Lead Liability

By Anderson, Jackson L., Jr. | Journal of Property Management, September/October 1996 | Go to article overview

Lead Liability


Anderson, Jackson L., Jr., Journal of Property Management


LEAD LIABILITY by Jackson L. Anderson Jr., CPCU Many property owners and professional property managers are beginning to address lead-based paint hazards in their housing stock. With federal real estate notification and disclosure requirements taking effect in September and December 1996, owners and managers must now turn their attention to lead-hazard evaluation and control activities to the extent their states require.

In addition to existing liability exposures arising out of already present lead-based paint and lead hazards, owners and managers can face additional liability when evaluation and control work is carried out by independent contractors. The exposure to liability may depend upon the degree of control the owner or manager exercises over individual or project-wide work specifications, the direct supervision or oversight of construction activities and workers, and other hands-on participation. Owners and managers should carefully consider which liability insurance coverages should be purchased and maintained by their contractors.

Of course, when owners or managers use their own maintenance crews or employees to perform some or all of this work, exposures to liability can be even greater.

Policies that Cover Lead

The typical commercial general liability (CGL) and professional liability errors and omissions (E&O) insurance policy may not provide coverage for lead-liability claims or lawsuits because of the inclusion of either an "absolute pollution exclusion" or a lead-liability exclusion -or both. Fortunately, there is specific lead-liability insurance for lead-hazard evaluation and control activities.

There are about a dozen insurers, operating in the niche market of environmental liability insurance, that offer some form of this coverage. These insurers place a strong emphasis on training, related experience, safety, loss prevention, and a lack of previous claims in evaluating and pre-qualifying abatement contracting firms and individuals.

Further, the coverage currently offered is somewhat restrictive and may have mandatory policy conditions that require insured firms or individuals to adhere to prescribed work practices or carry out certain activities, such as clearance dust wipe testing, in order for the coverage to apply to any reported claims.

Lead-abatement contractors liability insurance policies usually follow the CGL format and are written, modified, or endorsed to include lead-liability coverage. Policies that carry $1 million per-occurrence/$ 1 million policy aggregate limits of liability and that have a $2,500 or higher per-claim deductible can have annual premiums that are much higher than typical CGL policies without lead-liability coverage. Minimum premiums for such policies currently range from $7,500 to $10,000.

Special E&O policies are available for those professionals engaged in lead-paint inspections, lead-hazard risk assessments, lead-hazard control project design, and/or specification development and oversight. …

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