Richard H. Monk, III | Bradley Arant Boult Cummings LLP | October 23, 2017
Could you be providing “professional services” that might lead to liability excluded by your commercial general liability policy? The answer may be different than you think.
A recent unpublished Eleventh Circuit opinion provides a reminder that it is important to review your CGL policy and understand whether you are covered. The facts upon which the court relied in Witkin Design Group, Inc. v. Travelers Property Casualty Co. of America appear simple enough. An intersection traffic accident resulted in the death of a young boy. The resulting lawsuit included a negligence claim against the landscape architect who designed and constructed the intersection. The landscape company called on its CGL insurer to defend and indemnify it from the claim. You can imagine the company doing so with the thought that a liability claim had been brought and its general liability policy would provide coverage for that claim.
Like most CGL policies, however, this CGL policy contained a professional services exclusion that excluded coverage for claims “arising out of the rendering of or failure to render any ‘professional service’.” Professional services were defined by the policy as “any service requiring specialized skill or training.” The CGL policy said that professional services included:
a. Preparation, approval, provision of or failure to prepare, approve, or provide any map, shop drawing, opinion, report, survey, field order, change order, design, drawing, specification, recommendation, warning, permit application, payment request, manual or inspection;
b. Supervision, inspection, quality control, architectural, engineering or surveying activity or service, job site safety, construction contracting, construction administration, construction management, computer consulting or design, software development or programming service, or a selection of a contractor or subcontractor; or
c. Monitoring, testing, or sampling service necessary to perform any of the services included in a. or b. above.
But, these are merely non-exhaustive examples. The Eleventh Circuit was clear: “the professional service exclusion applies to any service requiring specialized skill or training.” Because the claim for which the landscape company sought coverage arose out of its design and construction of the intersection, which required specialized skill or training, the court found the professional liability exclusion applied, resulting in no coverage under the CGL policy.
The Eleventh Circuit’s opinion is not ground-breaking. Whether an insured’s conduct constitutes excluded “professional services” is a frequently litigated coverage question, which turns on policy language, the insured’s specific conduct, and applicable state law’s definition of professional services. Other recent examples of cases in which courts have found no coverage because of professional services exclusions include a claim against a home inspector alleging failure to discover insect and water damage; a claim against a real estate broker who failed to disclose an adverse property condition; a claim against a property manager for failing to properly supervise construction; and a claim against an insurance company for misrepresenting insurance policies.
Simply because a professional services claim is excluded by the CGL policy, however, does not always mean that the insured is left holding the bag without insurance coverage. Many companies purchase professional liability policies, which are errors and omissions policies intended to provide coverage for claims arising from the specific professional services in which the insured is engaged. It is critical to understand, however, that these policies may define “professional services” differently than the insured’s CGL policy, and care should be taken to ensure that your professional liability policy covers what your CGL policy may exclude.
So, while the Eleventh Circuit’s recent decision is not ground-breaking, it does provide a useful reminder to think about whether you have the liability coverage that you think you have. We suggest that you consider the following questions, and discuss them with your broker or attorney if necessary:
- Does my CGL policy have a “professional services” exclusion?
- Am I engaged in conduct that could expose me to liability claims and that could be construed as a “professional service” as defined and excluded by the policy?
- Do I need to purchase a professional liability policy to protect from those claims, and does that professional liability policy cover what the CGL policy excludes?
It is better to know the answers to these questions now, rather than find out after a claim has been filed that you don’t have the coverage you thought. After all, It Pays to be Covered.™