractors are working if the property damage arises out of their work. This exclusion typically applies where a mistake in performance causes damage. Resultant property damage caused by the mistake would be covered, but damage to “that particular part” that caused the loss would not be covered. For example, an electrical contractor caused a fire while working in the mechanical room that triggered the fire suppression system building-wide, causing widespread water damage. The exclusion applies only to the electrical components in the mechanical room damaged by fire. 
  • Exclusion J.6 excludes property damage to that particular part of property that must be repaired or replaced because the insured’s work was defectively performed on it. For example, a concrete subcontractor improperly mixed a concrete batch, resulting in a section of foundation that cracked, causing a shift in the structure. Structural components supported by the faulty area were damaged. The section needed to be demolished and re-poured with major repairs needed to the rest of the structure. The re-pour is excluded but the damage to the rest of the structure was not.
    Сonfidence in the future

In both cases, the CGL affords coverage for physical damage to the work caused by defects or defective work–basically the ensuing damage. In neither case would the General Liability policy cover that particular part that was either worked on or needed to be repaired or replaced due to defective work. 

Project-Specific CGL Coverage (OCIPs and CCIPs) needs to be considered in a different light. Nearly every OCIP or CCIP will include an exclusion for property damage to the insured project during the course of construction (note, that a small minority of insurers may remove this exclusion if the contractor can provide evidence of a LEG 2 or 3 endorsement). These are often referred to as “Course of Construction” or “Builder’s Risk Exclusions.” These exclusions are added with the expectation that the builder’s risk insurance should provide coverage for damage to the structure during the course of construction. 

Providing coverage under a first party property form is preferred to a third- party liability form because it should eliminate any litigation. The key is negotiating broad and favorable terms under the Builders Risk policy. A well-written Builders Risk policy will include:

  • all stakeholders as insureds;
  • comply with the contractual terms of the contract;
  • possibly include earthquake and flood;
  • include water related damage other than flood; and
  • ideally include not only resultant damage caused by defective work or materials but if available damage to that “particular part” that caused the problem. 

The U.S. builder’s risk market is dominated by manuscript forms. There are some consistencies, but each form must be carefully reviewed. With respect to coverage for property damage during the course of construction caused by defective work, domestic forms generally fall into two categories. 

The first type, which is less common, excludes all damage caused by, or arising out of faulty workmanship. This removes coverage for repairing defective work as well as for any damage to the project resulting from the defective work. These forms offer less coverage than the ISO CGL policy and should be avoided. 

The second, more common, domestic form excludes loss or damage caused by faulty work, unless the damage is caused by a covered cause of loss. These are commonly referred to as “ensuing loss exceptions.” Taking the example of the concrete subcontractor who improperly mixed the concrete that resulted in structural damage, in this case the re-pour is excluded but the damage to the rest of the structure is not because collapse is a covered peril. 

Most domestic builder’s risk policies with ensuring loss exceptions provide roughly the same scope of coverage for property damage during the course of construction as an ISO CGL policy. Neither policy provides coverage for the cost of replacing defective work, but both policies cover direct damage to the rest of the project caused by the defective work. In the case of a Builders Risk policy this ensuing loss must be caused by a covered peril. 

An underwriting syndicate in London came up with proposed endorsements that specifically address the faulty workmanship issue. Authored by the London Engineering Group, these have come to be known as LEG1, LEG2 and LEG3: 

  • LEG1 is the most restrictive. It excludes coverage for all loss or damage “due to defects of material workmanship, design plan or specification,” whether damage to other property has occurred or not. LEG1 is the basic equivalent of the first category of US market forms that exclude all damage caused by defective work, without the “ensuing loss exception.” 
  • LEG2 excludes coverage for all loss or damage “due to defects of material workmanship, design plan or specification,” but maintains coverage for insured property damaged by the defect, except for the cost that would have been incurred if the replacement or rectification had been done before the damage. LEG2 is roughly equivalent to the U.S. market form with the “ensuing loss exception.” It covers resulting property damage to the project, but not damage to the part causing the problem. This makes LEG2 also roughly equivalent to an ISO CGL policy in terms of the scope of coverage for property damage during the course of construction. 
  • LEG3 provides the broadest coverage. This endorsement extends coverage to not only the ensuing damage, but damage to that “particular part” that caused the damage. Coverage does not extend to costs “incurred to improve the original material workmanship, design plan or specification.” As long as there is resulting property damage, the LEG3 form covers all repair costs, including the cost of repairing or replacing the defective work. 

LEG2 and LEG3 each contain an additional provision stating that “it is understood and agreed” that insured property shall not be considered damaged “notes solely by virtue of the existence of any defect of material workmanship, etc…”. In other words, there must be a covered cause of loss to trigger coverage. In simple terms, LEG3 coverage excludes the cost to repair a defect where there is no resulting damage, and the cost of improvements over and above the original work.

Here, in the example of the concrete subcontractor who improperly mixed the concrete that resulted in structural damage, the re-pour is covered along with damage to the rest of the structure. If, as an added safety precaution, the foundation was reinforced with metal rods, the cost of adding the metal rods would not be covered. The LEG3 form provides broader coverage for damage caused by defective work than the ISO CGL policy. The ISO CGL policy does not cover the cost of repairing or replacing defective work whereas LEG3 does. It should also be pointed out that LEG3 Endorsements are usually not available on smaller projects or frame construction.

Insuring construction projects are complex. There are numerous stakeholders as well as significant exposures, General Liability, property under construction, pollution, workers compensation, professional liability, etc. 

 Here are a few things to keep in mind: 

  • It is always better to have a loss covered by a property policy than a liability policy to avoid the litigation costs, ill will and time litigation can take. 
  • Negotiate the most favorable Builders Risk terms available. All Builders Risk policies are different and all are negotiable. 
  • Understand how construction defects caused by faulty workmanship or defective products will be treated. Whenever possible a LEG3 type endorsement should be sought. 
  • Communicate the coverage provided, or lack thereof to the named insureds. Just because the broker knows it, doesn’t mean the insured knows it. 

There is no substitute for taking the time to understand the risks of a project and negotiating favorable terms for all stakeholders. A well written and coordinated insurance program is a critical piece to a successful project.

Are COVID-19 Claims Covered by Builders Risk Insurance Policies?

Cheryl L. Kozdrey | Saxe Doernberger & Vita and Jason M. Adams | Gibbs Giden Locher Turner Senet & Wittbrodt

If you are an attorney, insurance broker, or other professional representing developers and contractors, then your clients have likely reached out with concerns about losses related to COVID-19. One common question is whether there is potential coverage under builders risk insurance policies.

The short answer is: It depends. As with most questions pertaining to insurance coverage, the answers depend on the specific policy language and underlying facts required to trigger coverage. Builders risk policies are even more fact specific due to the lack of uniformity of base policy forms and endorsements between insurance carriers.

The first step in any analysis is to gather facts and carefully document any impending and potential damages or delays. The facts are crucial because the coverage analysis may vary depending on the specific reason the project was shut down. For example, the analysis would be different if the project was shut down as a result of an express government order, such as those in Northern California and Washington, versus the project shutting down as a result of workers testing positive for COVID-19. Properly analyzing builders risk coverage involves a granular account of the facts and damages, and can require a great deal of hair splitting with respect to specific policy language.

Regardless of the strength of the insured’s facts and damages, or the breadth of its policy language, the policyholder still likely faces an uphill battle in finding coverage for COVID-19 related claims. The unfortunate reality of most builders risk policies is that they are property policies that require some evidence of physical loss or damage to trigger coverage. Whether or not COVID-19 claims constitute property damage will be the subject of great debate and litigation over the coming months and years. The outcome will likely depend on how the insured’s jurisdiction ultimately rules on the litany of COVID-19 cases that have already been filed – specifically, how broadly each court interprets the meaning of “physical loss or damage.”

Although these key issues have yet to be clearly defined by the courts, some policies are better than others and there are specific variables that could affect the likelihood of coverage. For example, some of the more policyholder-friendly insurance programs may contain coverage extensions for delay in completion, business interruption, loss of rental income, or civil authority that may not be tied to the property damage requirement, and which would tend to support coverage for COVID-19 claims.

Even if the insured crosses the initial threshold and can demonstrate a covered claim, the following common endorsements and exclusions may require additional analysis depending on the facts.

  • Virus or Pandemic Exclusions: Virus or pandemic exclusions are not as common on builders risk policies as they may be on other forms of coverage. However, they do exist and, if present, result in a significant barrier to coverage. As with the policy itself, every endorsement is different and should be analyzed in terms of the express language contained in the endorsement and the facts.
  • Abandonment or Cessation of Work: Most builders risk policies include provisions that preclude coverage in the event of the abandonment of the project or a lengthy cessation of work. As a result, the insured should take steps to articulate to the carrier that the project has not been abandoned, and that there exists an intent to return as soon as possible. The insured should also maintain a record of ongoing project oversight and protection efforts taken during the period when construction operations are suspended.
  • Security and Safety Requirements: Many builders risk policies contain provisions requiring the insured to maintain protective safeguards and security protocols throughout the pendency of the project. Safety fencing, lighting and security guards are common examples. The policy should be analyzed to ensure that the policyholder can meet any such requirements during a COVID-19 related shutdown. For example, can the insured continue to staff a security guard? If not, arrangements will likely need to be made with the carrier depending on the language of the policy.
  • Insurable Limits: Builders risk policies are typically underwritten based upon the total completed value of the structure, including materials and labor. The insured will need to analyze the policy to consider whether increased material or labor costs as a result of COVID-19 will alter the terms of coverage, trigger any escalation clauses, or result in an increase in premium due. If increased cost projections become apparent, the insured should report these changes to the carrier immediately.
  • Extensions of Coverage: The insurance industry was facing a hard market even before the COVID-19 pandemic, which resulted in higher premiums and limited coverage options. The COVID-19 pandemic has only exacerbated these issues and it may be difficult to obtain coverage extensions on projects that have been shut down. The insured should work with its risk management team (risk manager, insurance broker and lawyer) to engage the carriers to negotiate any necessary coverage extensions resulting from COVID-19 related project delays.

To summarize, builders risk coverage for COVID-19 claims is far from certain, but not impossible. Insureds should provide notice of a claim to all potentially applicable carriers in order to preserve their rights. The insured should also report increased construction cost and articulate its intent to return to the project to preserve their escalation clause and avoid arguments that they have abandoned the project. The insured should continue to document its claims and damages, and be ready to substantiate its claims and push back on any coverage denial. Throughout the entirety of this process, the insured should work with its risk management team to get out in front of any extensions it may need to complete the project. In a climate where insurance carriers are receiving an insurmountable number of claims, the insured should be prepared to fight for coverage and not simply throw up its hands in the face of a denial. Given the intense social, legislative and executive pressure to cover COVID-19 claims, there may be a tendency for the courts to find coverage in gray areas, particularly if the insured was fortunate enough to have purchased one of the broader coverage forms referenced above.

Builder’s Risk Coverage – Construction Defects

Brian Hearst | Construction Executive | June 15, 2019

COVERAGE FOR LOSS ENSUING FROM FAULTY WORKMANSHIP

Part I tackled the standard builder’s risk exclusion that applies to losses arising from faulty materials or workmanship. Traditionally, carriers do not have an appetite for covering a contractor’s failure to perform their work properly. There is one exception, which is coverage is available for ensuing loss – or the resulting damage to other property from faulty workmanship. 

If the excluded cause of loss (i.e., faulty workmanship) causes resultant damage, the builder’s risk policy will cover the damages to the extent the peril of fire is covered. The ensuing loss exception limits the faulty work exclusion to costs directly related to repairing or replacing the faulty work. 

For example, suppose faulty wiring work leads to a fire which damages part of a structure under construction. The faulty workmanship exclusion would apply to the actual faulty wiring work, but if fire is a covered peril under the policy (this is nearly always the case), the policy would respond to the structure’s fire damage.

Coverage for ensuing loss is either stated as an exception to the faulty workmanship exclusion or by limiting the faulty workmanship exclusion language. Working with a broker to assure a properly written ensuing loss provision is critical.

LEG – LONDON ENGINEERING GROUP EXCLUSIONS

The London Engineering Group serves as a consulting body to various insurance and reinsurance companies, as well as various Lloyds syndicates providing, among others, construction insurance. LEG published three variations of defects exclusions, known as LEG 1, LEG 2 and LEG3, with increasing levels of coverage for defective construction. While initially available through London markets, these endorsements, or similar “cost of making good” endorsements are increasingly available from domestic insurers. 

  • LEG 1. Broad Exclusion serves as a baseline endorsement broadly excluding “loss or damage due to defects of material workmanship, design, plan or specification.” This can also serve to exclude ensuing loss, as mentioned above. 
  • LEG 2. Compromise Exclusion provides coverage for costs to remedy ensuing loss to covered property and costs to remedy damage to property supported by defective property. LEG 2 excludes the costs incurred to remedy a defect immediately before the damage occurred. 
  • LEG 3. Narrow Exclusion is most broad by only limiting the exclusion to costs incurred to improve original materials, workmanship, design, plan or specification. Thus, in addition to the cover provided under LEG 2, LEG 3 will respond to the costs to remedy damage to defective property, costs to put right defective “part, portion or item,” and loss, damage or expenses incurred to access defective parts (rip and tear). 

Under both LEG 2 and LEG 3, an ensuing loss exception is no longer necessary. The policy states that the entire loss will be covered less a specified amount. The loss payable is the total amount of the covered loss minus what it would have cost to replace the faulty work prior to the loss (LEG 2) or the cost to improve the original materials, workmanship or design (LEG 3). 

Any claim under LEG 2 or LEG 3 will only respond if the project suffers damage or destruction. Rectification of a known defect, part or system that has not manifested damage is not an insured loss.

LEG – LOSS EXAMPLE

An HVAC unit placed between floors of a partially completed five story building is being commissioned. A fire occurs and causes $3 million in damage to the HVAC unit and parts of the building surrounding the unit. It is determined insufficient electrical wires were installed. To access and replace the fire-damaged HVAC unit, $400,000 of undamaged property will need to be ripped out to replace the damaged unit. Engineers determine the wiring requires an upgrade at an additional cost of $65,000. A $75,000 policy deductible will apply. LEG response:

  • LEG 1 – Loss is not covered;
  • LEG 2 – Pays $3,000,000 damage to covered property less $65,000 the before-loss cost to replace the inadequate wiring less $75,000 deductible. Final Claim Value is: $2,860,000; or
  • LEG 3 – Pays $3,000,000 damage to covered property plus $400,000 rip and tear costs less $75,000 deductible. Final Claim Value is: $3,325,000.

The language in the builder’s risk policy matters. If a construction loss occurs, it can determine the company’s financial future. An insurance broker can help review, construct and understand policies, ensuring critical loss is a covered matter. 

Builder’s Risk Coverage—Language Matters

Brian Hearst | Construction Executive | June 3, 2019

FAULTY DESIGN, MATERIALS AND WORKMANSHIP

Universally, nearly all builder’s risk policies include exclusions for faulty design, materials and workmanship. This exclusion is often tempered by an ensuing loss exception, which essentially states that if the loss is caused by an otherwise insured peril, the resultant loss will be covered.  


For example, a contractor fails to incorporate the specified amount of steel rebar in vertical structure members of a new building. This issue is discovered 75% of the way through construction. If no loss occurs, a typical builder’s risk policy would not respond to the need for rework. However, if the building collapses, and collapse is a covered peril under builder’s risk, while damage to the faulty columns would not be covered, resultant damage should be covered. 

PARTIAL OCCUPANCY EXCLUSIONS

Whether performing renovations or new construction, there is pressure from owners for buildings to become occupied before construction is complete. Owners want to start generating revenue from areas already completed, while construction continues in adjacent areas concurrently.  Most builders risk policies either exclude coverage for otherwise covered loss arising from early occupancy or are quite restrictive with what must be reported to be covered.

For example, a contractor furnishes builder’s risk for a mixed-use apartment project. The policy does not automatically allow early occupancy. The first-floor retail space is completed four months ahead of the apartments above and a restaurant occupied the space. A fire in the restaurant causes extensive damage to the entire structure. The policy requires underwriters to be notified of early occupancy by the insured and approve of any early occupancy. Because this dos not occur, builder’s risk coverage may be excluded for this loss.

CONCURRENT CAUSATION CLAUSES

In general, concurrent causation clauses under builder’s risk policies exclude coverage for loss or damage caused directly or indirectly by any number of individually listed perils. This exclusion is regardless of any other cause or event contributing concurrently or in sequence to the loss. 

As an example, a new construction hotel and casino along a coastline is caught in a hurricane and sustains $20 million in damage as a result. It’s determined $15 million of the damage is caused by wind and $3 million is caused by flood. The responding builder’s risk policy provides coverage for the peril of a named windstorm but does not cover flood. If certain concurrent causation language remains unamended in the policy, the entire loss may not be covered. The language in the builder’s risk policy matters. If a course of construction loss occurs, it can determine the financial future of a construction company. The insurance broker can help a contractor review, construct and understand policies, ensuring critical loss is a covered matter.