Combined Excess of Loss Policy for Employers’, Public · PDF fileXLBA0117 – BIBA Combined Excess of Loss Policy 4 DEFINITIONS Except for headings, unless expressed to the contrary,

www.cnaeurope.com

This Policy has been underwritten by CNA via an online scheme exclusively designed for BIBA members

Combined Excess of Loss Policy for Employers’, Public and Products Liability Insurance

XLBA0117 – BIBA Combined Excess of Loss Policy 2

CONTENTS

Operative Clause .................................................................................................................................... 3

Definitions................................................................................................................................................ 4

Exclusions ............................................................................................................................................... 9

General Conditions ............................................................................................................................... 12

Claims Conditions ................................................................................................................................. 14

Public And Products Liability Policy Endorsements .............................................................................. 14

Data Protection Notice .......................................................................................................................... 18

Complaint Procedure ............................................................................................................................ 19

2


OPERATIVE CLAUSE

In consideration of the Insured having paid to the Insurer the Premium in accordance with the Premium Payment Condition and in reliance upon any information provided to the Insurer on behalf of the Insured, the Insurer agrees, subject to all Terms, Conditions and Exclusions of the Policy, to provide insurance in the manner and to the extent provided hereinafter:

PROVIDED THAT:

1. the liability of the Insurer shall not exceed the applicable limits as set out in the Policy, except where agreed by the Insurer in writing and incorporated into this Policy; and

2. the liability of each Insurer shall be several and not joint, and shall be limited to the proportion set against each insurer’s name in the Schedule of Insurers; and

3. the Insured shall bear, for its own account, the amount specified in the Schedule as Deductible or Excess as applicable.

Signed on behalf of the Insurer

David Brosnan

Chief Executive Officer


DEFINITIONS

Except for headings, unless expressed to the contrary, words, terms and phrases that are printed in bold shall bear the meanings set out below.

Business

means the business activities of the Insured as detailed in the Primary Policy and/or Proposal.

Costs and Expenses

means all costs and expenses defined in the Underlying Insurance. For the avoidance of doubt, claimants’ costs recoverable from the Insured shall constitute damages for the purpose of this Policy and shall not be included within the meaning of Costs and Expenses.

Insured

means:

1. the company or other organisation including any subsidiary companies of the Insured that are in existence at the inception date of the insurance and the person or people, where shown as insured in the schedule; and

2. the legal or personal representatives of the Insured in respect of any claim under this Policy incurred on behalf of the Insured.

Insured loss

means a loss indemnified in accordance with the terms, limitations, exclusions, conditions and definitions of the Underlying Insurance.

Insurer

CNA Insurance Company Limited.

Limit of Indemnity

As regards the Underlying Insurance, Limit of indemnity means:

1. the same as is defined in the Underlying Insurance; and

2. no more than the total limit specified therein.

Where a Limit of indemnity is stated in the schedule as in the aggregate, that aggregate is the most the Insurer will pay for all insured events during the Policy Period.

The Insurer’s liability under this Policy is subject to the applicable Limits of Indemnity as specified in the schedule, which is the most the Insurer will pay in respect of any one claim, including any interrelated claims arising out of any one insured event, occurrence or series of occurrences. For the purposes of applying the limits, all interrelated claims shall be considered one claim.

Offshore

means from the time of embarkation onto a conveyance at the point of final departure from land to any offshore rig or any offshore platform whilst on any offshore rig or offshore platform and until such time of disembarkation from a conveyance onto land upon return from any offshore rig or offshore platform.

Policy

means:

1. all terms, conditions, exclusions, extensions, all whether special or of general application; and

2. the schedule and any Proposal; and

3. all schedules, notices, appendices, subjectivity notices and other documents agreed by the Insurer and the Insured, attaching from time to time; and

4. all endorsements and variations issued from time to time,

all of which shall be read together and constitute the contract of insurance.

Policy Period

means the period shown in the schedule or such other period agreed by the Insurer in writing.

Products

means any Products or goods (including containers, labelling or instructions, provided in connection therewith) which are sold, supplied, erected, repaired, altered, treated or installed by the Insured in the course of the Business and no longer in the possession of, or under the control of the Insured.


Proposal

means any information supplied by or on behalf of the Insured by any medium including but not limited to electronic, written or oral, which shall include any completed proposal form and other relevant information that the Insurer was provided for the purposes of assessing the risk insured under this Policy and the terms and conditions to be applied. Where this Policy is direct or indirect renewal or replacement of a preceding Policy underwritten by the Insurer and no new proposal is completed, the last available proposal shall be deemed to be applied to this Policy.

Primary Policy

Primary Policy means the policy specified as such in the schedule.

Territorial Limits

means the geographical area of cover stated below:

1. Public and Products Liabilities:

a. The United Kingdom but excluding any offshore installations within the continental shelf around the United Kingdom;

b. Elsewhere within the European Union but only in connection with the Business carried on by the Insured at or from any premises situated in the United Kingdom;

c. Elsewhere in the world other than the United States of America or Canada arising out of business visits by directors or non-manual employees ordinarily resident in the United Kingdom.

2. Employers’ Liability:

a. The United Kingdom but excluding any offshore installations within the continental shelf around the United Kingdom;

b. Elsewhere in the world arising out of business visits by directors or employees ordinarily resident in the United Kingdom, but only for non-manual visits within the USA or Canada;

provided such Employers’ Liability claim is brought within a Court of Competent Jurisdiction located within the United Kingdom.

Ultimate net sum

Ultimate net sum means the sum actually paid in the settlement of an Insured loss for which the Insured is liable after making proper deductions for all recoveries, salvages and other insurances, other than the Underlying Insurance itself (including any excess of such), whether recovered or not but excluding Costs and Expenses where Costs and Expenses do not reduce the Limit of Indemnity of the Underlying Insurance.

Underlying Insurance

Underlying insurance means the Primary Policy and those policies specified in the schedule as Underlying insurance.

United Kingdom

United Kingdom means Great Britain, Northern Ireland, the Channel Islands or the Isle of Man.

War

means war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, mutiny, revolution, rebellion, insurrection, uprising, military or usurped power or confiscation by order of any public authority or government de jure or de facto or martial law but not including Terrorism.


INSURING CLAUSE

In consideration of the Insured having paid to the Insurer the premium in accordance with the premium payment condition and in reliance upon any information provided to the Insurer on behalf of the Insured, the Insurer agrees to provide insurance in the manner and to the extent hereinafter provided.

Follow Form

This Policy shall be subject to the same terms, conditions, definitions, limitations and exclusions as the Primary policy. Should any provision of the Underlying Insurance conflict with the provisions of this Policy (including but not limited to any condition, definition, limitation or exclusion of this Policy), the provisions of this Policy shall apply and be determinative in relation to any obligation or liability of the Insurer.

Indemnity

The Insurer agrees to indemnify the Insured for the amount of the Ultimate net sum which exceeds the total Underlying Insurance Limit of Indemnity that the Insured is held or determined to be legally liable to pay as damages, including claimant costs recoverable from the Insured as a result of an Insured loss, provided that the Insurer's liability under this Policy shall not exceed any Limit of Indemnity applying to this Policy stated in the schedule.

Combined Coverage

The Insurer’s liability for Employers’ Liability, Public Liability and Products Liability where insured in the Underlying insurance and which may be indemnifiable under this Policy by way of Clause 1 and 2 above shall each comprise separate insured sections for the purpose of the applicable limits of indemnity under this Policy. Each of which shall be subject to the applicable limits of indemnity as specified in the Schedule, which is the most the Insurer will pay in respect of any one claim and for all claims in the aggregate under that insured section.

Limit of Liability

The Insurer’s liability under this Policy is subject to the applicable Limits of Indemnity as specified in the schedule, which is the most the Insurer will pay in respect of any one claim, including any interrelated claims arising out of any one insured event, occurrence or series of occurrences. For the purposes of applying the limits, all interrelated claims shall be considered one claim.

Costs & Expenses

The Insurer’s liability for Costs and Expenses under the Insuring Clause, above, is subject to the following conditions:

Underlying costs in addition

Where the terms of the Primary Policy provide that Costs and Expenses do not reduce the Limit of indemnity of the Primary Policy, then any such Costs and Expenses incurred or paid under this Policy shall not reduce the Limit of indemnity of this Policy. The Insurer shall contribute to Costs and Expenses incurred in the investigation, settlement or defence of an Insured loss that may give rise to a claim in excess of the total Limit of Indemnity of the Underlying Insurance in the ratio that this Policy's share of damages payable, including claimant costs recoverable from Insured, as finally settled bears to the total amount of damages payable, including claimant costs recoverable from Insured.

Underlying costs inclusive

Where the terms of the Primary Policy provide that Costs and Expenses reduce the Limit of Indemnity of the Primary Policy, then any such Costs and Expenses incurred or paid under this Policy shall reduce the Limit of Indemnity of this Policy.

Special Conditions

The following conditions apply, in addition to the General Policy Conditions.

Attachment of Liability

Liability to pay under this Policy shall not attach unless and until the Primary Policy and Underlying Insurance insurers shall have admitted liability for the Primary Policy and Underlying Insurance limits or unless and until the Insured has by final judgement been held liable to pay an amount which exceeds such Primary Policy and Underlying Insurance limits and then only after the Primary Policy and Underlying Insurance insurers have paid or have been held liable to pay the full amount of the Primary Policy and Underlying Insurance limits except where proportionality is applied under the Primary Policy or Underlying Insurance in respect of the Insurance Act 2015.

Concurrency of underlying insurance

Where the Primary policy or Underlying Insurance is not concurrent with this Policy and the aggregate limit of the Primary Policy or Underlying Insurance, if any, has been eroded before this Policy incepted, the Insurer will accept the erosion only where it has been previously advised and accepted by the Insurer. In any case, the aggregate limit of this Policy, if any, will continue to apply.

Ex-Gratia claims

Any decision of the Underlying Insurance to accept a claim ex-gratia or without prejudice without the prior written acceptance of the Insurer shall not be binding on the Insurer and shall not operate to erode any aggregate limit of the Underlying Insurance, nor shall any action or decision of the Underlying Insurance which prejudices the Insurer in the conduct or settlement of any claim under this Policy be binding on the Insurer.


Failure of underlying insurance

In the event one or more insurer under the Underlying Insurance fails to pay any claim or Costs and Expenses incurred in the defence or settlement of such claim as a result of the insolvency, bankruptcy or liquidation of such insurer, then the Insured shall be deemed self-insured for the amount of the limit of liability of such insurer which has not paid as a result of such insolvency, bankruptcy or liquidation.

Insurer consent

In the event of a loss arising to which the Insurer may be liable to contribute, no settlement or costs or expenses shall be incurred on the Insurer's behalf without the Insurer's written consent being first obtained and if the Insurer so consents it shall contribute to the said costs in the proportion that the Insurer's share of the loss as finally settled bears to the total sum payable. If however a settlement of the loss be practicable whether by compromise or otherwise for a sum not exceeding the Primary Policy and Underlying Insurance limits, no costs shall be payable by the Insurer and no settlement of a loss by agreement shall be effected by the Insured for a sum in excess of the Primary Policy and Underlying Insurance limits without the written consent of the Insurer.


EXTENSIONS

Unless stated as in-operative in the schedule, the Insurer hereby agrees, subject to the terms and conditions of this Policy, to provide the following extensions of cover, as set out below.

Drop down on reduced aggregates

Where the Limit of Indemnity of the Underlying Insurance is reduced by an Insured loss for which this Policy provides an indemnity and to which an aggregate limit applies in the Underlying Insurance this Policy shall apply in excess of such reduced amounts but not in respect of any reduced inner aggregate or sub limits.

Exhausted aggregates

Where the Limit of Indemnity of the Underlying Insurance is exhausted by an Insured loss for which this Policy provides an indemnity and to which an aggregate limit applies in the Underlying Insurance this Policy shall apply in excess of such exhausted amounts but not in respect of any reduced inner aggregate or sub limits, however that this Policy shall only pay in excess of the retention or deductible applicable to the Primary Policy, which shall be applied to any subsequent claim in the same manner as specified in the Primary Policy.

Non-recoverable underlying costs and expenses

The Insurer agrees to pay Costs and Expenses not recoverable from the insurers of the Underlying Insurance as a result of the insurers of the Underlying Insurance paying or offering to pay the total Limit of Indemnity of the Underlying Insurance, provided that:

1. the Insurer has exercised the Insurer's right to assume charge of and conduct in the name of the Insured the defence or settlement of an Insured loss;

2. the Insurer shall not pay any Costs and Expenses incurred by the insurers of the Underlying Insurance prior to their payment of or offer to pay the total Limit of Indemnity of the Underlying Insurance or for which they would otherwise be liable;

3. the Insurer shall have the right to appeal a judgment for an amount in excess of the total Limit of Indemnity of the Underlying Insurance if the Insured or the insurers of the Underlying Insurance have a right of appeal but elect not to exercise such right. The Insurer shall be liable for all Costs and Expenses incurred with respect to such appeal, subject to the Limit of Indemnity of this Policy.


EXCLUSIONS

Unless stated to the contrary, the following Exclusions shall not apply to any claim for Employers’ Liability.

The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to:

Asbestos and Polychlorinatedbyphenols

This exclusion additionally applies to Employers’ Liability Claims.

asbestos or polychlorinatedbyphenols whether it is:

1. airborne as a liquid, gas, or fibre, or carried or transmitted on clothing or by any other means; or

2. contained in, or forming part of, any building material, cooling or insulative material.

Defamation

The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to defamation, libel or slander, advertising injury, discrimination, harassment, or injurious falsehood.

Employee Injury

The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to bodily injury (including mental anguish or psychological injury) to any partner, director or employee or other such similar person under a contract of employment with the Insured, which arises out of and in the course of their employment or engagement by the Insured.

Employers’ Liability exclusions


The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to loss or liability:

1. for which compulsory motor insurance or security is required under any road traffic legislation in force within any member country of the European Union;

2. to any employee arising while Offshore.

Fines

any fines, duties, taxes, levies or expenses incidental to demand, or any other pecuniary penalties including but not limited to punitive or exemplary damages, fines or penalties whatsoever incurred by the Insured, the Insured’s predecessors, any employee, former employee or subcontractor, as a result of any infringement in codes of practice, legislation or regulations.

Government Action

martial law, confiscation, nationalisation, requisition or destruction by or under the order of any government or public or local authority.

Overseas Domiciled Operations

the Insured’s operations, subsidiaries, companies, branches or representatives of power of attorney that are domiciled outside the United Kingdom.

Pollution and Clean Up Costs

any pollution or contamination which results other than from a sudden identifiable unintended and unexpected incident and where such incident takes place in its entirety at a specific and identified time and place during the Policy Period.

Products

physical loss of or physical damage to Products or any costs or expenses incurred in repairing replacing recalling or making any refund in respect of Products.

Professional Services

any advice designs, formulae or specifications given for a fee or professional services rendered by or on behalf of the Insured.

Public Policy


in respect of which indemnity from the Insurer is contrary to public policy either locally where such claim or loss arises or in the domicile of the Insurer or Insured.

Punitive, Exemplary, Aggravated or Multiple Damages


punitive, exemplary, aggravated or multiple damages.


Radioactive Contamination


any:

1. ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; or

2. any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter; or

3. the radioactive, toxic, explosive or other hazardous properties of any:

a. nuclear installation, reactor or other nuclear assembly or nuclear component thereof; or

b. radioactive matter. The exclusion in this sub-clause does not extend to radioactive isotopes (other than nuclear fuel) when such isotopes are being prepared, carried, stored or used for commercial, agricultural, medical, scientific or other similar peaceful purposes; or

4. any chemical, biological, bio-chemical or electromagnetic weapon.

Sanctions Exclusion Clause


No insurer shall be deemed to provide cover and no insurer shall be liable to pay any claim or provide any benefit hereunder to the extent that the provision of such cover, payment of such claim or provision of such benefit would expose that insurer, its parent company or its ultimate controlling entity, to any sanction, prohibition or restriction.

Territorial Limits


any:

1. damage, loss, injury or liability arising out of any claim arising outside the Territorial Limits; or

2. judgments, awards, settlements or orders of courts outside the Territorial Limits; or

3. orders seeking to enforce judgments, awards, settlements or orders of courts outside the Territorial Limits; or

4. liability arising under the law of any jurisdiction outside the Territorial Limits,

unless stated herein to the contrary.

USA / Canada Products

any Products which to the knowledge of the Insured are sold, supplied, erected, repaired, altered, treated or installed by the Insured in or for delivery or use in United States of America or Canada.

US Jurisdiction


any claim made in or liability in respect of any judgment, award, payment, Costs and Expenses or settlement delivered, made or incurred within countries which operate under the laws of the United States of America or Canada (or to any order made anywhere in the world to enforce such judgment, award, payment, costs and expenses or settlement either in whole or in part).

War and Terrorism

1. War; or

2. Terrorism, regardless of any other cause or event contributing concurrently, or in any other sequence to the Claim, Circumstance, loss, damage, liability, Defence Costs and Expenses, cost or expense.

Additionally, this Policy excludes and the Insurer shall not be liable to the Insured in respect of any Claim, Circumstance, loss, damage, liability, Defence Costs and Expenses, cost or expense based on, arising out of or in any way connected to any action taken in controlling, preventing or suppressing any act of Terrorism.

If the Insurer alleges that by reason of this Exclusion any Claim, Circumstance, loss, liability, Defence Costs and Expenses, cost or expense is not covered under this Policy, the burden of proving the contrary shall be upon the Insured.

In the event that any portion of this Exclusion is found to be invalid or unenforceable, the balance shall remain in full force and effect.

Welding and cutting

The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to physical loss of or physical damage to property arising out of the use of any welding or cutting equipment, blow lamps or blow torches away from the Insured’s premises.


Work at height and depth

The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to any work undertaken at:

1. a height greater than 12 metres from ground level for outside work or floor level for inside work;

2. a depth greater than 4 metres from the surface of the ground.

Work in connection with

The Insurer shall not be liable under this Policy in respect of any loss based on, arising out of or in any way connected to any work in or in connection with:

1. towers, steeples, chimney shafts, blast furnaces, dams, canals, viaducts, bridges or tunnels;

2. aircraft, airports, ships, docks, piers, wharves, breakwaters or sea walls;

3. collieries, mines, chemical works, gas works, oil refineries or power station;

4. Offshore installations or bulk oil petrol gas or chemical storage tanks or chambers;

5. pile-driving water diversion or the use of explosives;

6. demolition unless in connection with any work of erection or reconstruction, alteration, maintenance, installation or repair.


GENERAL CONDITIONS

Assignment

Assignment or transfer of this Policy or of any of the rights of the Insured shall not be valid without the prior written consent of the Insurer.

Audit and inspection

The Insurer, or such representative as the Insurer may designate, will be permitted but not obligated to inspect the Insured's property and operations at any time. Neither the Insurer's right to make inspections nor the making thereof nor any report thereon will constitute an undertaking on behalf of or for the benefit of the Insured or others, to determine or warrant that such property or operations are safe.. Authorisation

The Insured agrees that the first named Insured on the schedule will act on behalf of the Insured with respect to giving of all notice to the Insurer the receipt of notices from the Insurer, the payment of the premiums, the receipt of any return premiums that may become due under this Policy, and the agreement to and acceptance of Endorsements.

Cancellation

The Insurer may cancel this Policy by giving the Policyholder written notice, stating when, not less than 30 (thirty) days thereafter, such cancellation shall be effective. The Insurer shall then return premium to the Insured on a pro rata basis.

The Insured shall have no rights of cancellation under this Policy.

Change in Circumstances

The Insured shall give notice and full particulars as soon as reasonably practicable of any fact or event, which materially changes the information provided to the Insurer in the Proposal.

The Insurer reserves the right to vary the terms of this Policy upon receipt of such notice and particulars, and to accept or deny cover and to establish a separate rate and premium for any such cover.

Choice of Law and Jurisdiction

This Policy shall be governed by, and construed solely in accordance with, the laws of England and Wales. The Insured and Insurer agree that all disputes shall be resolved by arbitration in accordance with the Dispute Resolution clause. However, the Insured and Insurer agree that subject always to this obligation, any and all disputes surrounding the obligation to arbitrate or the enforcement, dispute or challenge of any award shall be subject to the exclusive jurisdiction of the courts of England and Wales.

Compulsory Insurance

This Policy is not subject to the provisions of any law relating to compulsory insurance of liability to employees in the United Kingdom. This Policy does not apply to any claim in respect of which liability under the Primary policy would not have attached but for the provisions of any such law relating to the compulsory insurance of liability to employees.

Dispute Resolution

Any dispute arising out of, or in connection with, this Policy, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause.

1. The number of arbitrators shall be one.

2. The seat, or legal place, of arbitration shall be England.

3. The language to be used in the arbitral proceedings shall be English.

Fraud

If any benefit is obtained or attempted to be obtained under this Policy by way of any fraudulent means or devices by the Insured, or anyone acting on the Insured’s behalf, then in accordance with the Insurance Act 2015 or other legislation the Insurer shall not be liable to pay the Claim and may terminate the Policy with effect from the time of the fraudulent act, retaining any premiums paid.

However, treating a contract as having been terminated does not affect the rights and obligations of the Insured or the Insurer with respect to a relevant event (for example, the occurrence of a loss, the making of a claim, or the notification of a potential claim) occurring before the time of the fraudulent act.

Insurance Act 2015

In accordance with the Insurance Act 2015, the Insured shall ensure that the information provided by or on behalf of the Insured in connection with this insurance (whether at inception or otherwise) is presented in a clear and accessible manner and shall be materially accurate and not omit any material information which is known by the Insured or likely to be of relevance to the Insurer in accepting the insurance and setting the terms and conditions of this Policy.

This may include but not be limited to any knowledge or information:

1. available to, held, known or ought reasonably to have been known by any of the Insured’s senior management or equivalent, the Insured’s broker, the Insured’s risk manager and any individual responsible for this insurance; or

2. which would have been revealed following a reasonable enquiry.


The remedies available to the Insurer under the Insurance Act 2015 include:

a. changing or adding terms and conditions to the Policy which may take effect from inception;

b. the reduction in the amount paid for a Claim; or

c. where the Insurer would not have insured the risk; treat the Policy as if it never existed, returning any premium received; or

d. deliberate or reckless acts may cause the Policy to be treated as if it never existed.

Insolvency

The insolvency bankruptcy receivership or any other refusal or inability to pay by the Insured and/or any insurer shall not operate to:

1. reduce or exhaust the Limit of indemnity of the Underlying insurance;

2. increase the liability of the Insurer under this Policy.

Maintenance of underlying insurance

It is a condition of this Policy that the Underlying Insurance shall be maintained in full effect during the Policy Period except for any reduction of the Underlying Insurance limits solely by payment of any claims or Costs and Expenses incurred in the defence or settlement of such claims. If this condition is breached then this Policy shall automatically and immediately terminate with effect from the date when the Underlying Insurance cease to be maintained or are deemed to have ceased to be maintained.

No amendments to the Underlying Insurance shall form part of or be binding upon this Policy until agreed in writing or by electronic medium by the Insurer.

Notices to the Insured

Any notices to the Insured under this Policy shall be provided to the Insured at the address shown in the schedule. If properly posted to the Insured at such address, the date of posting shall constitute the date such notice was given.

Premium Payment

It is a condition to the Insurer’s liability under this Policy that the premium shall be paid in full by the Insured to the Insurer:

1. in accordance with the Brokers Terms of Business Agreement; or

2. no later than 90 (ninety) calendar days of the commencement of the Period of Insurance; or

3. in respect of any additional or installment premium, within 90 (ninety) days of it falling due,

4. whichever is the earliest.

If any premium (including any installment premium) is not paid and accepted by the Insurer, the Insurer shall provide written notice to the Insured in accordance with the ‘Cancellation’ clause.

Several Liability

If more than one insurer subscribes to this Policy, the obligations of the insurers under this Policy are several and not joint, and are limited solely to the extent of their individual subscriptions. The subscribing insurer shall not be responsible for the subscription(s) of any co-subscribing insurer who, for any reason, fails to comply with its duties hereunder.

Third Party Rights

Unless expressly stated, nothing in this Policy is intended to confer a directly enforceable benefit on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999, or such other equivalent legislation of the jurisdiction in the country of domicile of the Insured, or otherwise.


CLAIMS CONDITIONS

Notification

The Insured shall give notice in writing, or by an agreed electronic medium, to the Insurer as soon as practicable and in any event within thirty (30) days of receipt of any claim, suit or becoming aware of circumstances:

1. that could give rise to a claim under this Policy or potentially result in the total Limit of Indemnity of the Underlying Insurance being reduced by fifty percent (50%) or more, whether or not by way of settlement or claim reserve or otherwise; and/or

2. that include any severe injury claim, such as but not limited to multiple deaths, paraplegia, tetraplegia or similar permanent disability.

Notice to the Insurer must be given in writing to the Claims Manager at the Contact Details Section.

Following notice to the Insurer, the Insured must immediately send the Insurer copies of any request, demand, order, notice, summons, legal paper and all documents relating thereto in connection with an insured event as soon as received by the Insured or in the Insured's possession. The Insured must co-operate with the Insurer or their appointed agents and give all such information, assistance and forward all documents to enable the Insurer to investigate, settle or resist any claim as the Insurer may require.

Claim rights of the Insurer

The Insurer is under no obligation to automatically follow settlements in discharge of the liability of the insurers of the Underlying Insurance. By acceptance of this Policy, the Insured agrees the Insurer may at its own discretion and expense retain counsel to associate in the defence or settlement of any claim and to cooperate with such counsel.

The Insurer may at any time pay the Limit of Indemnity of this Policy (less any amounts already paid or incurred) or any lesser amount for which at the Insurer's absolute discretion all claims arising out of an Insured loss can be settled. The Insurer will then relinquish control of such claims and be under no further liability in respect thereof.

The Insurer shall be entitled where an Insured loss has occurred and a claim has been agreed, to set off any outstanding premiums or charges owing to the Insurer under this or any other Policy.

Recoveries and Subrogation

All recoveries or payments recovered or received subsequent to a loss settlement under this Policy shall be applied first to subrogation expenses, second to claims or Costs and Expenses incurred in the defence or settlement of such claims by the Insurer hereon, third to claims or Costs and Expenses incurred in the defence or settlement of such claims by the insurers of the Underlying insurance, and fourth to the applicable retention or deductible under the Primary Policy. The Insurer will contribute its share and no more of the costs of any recovery in the proportion of the benefit the Insurer has received from the recovery. Provided always that nothing in this Policy shall be construed to mean that loss settlements under this Policy are not payable until the Insured's ultimate net loss has been finally ascertained.

In the event the Underlying Insurance elects not to pursue any recovery the Insurer shall have the right but not the duty to request the Insured transfer to the Insurer all rights and remedies, indemnities or advantages held by or available to the Insured whether from the insured debtor or from other parties for the purpose of recovering or reducing an Insured loss in respect of which a claim has been paid, with the intention that the Insurer will be fully subrogated to all such rights, remedies, indemnities and advantages. The Insured and any person acting on their behalf must not waive any rights of recourse or recovery and has a continuing duty to perform these obligations.

Public and Products Liability Policy Endorsements

Unless stated to the contrary, the following Endorsements shall not apply to any cover under the Policy for Employers’ Liability.

The following Additional Endorsements shall apply to specific Business only if stated in the Schedule and only for the specified Endorsement Effective Period.

Endorsement 1 – Application of Heat Away from Premises Conditions

It is hereby agreed that the ‘Wielding and Cutting’ Exclusion stated in the ‘Exclusions’ to this Policy is deleted.

It is a condition to indemnification under this Policy that when welding or flamecutting equipment, blow lamps, blow torches or hot air guns (the Equipment) are used by the Insured or any employee of the Insured away from the Insured’s premises the Insured shall ensure:

1. that before using the Equipment:

a. an employee is appointed to be responsible for fire safety and for ensuring that fire precautions are taken; and

b. such employee shall obtain permission from a person acting for the occupier of the site to use the equipment and shall arrange for the required fire extinguishing appliances to be available at the site; and

c. every employee on site where the Equipment is to be used shall be made aware of the location of fire alarms and fire fighting equipment; and

d. the area in which work is to be carried out must be adequately cleared of all combustible material to a distance of not less than 7 metres; and

e. immovable combustible materials floor and other structures within or near to the area of operations must be protected by the use of blankets or screens of incombustible material; and


f. if heat is to be applied to any wall or partition or to any material built into or passing through a wall or partition an inspection must be made of the other side prior to commencing work in order to ensure that no combustible materials are in danger of ignition by direct or conducted heat; and

g. there shall be available for immediate use near to the area of operations a two gallon fire extinguisher or in circumstance where the use of water would be dangerous a multi-purpose dry powder extinguisher with a minimum capacity of 5lbs; and

h. nearby hydrants and hoses if present must be connected up in readiness for immediate use and tested prior to commencement of operations.

2. that during use of the Equipment:

a. the Equipment shall be operated only by an employee trained or experienced in its use; and

b. a responsible person shall act as a fire watcher alongside the person operating the Equipment; and

c. the Equipment is lit for as short a time as possible before use and extinguished after use and not left unattended whilst alight; and

d. changes of gas or fuel cylinders or canisters are made in the open.

3. that after using the Equipment:

a. a thorough examination must be made of the area in which the hot work has been undertaken including the other side of walls or partitions immediately after the termination of each period of work; and

b. further checks should be made at half hourly intervals for a further two hours or if the site is to be vacated a final check no less than half an hour after the termination of the last period of hot work; and

c. any security personnel remaining on or coming onto the site be made aware of the areas in which hot work has been undertaken.

Endorsement 2 – Bonfire Conditions

It is a condition to indemnification under this Policy that the following precautions shall be taken in connection with any bonfire started by the Insured:

1. the bonfire shall be at least 20 metres from any building, tree, haystack, hedge, fence, growing crops or other property; and

2. adequate fire extinguishing apparatus shall be kept ready for immediate use; and

3. all moveable combustible materials shall be removed from the immediate vicinity of the bonfire; and

4. the bonfire shall not be unattended whilst it is alight; and

5. the bonfire shall be completely extinguished prior to being left unattended and a careful examination carried out to ensure that there are no smouldering remains.

Endorsement 3 – Excluding Efficacy

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to the failure of any Product to fulfil its intended function.

Endorsement 4 – Excluding Paint Spraying

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to paint spraying.

Endorsement 5 – Excluding Treefelling and Lopping

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to tree felling or lopping.

Endorsement 6 – Excluding Loss of Data

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to loss of information in any computer programmes tapes discs or data recording equipment.

Endorsement 7 – Not In Use

Endorsement 8 – Removal of Work Undertaken at Height Exclusion

It is hereby agreed that ‘Part 1’ of the ‘Work undertaken at Height and Depth’ Exclusion stated in the ‘Exclusions’ to this Policy is deleted.

Endorsement 9 – Removal of Work Undertaken at Depth Exclusion

It is hereby agreed that ‘Part 2’ of the ‘Work undertaken at Height and Depth’ Exclusion stated in the ‘Exclusions’ to this Policy is deleted.


Endorsement 10 – Auctioneers, Valuers & CCC Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to:

1. property in the care custody or control of the Insured for the purpose of valuation or auction; or

2. erroneous or inaccurate valuation.

Endorsement 11 – Aviation & Marine Products Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to Products which are sold, supplied, erected, repaired, altered, treated or installed in or for use in or on any aircraft, aerospatial device, hovercraft or waterborne craft or for marine or aviation purposes.

Endorsement 12 – TSE & CJD Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to Transmissible Spongiform Encephalopathy (TSE), Creutzfeldt-Jacob Disease (CJD), variant Creutzfeldt-Jacob Disease (vCJD) or new variant Creutzfeldt- Jacob Disease (nvCJD).

Endorsement 13 – Chemists & Druggists Liability Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to the making up dispensing prescribing sale or supply of any drug or medicine by or on behalf of the Insured irrespective of whether:

1. obtainable only by prescription issued by a medical practitioner; or

2. being of proprietary manufacture.

Endorsement 14 – Crop Spraying Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to the treatment of crops and/or soils by spraying.

Endorsement 15 – Electromagnetic Fields Exclusion


1. the actual, alleged or threatened emission, seepage, dispersal, release or escape of electromagnetic or ionizing radiation at any time; or

2. any request demand or order to abate or mitigate any electromagnetic or ionizing radiation or exposure to such radiation or in any way respond to or assess the effects of such radiation; or

3. any claim or ‘suit’ relating to the abatement or mitigation of or in any way responding to or assessing the effects of electromagnetic or ionizing radiation.

Endorsement 16 – Genetically Modified Organisms (GMO’s) Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to Products that have undergone a process or treatment designed to manipulate, enhance, alter or modify any genetic code.

Endorsement 17 – Molestation & Abuse Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to alleged or actual abuse and/or molestation committed by an employee or any other such party for which the Insured may be held liable.

Endorsement 18 – Medical Malpractice Exclusion


1. the provision or administering of or the failure to provide or administer any medical or other treatment including drugs or medical preparations or any operation;

2. any medical or clinical diagnosis, consultation, check-up, investigation, assessment, test or analysis;

3. the use of X-rays or general anaesthetic or the giving of any injection or inoculation.

Endorsement 19 – Real Estate Exclusion


1. mining, quarrying or coal getting;

2. waste disposal or landfill site operations.


Endorsement 20 – Seedmans (Germination) Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to any crop proving untrue to type.

Endorsement 21 – North American Inclusion

It is hereby agreed that in relation to liability arising from employee visits to the United States of America or Canada and Products exported from the United Kingdom to the United States of America or Canada, then ‘USA/Canada Products’ and ‘US Jurisdiction’ Exclusions stated in the ‘Exclusions’ to this Policy are deleted.

Insofar as concerns actions brought against the Insured in United States of America or Canada or any court operating under their jurisdiction, the Insurer shall not indemnify the Insured under this Policy for pollution contamination and/or expense arising out of testing monitoring and/or clean-up.

The Limit of Indemnity specified in the schedule shall be the maximum amount payable by the Insurer and is inclusive of Costs and Expenses.

Exclusions ‘USA / Canada Products’ and ‘US Jurisdiction’ stated in the ‘Exclusions section to the Policy shall remain for any Public, Products or Employers’ Liability claim not directly arising out of a non-manual visit by an employee to the United States of America or Canada or otherwise arising directly out of Products exported to the United States of America or Canada from the United Kingdom.

Endorsement 22 – RTA Exclusion

The Insurer shall not be liable under this Policy in respect of any loss or liability based on, arising out of or in any way connected to the ownership, possession or use under the control of the Insured or of any employee of the Insured of any mechanically propelled vehicle.

However this part of this exception shall not apply in respect of personal injury or physical loss of or physical damage to property arising in circumstances where compulsory insurance or security in respect of any such vehicle is not required by relevant road traffic legislation and the Insured is not entitled to indemnity under any other insurance or indemnity.


DATA PROTECTION NOTICE

The Insurer shall process Personal Data that it obtains in connection with this Policy in accordance with its Privacy Policy, or where applicable, the Privacy Policy of its local branch operations in Europe (available at www.cnahardy.com ) and as summarised herein.

The term “Personal Data” refers to personally identifiable information about an individual, such as their name, job description, health related data, birthday, email address or mailing address. The Insurer may process Personal Data in order to arrange the Insured’s insurance cover (including renewals and Claims), to comply with a legal requirement, to administer accounts, to provide customer service, to perform credit checks, to engage in fraud prevention and market our products and services.

In order to arrange the Insured’s insurance cover, or process any Claims, the Insurer may disclose Personal Data to other companies within its Group, its insurance partners, underwriters, loss adjusters and other third parties who act for the Insurer for further processing. In some instances, it may be necessary to transfer Personal Data between the Insurer’s European and international offices. This may include Personal Data being disclosed to legal or regulatory bodies in order to comply with diverse legal regulations, including those imposed on the Insurer’s parent company based in the United States. The Insurer shall endeavour to ensure that any such data processed or disclosed is appropriately protected by technical and operational security measures and contractual measures where necessary.

The Insurer shall also use contact details to keep the Insured informed by post, telephone or e-mail of our additional products or services and developments in the insurance sector generally which may be of interest to the Insured. Please note that the Insurer may continue to use these contact details for these purposes after the Insured’s Policy has lapsed. If the Insured, or any of its contact persons, do NOT wish to be contacted for marketing purposes as set out above, please e-mail or write to us at the addresses stated in the Schedule.

With certain exceptions, and on payment of a small fee, the Insurer shall disclose Personal Data to the individuals about whom the Insurer maintains such data. The Insurer shall also correct, amend or delete any inaccurate data and the Insured or any individual data subjects may inform the Insurer of any such changes by contacting the Insurer at the address stated in the Schedule. The Insurer shall only keep Personal Data for as long as reasonably necessary for the purposes for which it was collected or to comply with any legal, ethical or document retention requirements.

Where the Insured provides the Insurer with Personal Data about its directors, officers, employees, or other individuals, the Insured confirms that it has provided such individuals with the Insurer’s Privacy Policy, and if necessary, has obtained all necessary consents to the processing of their Personal Data as set out above and further described in the Insurer’s applicable Privacy Policy at www.cnahardy.com

Questions about the Insurer’s data protection practices should be directed to the Insurer at the details set in the Schedule to this Policy.

to unsubscribe or amend your Personal Data, contact: [email protected], or

to request deletion, a copy of Personal Data, or for any other individual data subject queries, contact: [email protected].

http://www.cnahardy.com/

http://www.cnahardy.com/

mailto:[email protected]



COMPLAINT PROCEDURE

The Insurer aims to provide the Insured with a first class service. However, there may be occasions when the Insured feels that this objective has not been achieved. Any enquiry or complaint by the Insured shall be directed as follows:

1. If the complaint is regarding the service received from the insurance advisor, the Insured should contact them directly.

2. If the complaint is relating to a claim handled by CNA Insurance Company Limited, or a claim handling agent appointed by CNA Insurance Company Limited, the Insured should contact The Claim Director at the ‘Claims notification’ address set out in the Schedule to the Policy.

3. If the complaint is relating to a claim handled by Hardy (Underwriting Agencies) Limited, or a claim handling agent appointed by Hardy (Underwriting Agencies) Limited, the Insured should contact The Claim Director at the ‘Claims notification’ address set out in the Schedule to the Policy or write to Complaints, Lloyd's Market Services, One Lime Street, London EC3M 7HA. Tel: 020 7327 5693; Fax: 020 7327 5225; E-mail: [email protected].,

4. If the complaint is regarding any other aspect of the service received from CNA Insurance Company Limited or Hardy (Underwriting Agencies) Limited please contact the Head of Legal & Compliance Services at the ‘Insurer’s address’ set out in the Schedule to the Policy.

The following information will be required with any complaint:

1. Policy number and / or claim reference number (if applicable);

2. The Insured’s full name, address and telephone number;

3. Details of any previous correspondence relating to the matter;

4. The name of any claims handling organisation with whom the Insured has been dealing, and the reference number (if applicable); and

5. The nature and full details of the complaint.

The Insured shall receive an acknowledgement within 5 (five) working days of receipt of the complaint, together with a detailed timetable of the actions the Insurer shall take to investigate / handle the complaint. In the event the matter is still not resolved to the Insured’s satisfaction, the Insured may (subject to being an eligible complainant) be able to refer the matter to The Financial Ombudsman Service (FOS).

The FOS shall become involved if the Insured is an eligible complainant, as defined by the rules of the Financial Conduct Authority.

Eligible complainants are a:

1. private policyholder, or

2. micro enterprise, (that is an enterprise which employs fewer than 10 persons and has a turnover or annual balance sheet that does not exceed EUR 2 million), or

3. charity with a turnover of less than GBP 1 million, or

4. trustee of a trust with an asset value of less than GBP 1 million.

The FOS shall only consider a complaint if the Insured is an eligible complainant and if:

1. the Insurer has been given an opportunity to deal with the matter; and

2. the Insurer has sent the Insured a final response letter and the Insured has referred the complaint to the FOS within 6 (six) months of the Insurer’s final response letter, or

3. the Insurer has not responded to the complaint with a decision within eight (8) weeks.

The existence of this Complaint Procedure does not affect any right of legal action the Insured may have against the Insurer.

Financial Ombudsman Service Contact Details:

The Financial Ombudsman Service

Exchange Tower

London E14 9SR

Telephone: 0800 023 4567 (from a fixed line)

0300 123 9 123 (from a mobile telephone)

+44 20 7964 0500 (from outside of the UK)

Email: [email protected]

Website: www.financial-ombudsman.org.uk

Financial Services Compensation Scheme

CNA Insurance Company Limited and Hardy (Underwriting Agencies) Limited are covered by the Financial Services Compensation Scheme. The Insured may be entitled to compensation from the Scheme if the Insurer is unable to meet its obligations under this contract.

Entitlement to compensation under the Scheme depends on the type of business and circumstances of the claim. Further information about compensation scheme arrangements is available from the Financial Services Compensation Scheme 10th Floor, Beaufort House, 15 St Botolph Street, London EC3A 7QU or from their website (www.fscs.org.uk).


http://www.financial-ombudsman.org.uk/

http://www.fscs.org.uk/


CNA Insurance Company Limited (company registration number 950) and Hardy (Underwriting Agencies) Limited (company registration number 1264271) are authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority (firm reference number 202777 and 204843 respectively). CNA Services (UK) Limited (registered number 8836589). ‘CNA Hardy’ is a trading name of CNA Insurance Company Limited and/or Hardy (Underwriting Agencies) Limited. The above companies are all registered in England with their registered office at 20 Fenchurch Street, London, EC3M 3BY.

Switchboard: +44 (0)20 7743 6800 Facsimile: +44 (0)20 7743 6801 VAT registration number 667557779.

/

Documents

Combined Excess of Loss Policy for Employers’, Public · PDF fileXLBA0117 – BIBA Combined Excess of Loss Policy 4 DEFINITIONS Except for headings, unless expressed to the contrary,