E) Consequential Losses Insurance
Property Developers have to carry risks it is part and parcel of their business. The risk due to consequential losses on a construction site is a high one as there are so many factors that could delay completion and then so many headings under which additional expense or actual loss of anticipated income could arise. The measurement of each potential loss can be a problem and if not correctly assessed there may be underinsurance or an unnecessarily high premium being paid.
If any party involved with the construction will require consequential loss cover of any kind it is very unlikely that any insurer will be willing to assist unless it also provides the CAR insurances on the Contract Works. The reason for this lies with the fact that only by the insurer controlling the settlement of the material damage claim can the size of the consequential loss be minimised. Therefore, if the Contract Conditions call for the Contractor to arrange insurance on the works, it may be impossible for the Employer to arrange any consequential loss cover. The Employer will then have to arrange its own cover on the Contract Works in order to secure that consequential loss protection.
To avoid the possibility of the Employer effectively paying enhanced premiums for such Contract Works cover it is worthwhile making clear to the Contractor from the outset that the Employer is paying for its own cover, if this is the intention. The contract price quoted by the Contractor should then reflect this.
It is usually very difficult, if not impossible, to persuade the Contractor to reduce its price at a later date. In any case the Contractor may prefer to arrange its own cover on the Works so that he has control over any claims that may arise. This is understandable and the Contractor may also argue, possibly with some justification, that it can buy the CAR insurance more cheaply than the Employer. Faced with the problems of changing contract conditions, arranging cover on the works and, possibly, paying a higher premium for the privilege, any Employer could be forgiven for giving up the idea of arranging consequential loss cover.
It is not good practice to rely solely on liquidated damages instead. Apart from the fact that the Contractor may find it impossible to purchase insurance against liquidated damages, making recovery of a genuine loss uncertain, there is the possibility that the Contractor will be entitled to an extension of time under the Contract and will not be liable to pay any damages anyway. Properly arranged insurance for consequential losses will more accurately reflect the Employer’s loss than liquidated damages can and by arranging both CAR and consequential loss insurance with the same insurers there is the added advantage that the insurers will be looking for a quick resolution to any CAR claim in order to reduce the size of the consequential loss.
Under all the Standard Forms of Contract commonly used in Malaysia for construction works there exists clauses which make the Contractor obliged to compensate the Employer to the extent of liquidated and ascertained damages at the rate specified in the Contract. However, if the delay is due to certain relevant events an Extension of Time for completion of the Works will be given which will result in the Contractor not being obliged to pay any such damages.
Typically these relevant events would include:
A) force majeure;
B) exceptionally adverse weather conditions;
C) loss or damage occasioned by any one or more of the specified perils (see below);
D) civil commotion, local combination of workmen, strike or lock-out affecting any of the trades employed upon the works or any of the trades engaged in the preparation, manufacture or transportation of any of the goods or materials required for the works;
Contract Conditions do vary and therefore the proposal that an extension of time may be available is not necessarily correct in every instance.
The specified perils are normally defined as: fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion, but excluding excepted risks. The excepted risks include, amongst other things, radioactivity and pressure waves.
Force majeure may be defined in the Contract however as all contract are normally executed and subject to the laws of Malaysia consideration should also be taken of the definition of force majeure contained within the Contracts Act and adopted by the Courts. For insurance purposes the principal force majeure perils include: fire and allied perils, strikes, lockouts, labour disputes, change of law, order of any court enforcing a change of law and any other cause beyond the control of the Contractor.
It was possible to buy commercially viable cover for the consequential losses flowing from late completion or permanent abandonment of a project following the occurrence of force majeure perils or restricted to limited specified peril but following some extremely large claims it is now very difficult to obtain such coverage at commercially viable rates.
Where an insurance policy makes reference to All-Risks of Specified Perils the coverage will almost certainly include not just those mentioned above but, in addition, malicious damage, impact, subsidence, landslip, heave and, possibly, other accidental damage. Again such insurance is getting harder and harder to obtain and even flood coverage is being limited after the events of 2011 in Thailand.
Where liquidated and ascertained damages can be applied due to any delay scenario, the reality of the impact upon the Employer’s financial position can often be beyond the level of liquidated and ascertained damages set during tender negotiations. Whilst every effort is made to set the level of damages at an appropriate level, the full consequences are not often appreciated until a loss is sustained. Equally, it can be the case that on smaller projects it is difficult to reach agreement with the Contractor involved for an appropriate level of damages. This is because, if set accurately, they may preclude the Contractor from undertaking the development or, alternatively, the imposition of such damages would adversely affect any tender amount submitted.
Consider the scenario where an Employer is constructing a commercial development and has entered into lease or purchase agreements with a tenant. It may not simply be the Employers loss in rental which needs to be considered but also the tenant’s losses which result from delays. The amount of such damages will depend greatly on the activities and circumstances of the tenant and the content of the Employers lease or purchase agreement with that tenant.
Unfortunately, Employer’s acting as developers often carry more risk than is necessary by failing to insure or insure adequately, even though insurance cover can be purchased. Employers should at least consider taking insurance coverage for the following potential risks:
1) Loss of Rent/Revenue and Loss of Use of Sale Proceeds, including Assessment of Indemnity Period.
The loss of rental income/revenue income from use or the Employer being prevented from investing or using the proceeds of a sale are straight forward concepts even if their estimation may not be so. The indemnity period refers to the time limit imposed in a policy for which the Employer may claim losses as a result of event which allows the Employer to claim consequential losses. Thus Employers need to consider the period required to rebuild the project or how long it may take for the resale or re-letting following such rebuilding.
2) Expediting Costs (Additional Cost of Working)
Cover for expediting costs relates to the additional costs in executing and repair or rebuilding works over and above any amount recoverable under the CAR insurance covering the Contract Works. The amount recoverable is generally limited to what is reasonable compared to the saving produced on the claim for losses due to delays in completion. In practice this means that insurers will be reluctant to pay for expenditure that did not produce at least a corresponding saving on another part of the claim.
3) Costs Incurred in Raising or Extending Loans
The legal and other costs incurred in continuing existing loans or raising new ones as a result of delay by insured damage should also be covered. These may be included within the cover for lost rental income/revenue income or delays in repatriation of proceeds cover referred to above without the need for a separate sum insured.
4) Additional Overhead Costs
A delay in completion of the Works may incur the Employer in additional costs involving marketing, leasing, selling and legal costs in the case of a developer or where the facility will be used to manufacture or operate a business there could be additional rental costs, redundant employee costs, no productive machinery costs and many other increased overheads.
5) Higher cost of development finance
Many covers that are arranged which ignore the fact that development finance can cost more than finance secured against a completed project and that the level of borrowing which can be secured against a completed project is normally greater. The consequences of this are twofold. One being the increased cost of borrowing and secondly that more capital is tied up in the project for a longer period as a result of not being able to re-finance the loan against the completed project.
6) Additional Increase in Cost of Working Cover
It had been addressed that generally the Employer will be limited to reasonable cost of expediting completion of the Works. It may be possible to obtain cover over and above this to further expedite the works by means of an additional item although sometimes the matter is dealt with by means of an extension to the cover with an inner limit. The ability to make a claim under expediting costs might give the Employer useful options in the event of a loss. For example, the ability to make extra payments to speed up completion may enable them to avoid losses in the future that would fall outside the indemnity period.
7) Damage Away from the Site including Prevention of Access
Where CAR policies exclude coverage for losses that result from damage off site be it to the Contractors’ offices, materials or equipment stored off site, vehicles or plant in transit or whilst stored and damage to other phases of development It is prudent for the Employer to consider extending coverage and also insuring for such events as denial of access and/or failure of utilities.
8) Damage at suppliers’ premises
Some CAR policies offer limited cover in respect of delays incurred following damage at the premises of suppliers of materials to be used in the Contract Works. The most serious losses are likely to occur if there is a delay in the arrival of crucial or bespoke supplies such as lifts, special equipment and the like. And the limits of cover normally fail to adequately protect the Employer. Accordingly it is prudent for the Employer to consider the purchased sufficient levels of cover for delays as a result of damage to all suppliers to the development not named on other policies although such insurance can be very expensive, especially where suppliers are importing goods from outside of Malaysia.
To summarise an Employer who is seeking Consequential Loss Insurance will be better off arranging the CAR Insurance for the Contract Works or alternatively an all-encompassing Project Insurance. Consequential Loss Insurance is a generally considered a more certain route to recovery of Employer costs than reliance solely on liquidated damages. Consequential Loss Insurance will be a more accurate reflection of the Employer’s loss risks than liquidated damages and finally in Malaysia the recovery of Liquidated damages from a Contractor still requires the Employer to prove his losses if challenged in the courts, thus regardless of the sum stated in the Contract this does not guarantee the amount will be recovered, which will be dependent upon the extent to which the Contractors is liable under the contract for the Employers costs.
In order for the Employer to secure adequate Consequential Loss Insurance at a competitive rate he should ensure that those responsible for arranging the policy have a full understanding of how the project is to be financed, the programming of the Works and the financial implications of any delay.