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New York's Additional Insured Form Endorsement
Transactional attorneys involved in negotiating commercial leases, construction contracts, or any contract in which one party requires the other party to provide insurance against personal injury or property damage should have a good understanding of the new “additional insured” form endorsement to a Commercial General Liability (CGL) insurance policy. This endorsement has recently undergone a significant change, and this change may result in an unintended and adverse effect on the insurance coverage available to a party named as an additional insured under another party's liability policy. Now, more than ever, lawyers drafting or reviewing contracts providing for additional insured liability coverage must closely review the underlying insurance policies providing such coverage.
The majority of CGL policies with additional insured endorsements use endorsement forms drafted by the Insurance Services Office (ISO). This is a private compaany and a subsidiary of Verisk Analytics, which has its headquarters in Jersey City, NJ. For years, ISO has drafted property and casualty insurance forms and obtained approvals for those forms from state regulatory agencies. Thus, in New York, parties use ISO form contract documents because those forms already have been approved by the New York Department of Financial Services.
An additional insured endorsement is an optional insurance policy endorsement that parties use to assign risk between them. The endorsement is used in conjunction with the contractual assignment of risk for liability for personal injury or property damage and for the assignment of the cost of insuring against those risks. The party with the superior bargaining power, the “upstream party,” contractually requires that the “downstream party” hold the upstream party harmless for claims arising from the downstream party's acts or omissions. The upstream party requires the downstream party to indemnify it for the costs associated with the defense of a third-party lawsuit, and requires the downstream party to provide general commercial liability insurance coverage for the upstream party.
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