Insuring Real Property Businesses

Robert E. Frankel, John N. Ellison

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For real property businesses, maintaining first and third party insurance in proper order can be a matter of economic life or death. Insuring Real Property Businesses is the first book to focus exclusively on the insurance issues facing the real estate industry, from the most basic to the most advanced.

This in-depth look at policy terms, legal issues and risks includes coverage of: “terms of art” commonly used in the field; insurance contract interpretation and construction; first party property and business interruption insurance: third party comprehensive general liability insurance(CGL); CGL coverage exclusions, including the “pollution exclusion'; directors and officers liability insurance: professional liability insurance; surety bonds; accessing other persons' insurance policies; and loss control services.

Insuring Real Property Businesses ddiscusses uniform principles as well as unique aspects of particular categories, lines and types of insurance, including the varieties of first party insurance of greatest concern to real estate-related businesses—property insurance and builders' risk insurance. Insuring Real Property Businesses is an essential legal guide for owners, developers, contractors, lenders, engineers, architects and other real estate professionals.

#00689; looseleaf, one volume, 608 pages; published in 2007, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-145-3

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 608
  • ISBN: 978-1-58852-145-3
  • Pub#/SKU#: 689
  • Volume(s): 1

Author Image
  • Robert E. Frankel
Robert E. Frankel is Director and Senior Corporate Counsel at Dish Network, L.L.C. Previously, he was a shareholder at Anderson Kill & Olick, P.C., and a law clerk to the Honorable John R. Padona in the United States Disctrict Court for the Eastern District of Pennsylvania. Mr. Frankel has represented numerous real estate related businesses in connection with insurance coverage issues, and has written and spken actively on this topic. He graduated Order of the Coif, earning a J.D. from Loyola Marymount University Law School in Los Angeles, and earned a B.A. in Economics with honors from the University of California at Berkeley, Mr. Frankel is a member of the bars of the States of California, Colorado, and Pennsylvania.

Author Image
  • John N. Ellison
John N. Ellison is a partner in the Philadelphia office of Reed Smith, LLP.  His practice concentrates in the insurance coverage area exclusively on behalf of policyholders, ranging from Fortune 50 companies to small closely held companies.  Mr. Ellison has a wide variety of experience in the insurance coverage field including coverage for environmental liabilities. He has been recognized by Chambers USA 2007: America’s Leading Lawyers for Business as an “analytical and upbeat litigator with a great presence in the courtroom” and a “first-class trial attorney.”  Chambers ranked his firm’s Insurance Recovery Group No. 1 for Nationwide Insurance: Policy Holder. 
Mr. Ellison is a member of the District of Columbia Bar and the  Philadelphia, New York State and American Bar Associations.  He received his J.D. from Dickinson School of Law and his B.A., with honors, from Ohio State University.


§1.01 Introduction

Types, Lines, and Categories of Applicable Insurance

§2.01 Overview
§2.02 Terms of Art
§2.03 Third Party Insurance
§2.04 First Party Insurance
§2.05 Hybrid Policies
§2.06 Distinction Between First and Third Party Insurance

The Insurance Contract

§3.01 Overview
§3.02 Insurance Policies as Ordinary Contracts
[1] Freedom to Contract
[2] Interpretation and Construction of Insurance Policies
§3.03  State Insurance Regulation
[1] Regulatory Filings
[2] Language at Variance with Approved Forms
§3.04 Lost Policies
[1] Absence of Bad Faith
[2] Secondary Proof of Existence and Terms of Coverage
§3.05 Miscellaneous Policy Provisions
[1] Arbitration
[2] Choice of Forum and Choice of Law
[3] Contractual Limitations Clauses
[4] Allocation
[5] Subrogation

First Party Insurance

§4.01 Overview
§4.02 First Party Insurance Defined
§4.03 First Party Property/Builders Risk Insurance Issues
[1] Insuring Agreement
[2] “Covered Property”
[3] “Direct Physical Loss Or Damage”
[4] Covered Cause Of Loss
§4.04 Additional Conditions and Provisions
[1] Debris Removal
[2] Loss Mitigation and “Sue and Labor”
[3] Valuation
[4] Appraisal
[5] Notice and Proof of Loss
[6] Salvage
[7] Co-Insurance
§4.05 Business Interruption and Extra Expense Coverage
[1] Insuring Agreement
[2] Extra Expense
[3] “Business Income”
[4] “Suspension” or “Interruption”
[5] Physical Loss or Damage
[6] Period of Restoration
[7] Wider Economic Effects of a Loss

Comprehensive or Commercial General Liability (CGL) Insurance: Coverage A for “Bodily Injury” or “Property Damage” Liabilities

§5.01 Overview of CGL Insurance
§5.02 Coverage A Insuring Agreement
§5.03 Coverage A Issues
[1] The Identity of the Insurance Company—Meaning of “We” or “The Company”
[2] Allocation: The Meaning of “Those Sums” or “All Sums”
[3] The Identity of the Policyholder—Meaning of “You” or “The Insured”
[4] “Legally Obligated to Pay as Damages”
[5] “Bodily Injury” or “Property Damage”
[6] “Occurrence”
[7] Duty To Defend
§5.04 General Conditions
[1] Notice
[2] Cooperation Clause
[3] Voluntary Payments
[4] Non-Cumulation of Liability Provisions
[5] Supplementary Payments

Comprehensive General Liability Exclusions for Coverage A

§6.01 Overview
§6.02 Fortuity Doctrine
[1] Definition and Specific Exclusions
[2] Scope
[3] Application to Construction Defects
[4] Estoppel: Loss Control as a Shield
[5] Punitive Damages
§6.03 Contractual Liability Exclusion
[1] Contractually Assumed Liabilities
[2] Liability in the Absence of Agreement
[3] “Insured Contract” Executed Prior to the Injury
[4] Indemnitee’s Indemnitee
§6.04 Damage to Property Exclusions [Exclusions J(1) Through J(6)] 
[1] Exclusions for Damage to Property Owned, Leased, or Controlled by Policyholder [J(1), J(3), and J(4)] 
[2] Alienated Premises Exclusion [J(2)] 
[3] Performing Operations Exclusion [J(5)] 
[4] Faulty Workmanship Exclusion [J(6)] 
§6.05 “Your Product” Exclusion [Exclusion K] 
§6.06 “Your Work” Exclusion [Exclusion L] 
[1] “Your Work”
[2] Damages Occurring During Operations
[3] Damage To Others’Work
[4] Subcontractor Work
§6.07 Impaired Property Exclusion [Exclusion M] 
[1] Property Physically Injured
[2] “Impaired Property”
[3] Exception
§6.08 Product Recall Exclusion [Exclusion N] 
[1] Loss of Use
[2] Recall of Work
§6.09 Professional Services Exclusion
§6.10 Mold Losses
[1] Pollution Exclusion
[2] Mold Exclusion

Comprehensive General Liability Insurance— The Pollution Exclusions

§7.01 Overview
§7.02 The Qualified Pollution Exclusion
[1] “Sudden and Accidental” Exception
[2] Construction of “Sudden”
[3] What Does “Sudden and Accidental” Modify?
§7.03 The Absolute Pollution Exclusion
[1] Language
[2] Regulatory and Drafting History
[3] Case Law
§7.04 The Total Pollution Exclusion

Coverage B for “Personal Injuries” and “Advertising Injuries”

§8.01 Overview
§8.02 Insuring Agreement
[1] 1998 Personal and Advertising Injury Form
[2] The 1986 Personal and Advertising Injury Form
[3] The 1973 Personal and Advertising Injury Form
[4] Distinctions Between 1973 and 1986/1998 Forms
§8.03 Coverage Issues
[1] Business or Advertising Activity
[2] Offense Committed in Coverage Territory During Policy Period
[3] Enumerated Offenses
§8.04 Common Exclusions
[1] Intentional Acts Exclusion
[2] Breach of Contract Exclusion

Professional Liability and Directors and Officers Liability Insurance

§9.01 Overview
§9.02 Insuring Agreements
[1] E&O Insuring Agreement
[2] D&O Insuring Agreement
[3] Common Elements
§9.03 Coverage Issues
[1] Identity of the Policyholder
[2] “Loss”
[3] “Wrongful Act” in Correct Capacity
[4] Claims Made Trigger
§9.04 Exclusions
[1] General Construction
[2] Common Exclusions
[3] Severability

Surety Bonds

§10.01 Overview
§10.02 Types of Bonds
§10.03 Nature of the Surety Relationship
§10.04 Creation of Suretyship and the Nature and Extent of Surety’s Liability
§10.05 Commencement and Duration of the Risk
[1] Pre-Existing Defaults
[2] Breaches By Principal
[3] Conditions of Liability
[4] Discharge of Surety
[5] Right to Indemnity
§10.06 Liability, Damages, and Bad Faith
[1] Bad Faith and Punitive Damages
[2] Consequential and Liquidated Damages and Attorneys’Fees

Other Persons’Insurance

§11.01 Overview
§11.02 Indirect Access to Other Persons’Policies
[1] Named Insured Status
[2] Certificates of Insurance
§11.03 Transfer of Coverage
[1] Anti-Assignment Provisions
[2] Contractual Assignment
[3] Transfer by Operation of Law

Loss Control Services

§12.01 Overview
§12.02 Offensive Use of Loss Control: Assertion of Claim
[1] Restatement (Second) of Torts and the “Good Samaritan” Rule
[2] Duty
[3] Breach of Duty
[4] Damages and Proximate Causation
[5] Enumerated Exceptions
[6] Statutory Immunity
§12.03 Defensive Use of Loss Control: Estoppel