Everything You Wanted to Know About Liability Insurance
Liability Civil Under Common Law: A body of law consisting of past court decisions and customs and usages recognized by courts.
Liability Contingent: Liability for damages arising out of the acts or omissions of others, who are not employee or Agents of the entity held responsible.
Liability Contractual: Liability assumed under some contract such as a lease that would not be present except for the contract.
Liability Criminal: Criminal liability is enforced by the state and it results into punishment in the form of fine or imprisonment or both
Liability Insurance: Any form of coverage whereby the insured is protected against claims of other parties from specified events.
Liability Insurance Act Policy under “Public Liability Insurance Act 1991” (Hazardous substances) Effective date 1.4.1991 for new owners and 1.4.1992 for existing owners: To provide through Insurance, immediate relief by “owners” to persons affected due to: “Accidents: Fortuitous, sudden or unintentional occurrence” While “handling e.g., Manufacture, processing, treatment, package, storage, transportation by vehicles, use, collection, destruction, conversion, offering for sale, transfer or the like. Hazardous Substances viz., Any substance or reparation which, by its reasons of its chemical or physio-chemical properties or handling is liable to cause harm to human beings, other creature, plants, micro-organism property or the environment (the Environment protection Act, 1986) and as notified, by the Central Government (Public Liability Insurance Act – 1991) ” On No fault liability basis.
Insurance Limit: “Anyone Accident” – Minimum equal to “Paid-up capital up to maximum of Rs. 5 crores. “Anyone year” – up to a maximum of Rs. 15 Crores. Liability Beyond Insurance Limit: To be met by Environmental relief fund (ERF) Further liability beyond total of Insurance and ERF – to be borne by the owner. Contribution to relief fund: equal to insurance premium to be paid to the underwriting company. Limit of Indemnity: single limit to be selected not below the paid-UP CAPITAL of the insured up to a maximum of Rs. 5 crores. Measure of Indemnity: No fault basis. (a) Death and TPD: Rs. 25,000/- (b) PPD: on the basis of Percentage of disablement as Certified by authorized physician. (c) Loss of wages due to TPD not exceeding Rs. 1000/-per month up to maximum of 3 months subject to hospitalization exceeding 3 days and victim being above 16 years of age. (d) Medical Expenses up to Rs. 12,500/- additional in all above cases. (e) Property damage up to Rs. 6000/- on damage to Private property not belonging to leased to or under any other control of the owner. Maximum liability of insurer: As per limits above.
Liability Insurance, Bodily injury: Insurance against loss due to claims for damages because of bodily injury (including death) to persons not employees.
Liability Insurance Carriers Legal Liability Insurance: Covers Carriers legal liability as per provisions of Carriers’ Act 1865. In order to provide an insurance cover to the common carriers and transporters against the stipulation of absolute liability under the Carriers Act, the Carrier’s Legal Liability Policy has been devised. At present the CLL policy gives the following coverage:
Basic cover: covers damage to goods caused by fire, explosion and or accident to the vehicle carrying the goods due to negligence or criminal act of his servants. The cover will commence with the loading of the cargo and end with its unloading.
Wider cover: The following risks are covered in wider cover which is allowed as a package deal and no partial extension may be allowed: (i) Damage to cargo as in basic cover. (ii) Damage by fire, burglary, riot & strike and malicious damage affecting the goods at warehouses or transshipment yard, whilst in the custody of the carrier. (iii) Shortage of goods due to theft or pilferage of cargo at any time whilst in the custody of the carrier. (iv) Breakage, leakage, damage due to improper handling.
Exclusions: (a)Riot and Strike (available as add-on), war perils, nuclear and radiation perils, contractual liabilities, liability to own, employees, agents and sub agents and their properties and belongings (b) Losses due to inherent defects, mechanical or electrical derangements, (c) Consequential loses, and (d) Carriage of illegal, illicit or smuggled goods.
Duration: The cover is during transit, incidental storage, transshipments and up to seven days after reaching final place.
Liability Insurance, Charterers: This covers the damage sustained by the vessel during the period of charter for which the charterers are held legally liable. This also covers demurrage if the vessel is delayed to carry out repairs for which the charterers are held legally liable.
Liability Insurance, Cinemas: Policy covers legal liability for: Accidental bodily injury, Accidental damage to property of third parties. Policy also covers legal liability for accidental bodily injury / illness of a third party caused by poisonous or foreign or deleterious matter in food or drink served in the auditorium.
Liability Insurance, Clinical Trial Insurance Policy: The policy covers the sum which the insured shall be liable to pay as damages / compensation for claims made by subjects for death or injury or any other adverse reaction in the body as a result of participating in clinical trial. The term insured would include all stakeholders in the trial. The cover includes legal costs also. Breaches of data may also be covered. The policy is generally issued on NO Fault principle. The policy may be a single trial or multi trial policy. Post-trial coverage is also offered for a limited period as decided. The territorial limits are also specified. The policy does not extend to cover (i) Damages within permissible limits as are to be expected within such trials. (ii) Deliberate contravention of instructions by the subject (iii) Deterioration in condition which would normally have occurred even without the trial (iv) War and nuclear perils (v) Fines and Penalties.
Liability Insurance, Commercial General Liability / Combined General Liability / Common General Liability (CGL): The CGL policy is an ISO form, widely used to provide commercial enterprises with premises and operations liability coverage, products and completed operations insurance and personal injury coverage. Premises medical payments coverage is often included as well. Under a Public Liability the indemnity provided is for a claim due to legal liability arising out of accident occurring in the insured premises arising out of injury or damage. In case of a product liability policy the indemnity is for claims due to legal liability arising out of accidents arising out of defects in products specified. In contrast, the operative clause of CGL cover for legal liability to pay damages because of bodily injury or property damages. There are no limitations for cover in terms of insured premises or products specified as long as the occurrence and claims are in coverage territory specified, thereby providing a wider covers. CGL also provides cover for supplemental payments, medical expenses and fire damages. Cove rage is restricted to cover only third party liabilities.
Liability Insurance, Contractual Liability: Insurance against loss under a contractual liability agreement.
Liability Insurance, Cybercrime Liability: Scope of the Policy is to cover cyber liability exposures like Libel, Hacking, inadvertent virus transmission, copyright infringement, loss of identity. The policy coverage is on the lines of an errors and omissions policy to cover liabilities arising out of hacking email frauds, web developing, website maintenance and E-commerce.
Liability Insurance, Directors and Officers Liability & Insurance:
Liability, Directors and Officers Liability: The Corporate decisions that yesterday did not materially affect other people today powerfully impinge on their lives and the subject matter has a direct bearing on the potential liabilities of Corporate Directors’ and Officers’ today. The increase in litigation against directors reflects a change in the attitude of the general public towards greater management accountability and hence the position of a Director is becoming far more onerous. Actions are most likely to be commended in relation to: (i) Actual or alleged breach of trust (ii) Breach of duty or warranty of authority (iii) Neglect or Omission (iv) Error or misstatement or misleading statement (v) Failure to supervise or regulate properly.
Who might bring an Action? (i) Shareholders: alleging financial loss attributable to failure by Directors or Officers responsible (ii) Employees: alleging unfair dismissal, discrimination, sexual harassment or mismanagement of pension funds (iii) Customers: alleging that they have suffered financial loss following wrongful advice on the application or suitability of product (iv) Competitors: alleging that their businesses have been adversely affected by a restrictive trade practice e.g.: price fixing (v) Members of the Public: failure to effect and maintain adequate control or services. (vi) Regulatory Bodies: for offences under the Companies Ordinance or breaches in similar legislation.
Potential Allegations: The following list provides typical examples of “wrongful acts” which could be alleged against a Director or Officer – though, this is not an exhaustive list: (i) Inaccurate statements of financial conditions (ii) Errors in annual accounts (iii) Conflict of interest (iv) Lack of judgment, diligence or good faith (v) Mismanagement of funds (vi) Misstatements in prospectuses (vii) Allotment of shares (viii) Unauthorized or imprudent loans or investments (ix) Failure to obtain competitive bids (x) Imprudent expansion resulting in a loss (xi) Using inside information (xii) Unwarranted dividend payment, salaries or compensation (xiii) Misleading statements filed with the Stock exchange (xiv) Misrepresentation in acquisition agreement for the purchase of another Company (xv) Wrongful dismissal of an employee.
Possible consequences: Civil Action: May involve personal liability for: (a) Damages (b) Claimant’s Costs (c) Costs of Personal Legal Representation. Criminal Action: prosecution may be brought under various Statutes. Whilst fines and penalties under Criminal Actions are not insurable, Directors and Officers may face substantial costs in arranging legal representation to defend such actions. These legal costs are covered by the D & O insurance provided the defense is successful.
Liability Insurance, Directors and Officers Liability Insurance: The Directors and Officers of companies may become liable to pay damages for wrongful acts such as failure of supervision of the affairs of the Company etc. Directors and Officers liability policy is therefore designed to provide protection to Directors and Officers of a Company against their personal liability for financial losses arising out of wrongful acts or omissions in their capacity as directors or officers. The coverage is granted in two parts under the insuring clause: (i) Company Reimbursement: Insurance of the Organization itself – Organization is entitled (and often obliged) by way of its articles of association to indemnify its Directors and Officers. However, the extent of this indemnity is strictly limited under the Companies act. The organization may only reimburse to the extent of legal costs expended and then only if the Director/Officer successfully defends that action. (ii) Directors and Officers: (a) Insurance of the Director/Officer – if the action against him is successful, then the Director/Officer is “on his own”. He is exposed not only to legal costs but to any damages which might be awarded against him. The organization will now of course be precluded from indemnifying him.(b) The second part of the cover (D&O) will now respond, provided that the Director/Officer has not acted in a deliberately dishonest manner. Fines and other penalties are not recoverable. As in the case of other liability insurance policies, the D&O policy is subject to compulsory excess and certain exclusions. Besides, the policy provides for Directors and Officers to comply with certain specified claim conditions. Many coverage are provided under the policy as Add-on extensions.
Liability Insurance, Dram Shop Liability Insurance: A form of insurance contract that protects the owners of an establishment in which alcoholic beverages are sold against liability arising out of accidents caused by intoxicated customers who have been served or sold the alcoholic beverages.
Liability Insurance, Employers: Insurance against loss to claims for damages by employees for bodily injuries (including death); excludes liability under workmen’s compensation laws.
Liability Insurance, Farm Liability: This is a specially designed property liability package policy. The coverage applies to liability arising out of farming activities including products liability. Limited pollution cover for discharge of smoke or chemicals used in normal farming operations can be added. Employers’ Liability Coverage for farm workers can also be added.
Liability Insurance, Global Coverage Policy: Large business groups which operate in many countries have special insurance problems. They may have to arrange local insurance as per local laws. Nevertheless, the group head office may arrange a “Global Legal Liability Policy” to cover any gaps in local insurance cove rages or on an “excess of loss” basis to take care of large losses.
Liability Insurance Hotel Owners: Policy covers legal liability of Hotel owners for: (a) Accidental bodily injury (including death) of any visitor or guest including while using facilities such as Health clubs, Beauty parlors, Hair dressers Shops, Swimming Pools (life guard provided or not), Sports (indoor-Table Tennis, Squash, Bowling, etc.), (outdoor: Boating, Deep Sea Diving etc, Skiing, Hang Gliding, Sky Diving etc) (b) Accidental damage to the property of any visitor or guests. (c) Injuries (including death) due to food poisoning. (d) Loss of visitors property from the premises. The Policy covers legal liability only if both injury or damage is caused through fault or negligence of (i) the insured (ii) the insured’s contractor (iii) any of its employees or (iv) defect in the ways, works, machinery or plant.
Liability Insurance, Insurable Interest: Insurable interest is the legal right to insure. The three essentials of insurable interest are:
- The existence of a potential legal liability which is capable of being insured
- Such potential liability must be the subject matter of insurance, and
- The insured must bear a legal relationship to the subject matter whereby he will benefit on freedom from liability and will lose financially on creation of liability.
- Ownership, use, or possession of premises,
- Activities that are considered to be a public or private nuisance,
- Sale, manufacture and distribution of products or services.
- Property of others in the care, custody or control of the business.
- Fiduciary relationships such as the management of employee benefit plan assets or service on the firm’s Board of Directors.
- Professional activities.
- Vehicles – usually automobiles but may include aircraft, watercraft and other vehicles.
- Employees who may suffer a job-related injury or disease.
- All property and activities not listed under any other category.
Author
Lajpat Ray Chandnani 9672981414 | [email protected] www.lajju.in
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