Template agreements – particularly those designed for larger transactions such as manufacturing, product trials, distribution or licensing – often include obligations on a party to have insurance against commercial risks.
Typically, the insurance clause will appear after a clause dealing with liability and indemnities. Faced with such a clause in a contract that you are reviewing, some of the obvious alternative ways of dealing with the clause are:
- To say to your client “ask your insurers whether you comply with the clause”. Depending on the answer, and on the wording of the clause, it may be safe to leave the clause as drafted.
- To say to the other party in the negotiations “here are details of our current insurance; we are not going to change our insurance, nor are we going to promise that we have particular insurance” and modify the clause accordingly.
- To delete the insurance clause, eg on the grounds that the scale of the deal does not justify the inclusion of an insurance obligation.
Getting advice from the insurer
Sometimes, where advice is sought from the insurers, the lawyer is then asked to review the answer. Depending on the scale and risks of the deal, it may be more important to know the correct answer than just have someone to blame if they gave a wrong or misleading answer. Possible points to consider include:
- Is the answer from the insurance underwriter (ie the party to the insurance contract) rather than the insurance broker (a middle-man)? If it is from the broker, is he taking responsibility for the answer (ie you can sue him if he is wrong) or just giving an opinion?
- Does it directly answer the question?
- Does the answer give the impression that the person answering it understood the question? Sometimes, the individual you deal with at an insurer or broker is a liaison person. He may not have a deep understanding of commercial liability issues, which are at the complex end of the spectrum of insurance questions, compared with say questions about the costs of repair to the CEO’s company car.
- In some situations, insurance may be a regulatory requirement, or there may be a code of conduct within an industry that a particular form of insurance will be maintained. The contract may require a party’s insurance to comply with such a regulation or code of conduct. This may lead to supplementary insurance questions of the insurer.
Insurance clauses sometimes raise drafting issues, including the following:
- Sometimes, the wording uses US insurance industry jargon, which doesn’t work when dealing with UK insurance policies and industry practice.
- An example of the above is that US contracts sometimes refer to the other contracting party being “named” on the policy of the party that is required to insure. This may not be acceptable to a UK insurer. At most, he may be willing to “note the interest” of the other party on the policy. The lawyer should probably not attempt to second-guess what the insurer will say on this issue, and instead should defer making changes (other than perhaps deleting the obligation to name) until the insurer has commented.
- The clause may state that insurance must be maintained for several years after the contract comes to an end. This is because some policies provide cover on what the insurers call a “claims made” [during the year of the policy] basis while others provide cover on a “claims arising” basis. If liability results, for example, from a party’s negligence or breach of contract, litigation to establish that liability may be started several years after the end of the contract. Typically, the time limit under English law is 6 years from the date of the breach of contract. If the policy only covers claims made during the year of the policy, it may be necessary to continue cover for 6 years after the contract comes to an end. The contract drafter may wish to establish with the insurer whether post-contract insurance is needed in respect of the types of liabilities that the insurance clause requires, and modify the clause accordingly.
- In very heavyweight insurance clauses, there is sometimes an obligation on a party to get its insurers to notify the other party if cover is ended or the terms of the policy are changed. There is likely to be a cost associated with such a service, if the insurer is even willing to do it. In many cases, if faced with such an obligation, a first response may be to seek to delete it from the contract.
- Sometimes, the clause will use wording requiring a party to have insurance against all risks arising from the contract. This is probably an impossible obligation to meet, as all insurance is limited in scope, subject to conditions and subject to a financial cap. At the very least the obligation should be reduced to one of obtaining insurance that is reasonably available at a reasonable cost, and ideally one would be more specific as to the types, amount, etc.
Standing back from the contractual obligation
Contracts impose obligations. If a contractual obligation is not met, a party may suffer loss and may seek to recover its loss from the party that breached the obligation. Some contracts specifically address the question of losses arising from breach, eg by including indemnities. Bringing a claim for breach of contract, or under an indemnity, will be pointless if the breaching party doesn’t have the resources to meet the liability. Those “resources” might include having insurance.
Insurance can, therefore, be a useful way of mitigating contractual risk, and contractual obligations to insure can part of a package of risk management measures. Sometimes, though, contractual obligations to insure are excessive for the scale and risk of the contract. IP Draughts has an impression that sometimes insurance clauses are included in a contract because they were in the template that the drafter used when preparing the contract, rather than because the commercial manager who is responsible for the deal really thinks the obligation is important. In such cases, it may not take much effort in negotiations to agree to remove the insurance clause from the draft contract.