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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.

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