International Construction Law Review
RECENT DEVELOPMENTS IN THE INSURABILITY OF FORCE MAJEURE AND (NOT COMPLETELY) UNFORESEEN CONDITION RISKS
GEORGE ANTHONY SMITH, THOMAS PHILIP WILSON1 AND GREGG E BUNDSCHUH2
INSURING THE CONSTRUCTION PROJECT
Introduction
Owners and contractors have long relied on insurance as an integral component of construction project risk management. This insurance coverage comes at a cost ultimately borne by project owners. A 1993 study by the Construction Industry Institute determined that insurance costs rose from 1–2 per cent of total project costs in the mid-1980s to 5–7 per cent of total costs by the early 1990s.3
Nonetheless, insurance coverages—although in forms and amounts, and for purposes, that are open to debate—are a necessity on every construction project. Even the most professionally designed, painstakingly planned, and competently constructed projects will fall victim to unanticipatable occurrences. These occurrences often cause unanticipated costs the responsibility for which no single project participant can fairly—or practically—bear. In such cases, insurance coverage is a necessary safety net. This paper discusses how the insurance and construction industries have recently widened and strengthened the safety net to include coverages which defray some of the costs of risks that were considered uninsurable not long ago: the risk of delay caused by the occurrence of force majeure
events and of encountering unforeseen conditions.
Large construction projects have typically involved numerous, sometimes dozens, of separate insurance policies. For example, the prime contractor
1 Messrs Smith and Wilson practice in the Construction Group of Sutherland Asbill & Brennan LLP in Atlanta, Georgia, USA.
2 Mr Bundschuh is Senior Vice President at Marsh USA, Inc (an insurance broker and risk management consultant).
3 Construction Industry Institute (CII), Allocation of Insurance-Related Risks and Costs on Construction Projects,
Pub. 19–1, at 5 (Nov. 1993). There is a growing view at least in the United States, that contractors in particular have come to rely too heavily on insurance coverage; using the availability of insurance coverage to avoid the adverse financial effects of inappropriate risk allocation and ill-conceived contractual relationships. See,
e.g., ibid.
at 102.
[2001
The International Construction Law Review
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