1. Dueling Additional Insured Endorsements
Scheduled (CG 20 10)
vs.
Automatic (CG 20 33)

2. Dueling Additional Insured Endorsements
Who is an Additional Insured?
Independent third party
Not already provided insured status by coverage form
Policy includes the following as insureds:
Named insured listed on the declarations page
Those qualifying as an insured because of coverage form
Section II-Who Is An Insured
Spouse, members, partners, “executive officers”, directors, stockholders and trustees
Those qualifying as an insured because of liability classification
Members of a club or church, volunteers of a charity, condo unit owners

3. Dueling Additional Insured Endorsements
Non-Insureds
Interested third parties such as
Project owners
General contractors
Sub contractors and their sub contractors
Lenders
Material suppliers
Owners/lessors of real or personal property/equipment
Vendors/distributors of manufacturers’
…and more

4. Dueling Additional Insured Endorsements
Virtually Everyone!
“XYZ Catering, Inc. (d/b/a XYZ Creations), ABC Sports & Entertainment LLC, ABC Holdings LP, the DEF Center, their respective principals, members, officials, officers, directors, shareholders, employees, and agents, their respective parent and affiliate companies and their respective Successors or Assigns as now or hereafter may be constituted and the Centennial Authority, the City of Raleigh, North Carolina, the State of North Carolina and their departments, divisions, commissions, and boards and their respective principals, members, officials, officers, directors, shareholders, employees, and agents have been named as additionally insured’s [sic] under said policy with respect to any legal liability arising out of the Licensee’s performance hereunder.”

5. Dueling Additional Insured Endorsements
How to Achieve Additional Insured Status
Change the coverage form by endorsement
Commonly use
CG 20 10
Additional Insured- Owners, Lessees or Contractors- Scheduled Person or Organization or
CG 20 33
Additional Insured- Owners, Lessees or Contractors- Automatic Status When Required in Construction Agreement with You

6. Dueling Additional Insured Endorsements
Know The Difference
Standard forms vs. proprietary forms
ISO: “© ISO Properties, Inc., 20__” or “© Insurance Services Office, Inc., 20__”
Proprietary; not ISO: “Includes copyrighted material of Insurance Services Office, Inc. with its permission”

7. Dueling Additional Insured Endorsements
Similarities Between CG and 20 33
Ongoing operations
Separate endorsement needed for completed operations
CG 20 37
Additional Insured- Owners, Lessees or Contractors- Completed Operations
Vicarious and contributory liability
Applies to coverage A & B
Sole negligence of additional insured not covered

8. Dueling Additional Insured Endorsements
Scheduled Form (CG 20 10)
Applies to various entities
Owners, lessees, or contractors
Not limited to construction agreements, contracts
Duration of additional insured status
Policy period or upon completion of ongoing operations
Whichever occurs first
Must be endorsed to renewals
“Actively” renewed

9. Dueling Additional Insured Endorsements
Automatic Form (CG 20 33)
Applies to various entities
Owners, lessees, or contractors
But limited to construction agreements, contracts
Does not apply to those without this type of agreement such as:
Project owner/s
Upper or lower tiered subcontractors
Material suppliers
Lenders
Commonly these interests require additional insured status

10. Dueling Additional Insured Endorsements
Automatic Form (CG 20 33)- Continued
Agreement or contract must be in writing
No AI status without written contract among parties
Section II – Who Is An Insured is amended to include as an additional insured any person or organization for whom you 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.
© Insurance Service Office Inc., 2012

11. Dueling Additional Insured Endorsements
Automatic Form (CG 20 33)- Continued
Limited litigation but some courts have ruled against granting broad status without direct contract
Westfield Insurance Company v. FCL Builders
407 Ill App. 3rd 730, 948 N.E. 2d 115
Brooklyn Hospital Center v. One Beacon Insurance
5 Misc. 3d 1029(A) (N.Y. 2004)

12. Dueling Additional Insured Endorsements
Westfield Insurance Company v. FCL Builders
407 Ill App. 3rd 730, 948 N.E. 2d 115
Key players
FCL Builders, Inc. - General contractor
Suburban Ironworks, Inc.- Subcontractor to FCL
JAK Iron Works, Inc. – Subcontractor to Suburban

13. Dueling Additional Insured Endorsements
FCL/Suburban Contract:
Required Suburban to perform all structural steel and obtain liability insurance covering Suburban and FCL
“The contract mandated that any subcontractors that Suburban might further subcontract with must also maintain the same level of CGL insurance and include FCL as an insured under the policy.”
“When Suburban subcontracted the steel erection work to JAK, Suburban and JAK executed a contract that incorporated by reference a previously existing Master Subcontract Agreement between the two parties”

14. Dueling Additional Insured Endorsements
Master Agreement
Required JAK to obtain same level of coverage as required by contract between FCL and Suburban
Including adding FCL as an additional insured
JAK purchased liability coverage provided by Westfield Insurance
CG was used to provide automatic AI status

15. Dueling Additional Insured Endorsements
Third Party Over Action
JAK’s employee (Oshana) fell off of steel beam sustaining severe injuries
Oshana filed a tort action against FCL and Suburban
Breach of duty
Failure to maintain a safe workplace
Westfield rejected FCL’s request to defend and pay damages
Argued AI endorsement applies only “to entities that had an agreement in writing with JAK for them to be added to the policy as additional insureds.”
JAK had a contract with Suburban, not FCL.

16. Dueling Additional Insured Endorsements
Automatic Form (CG 20 33)- Continued
Reduces process time demands
E&O mitigation
When added to renewal policy
Eliminates underwriting
Not selective
All indemnitees are AI if required by written contract
Must rely on amending contract to avoid this

17. Dueling Additional Insured Endorsements
Automatic Form (CG 20 33)- Continued
Duration of additional insured status
Policy period or upon completion of ongoing operations
Whichever occurs first
Must be endorsed to renewals
“Passively” renewed

18. Dueling Additional Insured Endorsements
2013 ISO Changes
Both endorsements have incorporated the following changes with ISO’s countrywide filing effective April, 2013
Effective August 1 in Florida
The insurance afforded to such additional insured only applies to the extent permitted by law;
© Insurance Service Office Inc., 2012

19. Dueling Additional Insured Endorsements
2013 ISO Changes
Both endorsements have incorporated the following changes with ISO’s countrywide filing effective April, 2013
Effective August 1 in Florida
…the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured
© Insurance Service Office Inc., 2012

20. Dueling Additional Insured Endorsements
2013 ISO Changes
Both endorsements have incorporated the following changes with ISO’s countrywide filing effective April, 2013
Effective August 1 in Florida
With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance:
If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable Limits of Insurance shown in the Declarations;
whichever is less.
This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations.
© Insurance Service Office Inc., 2012

21. Dueling Additional Insured Endorsements
Scheduled (CG 20 10)
Vs.
Automatic (CG 20 33)