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Additional Insureds
As part of business agreements between companies, one company often will require that it be added to another's liability insurance policies as an additional insured. Given the frequency of these requests for additional-insured coverage, the insurance industry developed endorsements that extend additional-insured coverage to any entity for which a named policyholder has contractually obligated itself to procure coverage. These endorsements typically modify the “Who Is An Insured” provision. Many insurers use language in a “blanket” additional insured endorsement found in Commercial General Liability (“CGL”) coverage forms:
WHO IS AN INSURED is amended to include as an 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. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured.
ISO Form 20 33 10 01 (2000)
Not surprisingly, there can be disputes over the coverage these endorsements offer, particularly as a result of endorsement language referring to the underlying “contract or agreement.” Inter-company indemnification agreements in underlying contracts often require not only the insured's indemnification of the would-be additional insured, but also that the indemnifying company secure CGL coverage, sometimes written as coverage that is “not less than” a certain amount. Whether the “not less than” language adds the indemnified company to policies in excess of the minimum required coverage is a question that has divided courts (although there appear to be few reported cases on the issue). Compare, e.g., Forest Oil Corp. v. Strata Energy, Inc., 929 F.2d 1039, 1045 (5th Cir. 1991) (applying Texas law) (additional insured not covered under $1 million excess policy where underlying contract required “not less than” $100,000 per incident or $300,000 aggregate) with Valentine v. Aetna Ins. Co., 564 F.2d 292, 296 (9th Cir. 1977) (applying California law) (underlying contract's requirement of “not less than” $300,000 of insurance “only sets a floor, not a ceiling, for coverage”) and Lake Cable Partners v. Interstate Power Co., 563 N.W.2d 81, 87 (Minn. 1997) (contract requiring indemnitor to carry “not less than $250,000/$500,000″ of liability coverage did not cap indemnitee's additional insured coverage at those amounts).
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