Businessowners Property Coverage, Part I
Reviewed June 30, 2016
Form BP 00 03 07 13
Summary: Before there were two Insurance Services Office (ISO) Businessowners property coverage forms—one providing standard, or named perils protection, (BP 00 01 01 97), and the other providing special perils protection, (BP 00 02 12 99). In 2002, there became just one form, BP 00 03, which incorporates special perils coverage, liability coverage, and the policy conditions. Coverage may be changed to named perils by attaching endorsement BP 10 09 07 13. This endorsement is discussed elsewhere; see Businessowners Program Endorsements. The Businessowners conditions and liability coverages are also discussed elsewhere. See Businessowners Program for a discussion of eligibility and the general conditions, and see Businessowners Liability Coverage.
The property section of the Businessowners form offers replacement cost coverage or an actual cash value option. Beyond this, much of the coverage under the forms is similar to that available through ISO's commercial property program (see Building and Personal Property Coverage Form).
The following discussion focuses on the property coverages of form BP 00 03 07 13, with any differences from the earlier special form BP 00 02 12 99 indicated. For conditions governing loss payment, limits of insurance, and definitions, see Businessowners Property Coverage, Part II. Remember that not all insurers immediately adopt new ISO forms; many use earlier editions. Therefore, check carefully in making any coverage determinations.
Topics covered:
Covered property—business personal property
Additional coverages—business income
Exclusions—concurrent language precludes coverage
Eligibility
The Businessowners (BOP) form may be used for several classes of business, including apartment buildings (including residential condominium associations), office buildings (including office condominium associations), and some selected wholesale, mercantile, processing, and service occupancies. The manual rules allow as well for some restaurants—those having limited cooking facilities, some fast food operations, and motels and some storage facilities. For an in-depth discussion, see Businessowners Program.
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.
Analysis
The property coverage form the insuring agreement promises to pay for direct loss or damage to covered property (buildings, business personal property, personal property of others in the named insured's care, custody, or control, and tenants' improvements and betterments). Covered causes of loss depend on the form used: special perils in the BP 00 03 or named perils if the BP 10 09 is attached. The property must be at the premises described in the declarations.
1. Covered Property
Covered Property includes Buildings as described under Paragraph a. below, Business Personal Property as described under Paragraph b. below, or both, depending on whether a Limit Of Insurance is shown in the Declarations for that type of property. Regardless of whether coverage is shown in the Declarations for Buildings, Business Personal Property, or both, there is no coverage for property described under Paragraph 2. Property Not Covered.
a.Buildings, meaning the buildings and structures at the premises described in the Declarations, including:
(1)Completed additions;
(2)Fixtures, including outdoor fixtures;
(3)Permanently installed:
(a)Machinery; and
(b)Equipment;
(4)Your personal property in apartments, rooms or common areas furnished by you as landlord;
(5)Personal property owned by you that is used to maintain or service the buildings or structures or the premises, including:
(a)Fire extinguishing equipment;
(b)Outdoor furniture;
(c)Floor coverings; and
(d)Appliances used for refrigerating, ventilating, cooking, dishwashing or laundering;
(6)If not covered by other insurance:
(a)Additions under construction, alterations and repairs to the buildings or structures;
(b)Materials, equipment, supplies and temporary structures, on or within 100 feet of the described premises, used for making additions, alterations or repairs to the buildings or structures.
Analysis
The wording of the covered property portion of the businessowners form is similar to that of the covered property portion of the Building and Personal Property Coverage Form, (CP 00 10 10 12). There is a difference, however, in that the BOP covers personal property in apartments, rooms, or common areas furnished by the named insured as a landlord. Coverage for personal property in common areas is a broadening of coverage. This provision is absent from the CP 00 10. Remember that the BOP may be used to insure entities such as office buildings with incidental apartment occupancies; the CP 00 10 is designed for a different class of business.
The building property coverage refers to two types of additions: those that are completed and those under construction. Additions under construction are often covered by the builder's insurance; however, once an addition is completed it is covered as part of the described building. For this reason insurance to value is important.
Fixtures are items that are attached to the building and that cannot be removed without affecting the structure. Examples are permanently attached blinds or overhead lighting. Outdoor fixtures are items permanently affixed to the realty, such as flag poles. Permanently installed equipment or machinery may mean much the same as permanently installed fixtures. Think, for example, of a central vacuum system or telecommunications wiring.
Although not explicitly stated in the coverage for buildings, exterior and interior building glass are considered covered property. Accordingly, the limitation on glass and optional coverage for interior glass were deleted from the BP 00 03.
Covered Property—Business Personal Property
b.Business Personal Property located in or on the buildings or structures at the described premises or in the open (or in a vehicle) within 100 feet of the buildings or structures or within 100 feet of the premises described in the Declarations, whichever distance is greater, including:
(1)Property you own that is used in your business;
(2)Property of others that is in your care, custody or control, except as otherwise provided in Loss Payment Property Loss Condition E.6.d.(3)(b);
(3)Tenant's improvements and betterments. Improvements and betterments are fixtures, alterations, installations or additions:
(a)Made a part of the building or structure you occupy but do not own; and
(b)You acquired or made at your expense but cannot legally remove; and
(4)Leased personal property for which you have a contractual responsibility to insure, unless otherwise provided for under Paragraph 1.b.(2).
(5)Exterior building glass, if you are a tenant and no Limit Of Insurance is shown in the Declarations for Building property. The glass must be owned by you or in your care, custody or control.
Analysis
The 2013 revision of the BOP form added "or structures" to where personal property can be located (following "located in or on the buildings"). While this does not impact coverage, ISO added the language to explicitly state that business personal property in structures at the described premises is covered.
Also added in the 2013 edition is language stating that business personal property coverage extends 100 feet from the building or the described premises, whichever is the greater distance. ISO added this language to accommodate tenants' property in multi-occupancy buildings. Often the described premises in these instances would be the tenant's suite number or some other indicator of where the individual office or work space is located, which, if on the fifteenth floor of an office building, the 100-foot radius for business personal property coverage in the open may not be sufficient to provide coverage for property left in a vehicle or deliveries left at the front door of the building.
As noted earlier, the current BOP includes coverage for exterior building glass within the limit for the building. But if the named insured is a tenant, and therefore no limit is shown for the building, then the glass may be covered as business personal property. As will be discussed later, an additional coverage provides for certain expenses related to glass.
The BOP form covers property of others in the insured's care (b.(2); this refers to the form's use for such establishments as dry cleaners or jewelry repair. Loss payment for this property is valued at actual cash value unless the item is subject to a written contract governing the insured's liability. (There is an additional limit, discussed later, for theft of property such as jewelry and furs.).
Tenants' improvements and betterments are included as business personal property, which may be such items as built-in shelving or partitions. There is no requirement that the tenant insured actually install the improvements and betterments. The insured might decide to rent a space because the improvements and betterments that are included save him the expense of installation. Such improvements and betterments have been acquired through the rent being paid and are therefore covered. They must be a part of the building as required by policy language. For example, cabinets or shelving attached to the walls become part of the building while desks and chairs do not.
However, in U.S. Fire Ins. Co. v. Martin, 282 S.E. 2d 2 (Va. 1981), the court ruled that air conditioning compressors were not "acquired" at the tenant's expense because the tenant had not spent money in the original installation.
In the BP 00 03, if the insured business is a tenant and thus no limit for buildings is indicated on the declarations, exterior building glass will be covered as business personal property. The insured must either own the glass, or it must be in the insured's care, custody, or control.
Personal property the insured has leased and has a contractual responsibility to insure is covered as business personal property. For example, it is common to lease sophisticated copying equipment. If the terms of the lease require the insured to insure the equipment and a covered loss occurs, the insured's businessowners policy will respond.
2.Property Not Covered
Covered Property does not include:
a.Aircraft, automobiles, motortrucks and other vehicles subject to motor vehicle registration;
b."Money" or "securities" except as provided in the:
(1)Money And Securities Optional Coverage; or
(2)Employee Dishonesty Optional Coverage;
c.Contraband, or property in the course of illegal transportation or trade;
d.Land (including land on which the property is located), water, growing crops or lawns (other than lawns which are part of a vegetated roof);
e.Outdoor fences, radio or television antennas (including satellite dishes) and their lead-in wiring, masts or towers, signs (other than signs attached to buildings), trees, shrubs or plants (other than trees, shrubs or plants which are part of a vegetated roof), all except as provided in the:
(1)Outdoor Property Coverage Extension; or
(2)Outdoor Signs Optional Coverage;
f.Watercraft (including motors, equipment and accessories) while afloat;
g.Accounts, bills, food stamps, other evidences of debt, accounts receivable or "valuable papers and records"; except as otherwise provided in this policy;
h."Computer(s)" which are permanently installed or designed to be permanently installed in any aircraft, watercraft, motortruck or other vehicle subject to motor vehicle registration. This paragraph does not apply to "computer(s)" while held as "stock";
i."Electronic data", except as provided under Additional Coverages—Electronic Data. This Paragraph i. does not apply to your "stock" of prepackaged software or to "electronic data" which is integrated in and operates or controls the building's elevator, lighting, heating, ventilation, air conditioning or security system; or
j. Animals, unless owned by others and boarded by you, or if owned by you, only as "stock" while inside of buildings.
Analysis
Unlike the earlier BP 00 01 01 97, the current BP 00 03 covers bullion but limits coverage. Money or securities are covered only when the optional coverage for this type of property or for employee dishonesty are selected.
Outdoor signs (other than those attached to buildings, which are covered as building property) are covered under the outdoor property coverage extension and/or the optional coverage for outdoor signs. Outdoor property such as fences, television antennas, or trees are covered under the outdoor property coverage extension.
The 2013 revision made an exception in the outdoor property section for trees, shrubs, lawns, and plants that are part of a vegetated roof. Such property is treated as an insured part of the building, which is a broadening of coverage.
Any illegal or prohibited goods are not covered, nor is land, water, growing crops, or lawns, except lawns that are part of a vegetated roof. Aircraft and motor vehicles subject to registration are not covered. Watercraft while afloat is not covered, so if the insured is working on a boat in dry-dock or in a building, the boat would be covered.
Valuable papers and records and accounts receivable are covered in the coverage extensions (discussed later), but certain items such as food stamps are not covered. Computers that are permanently installed, or are designed to be permanently installed, in aircraft, watercraft, motortrucks, or other vehicles subject to motor vehicle registration are covered only if they are held as stock (a definition added in the BP 00 03 07 02; see Businessowners Property Coverage, Part II). As discussed later, the BP 00 03 covers computers the insured uses in business, as well as those held as stock.
The 2006 edition of the BOP added a new class of property not covered: electronic data. However, some coverage is restored in the additional coverage for electronic data, discussed in the Additional Coverages section of this article.
The 2013 edition was revised to make an exception for electronic data that is integrated in and controls or operates a building's air conditioning, security, heating, ventilation, lighting, or elevator systems. This electronic data would be treated as covered property, subject to the policy's full limits. This represents a broadening of coverage.
The 2010 form added animals to the list of noncovered items to exclude animals other than those owned by the insured that are stock inside buildings or are boarded by the insured. A limitation, to be discussed later, was also added to further limit coverage for animals. This change represents a reduction in coverage.
3.Covered Causes Of Loss
Direct physical loss unless the loss is excluded or limited under Section I – Property.
Analysis
The BP 00 03 provides special perils coverage. If the insured wishes coverage on a named perils basis, endorsement BP 10 09, Named Perils, may be attached. Coverage for loss in the BP 00 03 is otherwise restricted through limitations or exclusions.
This provision was reworded in the 2013 edition, which deleted the phrase "risk of" before "direct physical loss." The change does not impact coverage but enforces the intent of the form to provide coverage for direct physical loss and not a broader interpretation of coverage.
4.Limitations
a.We will not pay for loss of or damage to:
(1)Steam boilers, steam pipes, steam engines or steam turbines caused by or resulting from any condition or event inside such equipment. But we will pay for loss of or damage to such equipment caused by or resulting from an explosion of gases or fuel within the furnace of any fired vessel or within the flues or passages through which the gases of combustion pass.
(2)Hot water boilers or other water heating equipment caused by or resulting from any condition or event inside such boilers or equipment, other than an explosion.
(3)Property that is missing, where the only evidence of the loss or damage is a shortage disclosed on taking inventory, or other instances where there is no physical evidence to show what happened to the property. This limitation does not apply to the Optional Coverage for Money and Securities.
(4)Property that has been transferred to a person or to a place outside the described premises on the basis of unauthorized instructions.
(5)The interior of any building or structure or to personal property in the building or structure, caused by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless:
(a)The building or structure first sustains damage by a Covered Cause of Loss to the roof or walls through which the rain, snow, sleet, ice, sand or dust enters; or
(b)The loss or damage is caused by or results from thawing of snow, sleet or ice on the building or structure.
(6)Lawns, trees, shrubs or plants which are part of a vegetated roof, caused by or resulting from:
(a)Dampness or dryness of atmosphere or of soil supporting the vegetation;
(b)Changes in or extremes of temperature;
(c)Disease;
(d)Frost or hail; or
(e)Rain, snow, ice or sleet.
b.We will not pay for loss of or damage to the following types of property unless caused by the "specified causes of loss" or building glass breakage:
(1) Animals, and then only if they are killed or their destruction is made necessary.
(2)Fragile articles such as glassware, statuary, marble, chinaware and porcelain, if broken.
(a)Glass that is part of the exterior or interior of a building or structure;
(b)Containers of property held for sale; or
(c)Photographic or scientific instrument lenses.
c.For loss or damage by theft, the following types of property are covered only up to the limits shown (unless a higher Limit Of Insurance is shown in the Declarations):
(1)$2,500 for furs, fur garments and garments trimmed with fur.
(2)$2,500 for jewelry, watches, watch movements, jewels, pearls, precious and semi-precious stones, bullion, gold, silver, platinum and other precious alloys or metals. This limit does not apply to jewelry and watches work $100 or less per item.
(3)$2,500 for patterns, dies, molds and forms.
Analysis
Damage to steam boilers and similar objects when the damage is caused by a condition inside the equipment is excluded. But damage to such equipment resulting from explosion of gases or fuel within the furnace or flues is covered. (The insured may purchase the optional coverage for equipment breakdown, which provides coverage for loss caused by an accident to a boiler or machinery. This coverage is discussed later in the article.) Similarly, damage to hot water boilers or heaters is excluded if caused by a condition other than explosion inside the objects.
There is no coverage for missing property when there is no physical evidence to show what happened to it. Physical evidence is open to interpretation. For example, if the insured enters the premises in the morning to find all desks have been stolen, the "physical evidence" is that in the evening they were seen on the premises but not in the morning. An inventory in this case would be unnecessary. However, if the insured, upon taking year-end inventory, found he was missing a case of instruments, then there is no coverage. The wording of this limitation has been changed to convey that there is no coverage when the only evidence of loss is the discrepancy between inventory and an actual count of items.
Limitation a.(5) is similar to that in the CP 10 30 10 12 (C.c.(1) and (2)). There is no coverage for the interior of a building or structure caused by rain, snow, sleet, ice, sand, or dust unless the building or structure first sustains damage from a covered cause of loss. The 2013 edition of the form added personal property in the building or structure to this limitation, which is a reduction of coverage. The limitation does not apply to damage to the interior of the building or structure or personal property inside the building or structure caused by thawing snow, sleet, or ice on the building or structure. This change limits coverage in more recent editions of the form since there was no such requirement in the BP 00 02 12 99.
The limitation (4.b.) of $500 per loss, $100 per pane that applied to interior glass or an outdoor sign in special form BP 00 02 12 99 was eliminated from the BP 00 03 since glass is treated as covered property.
Loss or damage to fragile articles such as glassware is excluded unless covered by a specified cause of loss, a term that is defined at the end of the form. For example, cracking is an excluded cause of loss, but fire is not. So if the fragile articles broke as a result of fire, there is coverage.
The 2013 revision added a section stating that the form will not pay for loss or damage to lawns, trees, shrubs, or plants that are part of a vegetated roof if the loss is caused by or results from dampness or dryness of atmosphere or soil supporting the vegetation, changes or extremes in temperature, disease, frost or hail, or rain, snow, ice, or sleet.
Special limits are placed on certain types of valuable property such as jewelry and furs. Jewelry or watches worth $100 or less are not limited as to theft coverage.
For loss or damage by theft, the 2013 edition added a provision stating that a higher limit of insurance can be obtained by an entry in the declarations, which is a new coverage option.
The following additional coverages are not in the order in which they appear in the form itself. The reason is that many of the additional coverages pertain to business income, and for convenience these are grouped together following the discussion of the other additional coverages.
5.Additional Coverages
a.Debris Removal
(1)Subject to Paragraphs (2), (3) and (4), we will pay your expense to remove debris of Covered Property and other debris that is on the described premises, when such debris is caused by or resulting from a Covered Cause of Loss that occurs during the policy period. The expenses will be paid only if they are reported to us in writing within 180 days of the date of direct physical loss or damage.
(2)Debris Removal does not apply to costs to:
(a)Remove debris of property of yours that is not insured under this policy, or property in your possession that not Covered Property;
(b)Remove debris of property owned by or leased to the landlord of the building where your described premises are located, unless you have a contractual responsibility to insure such property and it is insured under this policy;
(c)Remove any property that is Property Not Covered, including property addressed under the Outdoor Property Coverage Extension;
(d)Remove property of others of a type that would not be Covered Property under this policy;
(e)Remove deposits of mud or earth from the grounds of the described premises;
(f)Extract "pollutants" from land or water; or
(g)Remove, restore or replace polluted land or water.
(3)Subject to the exceptions in Paragraph (4), the following provisions apply:
(a)The most that we will pay for the total of direct physical loss or damage plus debris removal expense is the Limit of Insurance applicable Covered Property that has sustained loss or damage.
(b)Subject to Paragraph (3)(a) above, the amount we will pay for debris removal expense is limited to 25 percent of the sum of the deductible plus the amount that we pay for direct physical loss or damage to the Covered Property that has sustained loss or damage. However, if no Covered Property has sustained direct physical loss or damage, the most we will pay for removal of debris of other property (if such removal is covered under this Additional Coverage) is $5,000 at each location.
(4)We will pay up to an additional $25,000 for debris removal expense, for each location, in any one occurrence of physical loss or damage to covered Property, if one or both of the following circumstances apply:
(a)The total of the actual debris removal expense plus the amount we pay for direct physical loss or damage exceeds the Limit of Insurance on the Covered Property that has sustained loss or damage.
(b)The actual debris removal expense exceeds 25 percent of the sum of the deductible plus the amount that we pay for direct physical loss or damage to the Covered Property that has sustained loss or damage.
Therefore, if Paragraphs (4)(a) and/or (4)(b) apply, our total payment for direct physical loss or damage and debris removal expense may reach but will never exceed the Limit of Insurance on the covered Property that has sustained loss or damage, plus $25,000.
(5)Examples
Example #1
Limit of Insurance$90,000
Amount of Deductible$ 500
Amount of Loss$50,000
Amount of Loss Payable$49,500
($50,000 – $500)
Debris Removal Expense$10,000
Debris Removal Expense Payable$10,000
($10,000 is 20 percent of $50,000)
The debris removal expense is less than 25% of the sum of the loss payable plus the deductible. The sum of the loss payable and the debris removal expense ($49,500 + $10,000 = $59,500) is less than the Limit of Insurance. Therefore the full amount of debris removal expense is payable in accordance with the terms of Paragraph (3).
Example #2
Limit of Insurance$90,000
Amount of Deductible$ 500
Amount of Loss$80,000
Amount of Loss Payable$79,500
($80,000 – $500)
Debris Removal Expense$40,000
Debris Removal Expense Payable
Basic Amount$10,500
Additional Amount$25,000
The basic amount payable for debris removal expense under the terms of Paragraph (3) is calculated as follows: $80,000 ($79,500 + $500) x .25 = $20,000; capped at $10,500). The cap applies because the sum of the loss payable $79,500 and the basic amount payable for debris removal expense ($10,500) cannot exceed the Limit of Insurance $90,000).
The additional amount payable for debris removal expense is provided in accordance with the terms of Paragraph (4), because the debris removal expense ($40,000) exceeds 25% of the loss payable plus the deductible ($40,000 is 50% of $80,000), and because the sum of the loss payable and debris removal expense ($79,500 + $40,000 = $119,500) would exceed the Limit of Insurance ($90,000). The additional amount of covered debris removal expense is $25,000, the maximum payable under Paragraph (4). Thus the total payable for debris removal expense in this example is $35,500; $4,500 of the debris removal expense is not covered.
Analysis
The debris removal additional coverage includes examples as to how the percentage and additional $25,000 are to be applied. The expenses must be reported in writing to the insurer within 180 days of the date of loss in order to be paid.
The 2013 form revision increased the debris removal additional limit of insurance from $10,000 to $25,000.
In the 2013 edition of the form, coverage was broadened to include the removal of debris of property of others. With this addition, language was added to specify what debris removal does not include: policyholder's property that is not insured under the policy or property in the insured's possession that is not covered; property leased or owned by the landlord, unless the tenant is contractually obligated to provide insurance, and the property is insured under the tenant's policy; property that is considered "property not covered" under the policy; property of others that would not be considered covered property under the form; and deposits of mud or earth from the grounds of the described premises.
b.Preservation Of Property
If it is necessary to move Covered Property from the described premises to preserve it from loss or damage by a Covered Cause of Loss, we will pay for any direct physical loss of or damage to that property:
(1)While it is being moved or while temporarily stored at another location; and
(2)Only if the loss or damage occurs within thirty days after the property is first moved.
c.Fire Department Service Charge
When the fire department is called to save or protect Covered Property from a Covered Cause of Loss, we will pay up to $2,500 for service at each premises described in the Declarations, unless a different amount is shown in the Declarations. Such limit is the most we will pay regardless of the number of responding fire departments or fire units, and regardless of the number or type of services performed.
This Additional Coverage applies to your liability for fire department service charges:
(1)Assumed by contract or agreement prior to loss; or
(2)Required by local ordinance.
Analysis
If covered property must be moved to protect it from a covered cause of loss—for example, a fire threatens covered stock—the property is covered while being moved or while temporarily at another location. Coverage applies for up to thirty days and protects from any cause of loss.
The 2013 form added language to the fire department service charge additional coverage to clarify that the coverage limit applies to each premises described in the declarations and applies regardless of the number of responders or the numbers or types of services performed.
The fire department service charge increased to $2,500 in the 2006 form with the option to choose a different limit, which must be shown in the declarations.
d.Collapse
The coverage provided under this Additional Coverage – Collapse applies only to an abrupt collapse as described and limited in Paragraphs d.(1) through d.(7).
(1)For the purpose of this Additional Coverage – Collapse, abrupt collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose.
(2)We will pay for direct physical loss or damage to Covered Property, caused by abrupt collapse of a building or any part of a building insured under this policy or that contains Covered Property insured under this policy, if such collapse is caused by one or more of the following:
(a)Building decay that is hidden from view, unless the presence of such decay is known to an insured prior to collapse;
(b)Insect or vermin damage that is hidden from view, unless the presence of such damage is known to an insured prior to collapse;
(c)Use of defective material or methods in construction, remodeling or renovation if the abrupt collapse occurs during the course of the construction, remodeling or renovation.
(d)Use of defective material or methods in construction, remodeling or renovation if the abrupt collapse occurs after the construction, remodeling or renovation is complete, but only if the collapse is caused in part by:
(i)A cause of loss listed in Paragraph (2)(a) or (2)(b);
(ii)One or more of the "specified causes of loss";
(iii)Breakage of building glass;
(iv)Weight of people or personal property; or
(v)Weight of rain that collects on a roof.
(3)This Additional Coverage – Collapse does not apply to:
(a)A building or any part of a building that is in danger of falling down or caving in;
(b)A part of a building that is standing, even if it has separated from another part of the building; or
(c)A building that is standing or any part of a building that is standing, even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.
(4)With respect to the following property:
(a)Awnings;
(b)Gutters and downspouts;
(c)Yard fixtures;
(d)Outdoor swimming pools;
(e)Piers, wharves and docks;
(f)Beach or diving platforms or appurtenances;
(g)Retaining walls; and
(h)Walks, roadways and other paved surfaces;
if an abrupt collapse is caused by a cause of loss listed in Paragraphs (2)(a) through (2)(d), we will pay for loss or damage to that property only if such loss or damage is a direct result of the abrupt collapse of a building insured under this policy and the property is Covered Property under this policy.
(5)If personal property abruptly falls down or caves in and such collapse is not the result of abrupt collapse of a building, we will pay for loss or damage to Covered Property caused by such collapse of personal property only if:
(a)The collapse of personal property was caused by a cause of loss listed in Paragraphs (2)(a) through (2)(d) of this Additional Coverage;
(b)The personal property which collapses is inside a building; and
(c)The property which collapses is not of a kind listed in Paragraph (4), regardless of whether that kind of property is considered to be personal property or real property.
The coverage stated in this Paragraph (5) does not apply to personal property if marring and/or scratching is the only damage to that personal property caused by the collapse.
Collapse of personal property does not mean cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.
(6)This Additional Coverage – Collapse does not apply to personal property that has not abruptly fallen down or caved in, even if the personal property shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.
(7)This Additional coverage – Collapse, will not increase the Limits of Insurance provided in this policy.
(8) The term Covered Cause of Loss includes the Additional Coverage – Collapse as described and limited in Paragraphs d.(1) through d.(7).
Analysis
Collapse was an additional coverage in the BP 00 02 12 99 (there is no collapse coverage when the Named Perils endorsement, BP 10 09, is attached), but the wording of the current form includes a definition of collapse. Before the wording was changed, it was possible to argue that structural impairment could constitute a state of collapse and to find coverage in jurisdictions applying a liberal interpretation. Now, however, the inclusion of this definition has effectively stopped that argument. The danger of imminent collapse does not trigger coverage.
The 2010 form made changes to this additional coverage to emphasize that, for coverage to apply, the collapse must be abrupt.
There is coverage if collapse of a covered building occurs in the course of remodeling, renovation, or construction because of defective material or methods. There is also coverage if the collapse occurs once the construction, remodeling, or renovation is complete, even if use of defective materials contributes, provided the loss is caused in part by a cause of collapse listed in (2)(a) through (2)(d). Thus, if defective materials—such as defective shingles—contributed to a collapse caused by hidden decay, the direct damage is covered.
The wording of the hidden decay and insect or vermin damage covered causes of collapse clarifies that once such damage is known to an insured (any insured, not just the named insured), then there is no coverage since presumably the insured knew of the damage but failed to protect the property.
Certain items, such as awnings and gutters, are not covered for damage caused by collapse unless the damage is a result of collapse of an insured building, and the items are themselves covered property.
Personal property—for example, tenant's improvements such as shelving and partitions—is covered for collapse only if the property is inside a building; the collapse was caused by one of the causes of loss in (2)(a) through (2)(d); and the collapsed property is not one of the items listed as not covered such as awnings or gutters. But if the only damage from collapse to personal property is marring or scratching, then there is no coverage.
The 2006 form broadened coverage by adding a building or any part of a building that contains covered property insured by the policy as covered by the collapse additional coverage.
e.Water Damage, Other Liquids, Powder Or Molten Material Damage
If loss or damage caused by or resulting from covered water or other liquid, powder or molten material occurs, we will also pay the cost to tear out and replace any part of the building or structure to repair damage to the system or appliance from which the water or other substance escapes.
We will not pay the cost to repair any defect that caused the loss or damage; but we will pay the cost to repair or replace damaged parts of fire extinguishing equipment if the damage:
(1)Results in discharge of any substance from an automatic fire protection system; or
(2)Is directly caused by freezing.
Analysis
Loss covered by this additional coverage includes any cost to tear out and replace any part of a building or structure to repair the system or appliance from which the material escaped. If fire extinguishing equipment is damaged, resulting in the equipment's discharge, or if the damage is directly caused by freezing, the insurer will pay to repair or replace the damaged parts of the fire extinguishing equipment.
This coverage is not included when the Named Perils endorsement, BP 10 09, is attached.
h. Pollutant Clean-up And Removal
We will pay your expense to extract "pollutants" from land or water at the described premises if the discharge, dispersal, seepage, migration, release or escape of the "pollutants" is caused by or results from a Covered Cause of Loss that occurs during the policy period. The expenses will be paid only if they are reported to us in writing within 180 days of the date on which the Covered Cause of Loss occurs.
This Additional Coverage does not apply to costs to test for, monitor or assess the existence, concentration or effects of "pollutants". But we will pay for testing which is performed in the course of extracting the "pollutants" from the land or water.
The most we will pay for each location under this Additional Coverage is $10,000 for the sum of all such expenses arising out of Covered Causes of Loss occurring during each separate 12-month period of this policy.
Analysis
Coverage for cleanup of pollution is limited to $10,000 for all expenses to extract pollutants (a defined term) from land or water if the release of the pollutants is caused by a covered cause of loss and occurs during the policy period. The expenses must be reported in writing to the insurer within one hundred and eighty days of the earlier of the date of the loss or damage, or the end of the policy period. Note that the $10,000 is an aggregate amount for each separate twelve month period.
The 2006 form specified that the costs of testing for, monitoring, or assessing pollutants are not covered, but the cost for testing performed when pollutants are extracted is covered.
j.Money Orders And "Counterfeit Money"
We will pay for loss resulting directly from your having accepted in good faith, in exchange for merchandise, "money" or services:
(1)Money orders issued by any post office, express company or bank that are not paid upon presentation; or
(2)"Counterfeit money" that is acquired during the regular course of business.
The most we will pay for any loss under this Additional Coverage is $1,000.
k.Forgery And Alteration
(1)We will pay for loss resulting directly from forgery or alteration of, any check, draft, promissory note, bill of exchange or similar written promise of payment in "money", that you or your agent has issued, or that was issued by someone who impersonates you or your agent.
(2)If you are sued for refusing to pay the check, draft, promissory note, bill of exchange or similar written promise of payment in "money", on the basis that it has been forged or altered, and you have our written consent to defend against the suit, we will pay for any reasonable legal expenses that you incur in that defense.
(3)For the purpose of this coverage, check includes a substitute check as defined in the Check Clearing for the 21st Century Act, and will be treated the same as the original it replaced.
(4)The most we will pay for any loss, including legal expenses, under this Additional Coverage is $2,500, unless a higher Limit of Insurance is shown in the Declarations.
Analysis
In the earlier forms, coverage j. was limited to United States or Canadian money orders or counterfeit currency. Now, there is no territorial limit so that counterfeit money or money orders from any country are recognized. The limit for this coverage is $1,000, although a greater amount of coverage may be purchased.
Coverage for payment for loss resulting from a forged or altered check is limited to $2,500, and in the current form this limit may be increased.
The 2006 form clarified that substitute checks, as defined in the Check Clearing for the 21st Century Act, are considered checks under this additional coverage.
l. Increased Cost Of Construction
(1)This Additional Coverage applies only to buildings insured on a replacement cost basis.
(2)In the event of damage by a Covered Cause of Loss to a building that is Covered Property, we will pay the increased costs incurred to comply with the minimum standards of an ordinance or law in the course of repair, rebuilding or replacement of damaged parts of that property, subject to the limitations stated in Paragraphs (3) through (9) of this Additional Coverage.
(3)The ordinance or law referred to in Paragraph (2) of this Additional Coverage is an ordinance or law that regulates the construction or repair of buildings or establishes zoning or land use requirements at the described premises, and is in force at the time of loss.
(4)Under this Additional Coverage, we will not pay any costs due to an ordinance or law that:
(a)You were required to comply with before the loss, even when the building was undamaged; and
(b)You failed to comply with.
(5)Under this Additional Coverage, we will not pay for:
(a)The enforcement of or compliance with any ordinance or law which requires demolition, repair, replacement, reconstruction, remodeling or remediation of property due to contamination by "pollutants" or due to the presence, growth, proliferation, spread or any activity of "fungi", wet rot or dry rot; or
(b)Any costs associated with the enforcement of or compliance with an ordinance or law which requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the effects of "pollutants", "fungi", wet rot or dry rot.
(6)The most we will pay under this Additional Coverage, for each described building insured under Section I – Property, is $10,000. If a damaged building(s) is covered under a blanket Limit of Insurance which applies to more than one building or item of property, then the most we will pay under this Additional Coverage, for each damaged building, is $10,000.
The amount payable under this Additional Coverage is additional insurance.
(7)With respect to this Additional Coverage:
(a)We will not pay for the Increased Cost of Construction:
(i)Until the property is actually repaired or replaced, at the same or another premises; and
(ii)Unless the repair or replacement is made as soon as reasonably possible after the loss or damage, not to exceed two years. We may extend this period in writing during the two years.
(b)If the building is repaired or replaced at the same premises, of if you elect to rebuild at another premises, the most we will pay for the Increased Cost of Construction is the increased cost of construction at the same premises.
(c)If the ordinance or law requires relocation to another premises, the most we will pay for the Increased Cost of Construction is the increased cost of construction at the new premises.
(8)This Additional Coverage is not subject to the terms of the Ordinance or Law Exclusion, to the extent that such Exclusion would conflict with the provisions of this Additional Coverage.
(9)The costs addressed in the Loss Payment Property Loss Condition in this Coverage Form do not include the increased cost attributable to enforcement of an ordinance or law. The amount payable under this Additional Coverage, as stated in l.(6) of this Additional Coverage, is not subject to such limitation.
Analysis
There is a limited amount ($10,000, increased from $5,000 in earlier forms) of ordinance or law coverage—increased cost of construction. However, this coverage applies only to buildings insured on a replacement cost basis. Further, it cannot be used to pay any costs after a loss for an ordinance or law that the insured was required to comply with before the loss but failed to. The ordinance or law exclusion is still in place, although the provision states that this additional coverage is not subject to the terms of the exclusion to the extent that the exclusion conflicts with the additional coverage.
If the damaged building is covered under a blanket amount of insurance, the $10,000 applies separately to each damaged building.
This additional coverage applies to damaged property only—hence the reference to "repair, rebuilding, or replacement of damaged parts of that property"—whereas if endorsement BP 04 46 07 13, Ordinance or Law Coverage, is purchased, the increased cost of construction applies to both damaged and undamaged property.
The 2013 form revision added language to make it clear that the form provides coverage for the increased costs to comply with the minimum standards of an ordinance or law.
n.Glass Expenses
(1)We will pay for expenses incurred to put up temporary plates or board up openings if repair or replacement of damaged glass is delayed.
(2)We will pay for expenses incurred to remove or replace obstructions when repairing or replacing glass that is part of a building. This does not include removing or replacing window displays.
o. Fire Extinguisher Systems Recharge Expense
(1)We will pay:
(a)The cost of recharging or replacing, whichever is less, your fire extinguishers and fire extinguishing systems (including hydrostatic testing if needed) if they are discharged on or within 100 feet of the described premises; and
(b)For loss or damage to Covered Property if such loss or damage is the result of an accidental discharge of chemicals from a fire extinguisher or a fire extinguishing system.
(2)No coverage will apply if the fire extinguishing system is discharged during installation or testing.
(3)The most we will pay under this Additional coverage is $5,000 in any one occurrence.
Analysis
Coverage for building glass, both interior and exterior, is treated as covered property (building property for owner-occupants and business personal property for tenants). Coverage n. pays for expenses to put up temporary plates or board up openings if repair or replacement is delayed. Payment is also included to remove or replace obstructions when repairing glass that is part of a building. However, this coverage does not pay for removing or replacing window displays.
Additional coverage o. responds to the costs to recharge or replace fire extinguishing equipment. The coverage also pays for loss or damage to covered property caused by accidental discharge of the fire extinguishing equipment.
(1)Subject to the provisions of this Additional Coverage, we will pay for the cost to replace or restore "electronic data" which has been destroyed or corrupted by a Covered Cause of Loss. To the extent that "electronic data" is not replaced or restored, the loss will be valued at the cost of replacement of the media on which the "electronic data" was stored, with blank media of substantially identical type.
(2)The Covered Causes of Loss applicable to Business Personal Property include a computer virus, harmful code or similar instruction introduced into or enacted on a computer system (including "electronic data") or a network to which it is connected, designed to damage or destroy any part of the system or disrupt its normal operation. But there is no coverage for loss or damage caused by or resulting from manipulation of a computer system (including "electronic data") by any employee, including a temporary or leased employee, or by an entity retained by you, or for you, to inspect, design, install, modify, maintain, repair or replace that system.
(3)The most we will pay under this Additional Coverage – Electronic Data for all loss or damage sustained in any one policy year, regardless of the number of occurrences of loss or damage or the number of premises, locations or computer systems involved, is $10,000, unless a higher Limit of Insurance is shown in the Declarations. If loss payment on the first occurrence does not exhaust this amount, then the balance is available for subsequent loss or damage sustained in, but not after, that policy year. With respect to an occurrence which begins in one policy year and continues or results in additional loss or damage in a subsequent policy year(s), all loss or damage is deemed to be sustained in the policy year in which the occurrence began.
(4)This Additional Coverage does not apply to your "stock" of prepackaged software, or to "electronic data" which is integrated in and operates or controls a building's elevator, lighting, heating, ventilation, air conditioning or security system.
Analysis
ISO introduced the electronic data additional coverage in the 2006 BP 00 03 01 06. The coverage provides up to an annual aggregate of $10,000. The cost to replace or restore electronic data is covered if the data is corrupted or destroyed by a covered cause of loss. The same covered causes of loss apply to this additional coverage as apply to business personal property.
Electronic data is a defined term on the form, meaning "information, facts or computer programs stored as or on, created or used on, or transmitted to or from computer software (including systems and applications software), on hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices or any other repositories of computer software which are used with electronically controlled equipment. The term computer programs, referred to in the foregoing description of electronic data, means a set of related electronic instructions which direct the operations and functions of a 'computer' or device connected to it, which enable the 'computer' or device to receive, process, store, retrieve or send data."
The 2013 revision added paragraph (4), which emphasizes that the electronic data additional coverage does not apply to electronic data that is integrated into or operates or controls the building's elevator, lighting, heating, ventilation, air conditioning, or security systems. These items are covered property under the policy and are subject to the full policy limits. Also, the insured's stock of prepackaged software is excepted under property not covered and is not subject to this additional coverage.
q.Interruption Of Computer Operations
(1)Subject to all provisions of this Additional Coverage, you may extend the insurance that applies to Business Income and Extra Expense to apply to a suspension of "operations" caused by an interruption in computer operations due to destruction or corruption of "electronic data" due to a Covered Cause of Loss.
(2)With respect to the coverage provided under this Additional Coverage, the Covered Causes of Loss are subject to the following:
(a)Coverage under this Additional Coverage – Interruption Of Computer Operations is limited to the "specified causes of loss" and Collapse.
(b)If the Businessowners Coverage Form is endorsed to add a Covered Cause of Loss, the additional Covered Cause of Loss does not apply to the coverage provided under this Additional Coverage.
(c)The Covered Causes of Loss include a computer virus, harmful code or similar instruction introduced into or enacted on a computer system (including "electronic data") or a network to which it is connected, designed to damage or destroy any part of the system or disrupt its normal operation. But there is no coverage for an interruption related to manipulation of a computer system (including "electronic data") by any employee, including a temporary or leased employee, or by an entity retained by you, or for you, to inspect, design, install, modify, maintain, repair or replace that system.
(3)The most we will pay under this Additional Coverage – Interruption Of Computer Operations for all loss sustained and expense incurred in any one policy year, regardless of the number of interruptions or the number of premises, locations or computer systems involved, is $10,000 unless a higher Limit of Insurance is shown in the Declarations. If loss payment relating to the first interruption does not exhaust this amount, then the balance is available for loss or expense sustained or incurred as a result of subsequent interruptions in that policy year. A balance remaining at the end of a policy year does not increase the amount of insurance in the next policy year. With respect to any interruption which begins in one policy year and continues or results in additional loss or expense in a subsequent policy year(s), all loss and expense is deemed to be sustained or incurred in the policy year in which the interruption began.
(4)This Additional Coverage – Interruption Of Computer Operations does not apply to loss sustained or expense incurred after the end of the "period of restoration", even if the amount of insurance stated in (3) above has not been exhausted.
(5)Coverage for Business Income does not apply when a suspension of "operations" is caused by destruction or corruption of "electronic data", or any loss or damage to "electronic data", except as provided under Paragraphs (1) through (4) of this Additional Coverage.
(6)Coverage for Extra Expense does not apply when action is taken to avoid or minimize a suspension of "operations" caused by destruction or corruption of "electronic data", or any loss or damage to "electronic data", except as provided under Paragraphs (1) through (4) of this Additional Coverage.
(7)This Additional Coverage does not apply when loss or damage to "electronic data" involves only "electronic data" which is integrated in and operates or controls a building's elevator, lighting, heating, ventilation, air conditioning or security system.
Analysis
ISO broadened coverage in the BOP program when it introduced the interruption of computer operations additional coverage in the 2006 edition of the BP 00 03. The additional coverage provides business income and/or extra expense coverage for losses incurred due to the suspension of operations. The suspension must be caused by an interruption in computer operations, which in turn must be caused by corruption or destruction of electronic data (a defined term). The annual aggregate limit is $10,000, which may be increased on the declarations page.
The 2013 revision added paragraph (7), which emphasizes that the electronic data additional coverage does not apply to electronic data that is integrated into or operates or controls the building's elevator, lighting, heating, ventilation, air conditioning, or security systems. These items are covered property under the policy and are subject to the full policy limits
(1)The coverage described in Paragraphs r.(2) and r.(6) only applies when the "fungi", wet rot or dry rot are the result of a "specified cause of loss" other than fire or lightning that occurs during the policy period and only if all reasonable means were used to save and preserve the property from further damage at the time of and after that occurrence.
This Additional Coverage does not apply to lawns, trees, shrubs or plants which are part of a vegetated roof.
(2)We will pay for loss or damage by "fungi", wet rot or dry rot. As used in this Limited Coverage, the term loss or damage means:
(a)Direct physical loss or damage to Covered Property caused by "fungi", wet or dry rot or bacteria, including the cost of removal of the "fungi", wet rot or dry rot;
(b)The cost to tear out and replace any part of the building or other property as needed to gain access to the "fungi", wet rot or dry rot; and
(c)The cost of testing performed after removal, repair, replacement or restoration of the damaged property is completed, provided there is a reason to believe that "fungi", wet rot or dry rot is present.
(3)The coverage described under this Limited Coverage is limited to $15,000. Regardless of the number of claims, this limit is the most we will pay for the total of all loss or damage arising out of all occurrences of "specified causes of loss" (other than fire or lightning) which take place in a 12-month period (starting with the beginning of the present annual policy period). With respect to a particular occurrence of loss which results in "fungi", wet rot or dry rot, we will not pay more than the total of $15,000 even if the "fungi", wet rot or dry rot continues to be present or active, or recurs, in a later policy period.
(4)The coverage provided under this Limited Coverage does not increase the applicable Limit of Insurance on any Covered Property. If a particular occurrence results in loss or damage by "fungi", wet rot or dry rot, and other loss or damage, we will not pay more, for the total of all loss or damage, than the applicable Limit of Insurance on the affected Covered Property. If there is covered loss or damage to Covered Property, not caused by "fungi", wet rot or dry rot, loss payment will not be limited by the terms of this Limited Coverage, except to the extent that "fungi", wet or dry rot or bacteria causes an increase in the loss. Any such increase in the loss will be subject to the terms of this Limited Coverage.
(5)The terms of this Limited Coverage do not increase or reduce the coverage provided under the Water Damage, Other Liquids, Powder Or Molten Material Damage or Collapse Additional Coverages.
(6)The following applies only if Business Income and/or Extra Expense Coverage applies to the described premises and only if the suspension of "operations" satisfies all the terms and conditions of the applicable Business Income and/or Extra Expense Additional Coverage.
(a)If the loss which resulted in "fungi", wet or dry rot or bacteria does not in itself necessitate a suspension of "operations", but such suspension is necessary due to loss or damage to property caused by "fungi", wet rot or dry rot, then our payment under the Business Income and/or Extra Expense Additional Coverages is limited to the amount of loss and/or expense sustained in a period of not more than 30 days. The days need not be consecutive.
(b)If a covered suspension of "operations" was caused by loss or damage other than "fungi", wet rot or dry rot, but remediation of "fungi", wet rot or dry rot prolongs the "period of restoration", we will pay for loss and/or expense sustained during the delay (regardless of when such a delay occurs during the "period of restoration"), but such coverage is limited to 30 days. The days need not be consecutive.
Analysis
ISO incorporated the provisions of endorsement BP 05 76 01 10, Limited Fungi Coverage, into the BOP form. This form was previously titled Limited Fungi or Bacteria Coverage. With the introduction of a new exclusion for Virus or Bacteria, the word bacteria has been removed from this additional coverage.
The 2013 edition of the form added a statement that the coverage does not apply to lawns, trees, shrubs, or plants that part of a vegetated roof. These types of plants were excepted from the property not covered section.
The fungi, wet rot, or dry rot must result from a specified cause of loss, other than fire or lightning, in order for this additional coverage to apply. The coverage provides up to $15,000 (that does not increase policy limits) for loss or damage caused by fungi or wet or dry rot.
The business income/extra expense portion of the additional coverage also applies if business income and/or extra expense applies to the described premises. Coverage is provided if fungi or wet or dry rot loss or damage requires a suspension of operations or if remediation of fungi, wet rot, or dry rot loss or damage prolongs the period of restoration.
Additional Coverage—Business Income
f.Business Income
(1)Business Income
(a)We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your "operations" during the "period of restoration". The suspension must be caused by direct physical loss of or damage to property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss. With respect to loss of or damage to personal property in the open or personal property in a vehicle, the described premises include the area within 100 feet of such premises.
With respect to the requirements set forth in the preceding paragraph, if you occupy only part of a building, your premises means:
(i)The portion of the building which you rent, lease or occupy;
(ii)The area within 100 feet of the building or within 100 feet of the premises described in the Declarations, whichever distance is greater (with respect to loss of or damage to personal property in the open or personal property in a vehicle); and
(iii)Any area within the building at the described premises, if that area services, or is used to gain access to, the portion of the building which you rent, own or occupy.
(b)We will only pay for loss of Business Income that you sustain during the "period of restoration" and that occurs within twelve consecutive months after the date of direct physical loss or damage. We will only pay for ordinary payroll expenses for sixty days following the date of direct physical loss or damage unless a greater number of days is shown in the Declarations.
(i)Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred if no physical loss or damage had occurred, but not including any Net Income that would likely have been earned as a result of an increase in the volume of business due to favorable business conditions caused by the impact of the Covered Cause of Loss on customers or on other businesses; and
(ii)Continuing normal operating expenses incurred, including payroll.
(d)Ordinary payroll expenses:
(i)Means payroll expenses for all your employees except:
i. Officers;
ii. Executives;
iii. Department Managers;
iv. Employees under contract; and
v. Additional Exemptions shown in the Declarations as:
§Job Classifications; or
§Employees.
(ii)Ordinary payroll expenses include:
i. Payroll;
ii. Employee benefits, if directly related to payroll;
iii. FICA payments you pay;
iv. Union dues you pay; and
v. Workers' compensation premiums.
Analysis
Business income coverage is triggered by physical loss or damage, from a covered cause of loss, to property at the described premises. This loss must result in a suspension (defined within the coverage) of the business's operations—that is, the business activities—during the period of restoration. The period of restoration begins seventy-two hours after the time of the direct physical loss or damage. Thus, there is a time deductible.
If the insured business is a tenant occupying only a portion of a building, the premises includes the portion of the building the business rents, leases, or occupies, and any area within the building or at the described premises used to service or gain access to the described premises. For example, if the insured business is located within an enclosed mall, the interior of the mall that is used to gain access to the business is part of the premises.
The 2013 form revision added provision f. (1)(a)(ii) stating that premises also means the area within 100 feet of the building or within 100 feet of the premises described in the declarations, whichever distance is greater, with respect to loss or damage to personal property in the open or personal property in a vehicle. Often the described premises in these instances would be the tenant's suite number or some other indicator of where the individual office or work space is located, which, if on the fifteenth floor of an office building, the 100-foot radius for business personal property coverage in the open may not be sufficient to provide coverage for property left in a vehicle or deliveries left at the front door of the building.
Business income means net profit or loss (before income taxes) the business would have earned or incurred had there been no direct physical loss or damage. Business income does not include any windfall profits that the business might earn because of the loss. For example, if the insured business is the only relatively undamaged builders supplier in a town hit by a tornado, the business owner cannot claim the increase in income is normal.
There is an option to select a longer period of coverage for ordinary expenses. Payroll for key employees, such as officers and executives, is not limited to the sixty-day period. Employees under contract are included within the nonordinary payroll expenses, presumably because the salary expense will continue. The insured may also decide to include additional employees or job classifications as nonordinary payroll.
(2)Extended Business Income
(a)If the necessary suspension of your "operations" produces a Business Income loss payable under this policy, we will pay for the actual loss of Business Income you incur during the period that:
(i)Begins on the date property except finished stock is actually repaired, rebuilt or replaced and "operations" are resumed; and
(ii)Ends on the earlier of:
i. The date you could restore your "operations", with reasonable speed, to the level which would generate the Business Income amount that would have existed if no direct physical loss or damage had occurred; or
ii. 60 consecutive days after the date determined in Paragraph (a)(i) above, unless a greater number of consecutive days is shown in the Declarations.
However, Extended Business Income does not apply to loss of Business Income incurred as a result of unfavorable business conditions caused by the impact of the Covered Cause of Loss in the area where the described premises are located.
(b)Loss of Business Income must be caused by direct physical loss or damage at the described premises caused by or resulting from any Covered Cause of Loss.
(3)With respect to the coverage provided in this Additional Coverage, suspension means:
(a)The partial slowdown or complete cessation of your business activities; and
(b)That a part or all of the described premises is rendered untenantable, if coverage for Business Income applies.
(4)This Additional Coverage is not subject to the Limits of Insurance of Section I – Property.
Analysis
Extended business income provides an additional amount of coverage, limited by the earlier of sixty days or the date operations are restored to their preloss capacity. The 2013 form increased the number of days from thirty to sixty. In the current BP 00 03, this period may be extended and a greater number of days selected. This additional amount is triggered by the business income loss and provides a stop-gap between when operations begin following the period of restoration and when operations reach their preloss speed.
The coverage does not apply, however, to a situation where an unfavorable business condition is created by the covered loss. For example, in the tornado situation previously described, suppose everyone decided to rebuild using concrete block and the insured builders supply carried only wood products. The extended business income coverage would not apply.
g.Extra Expense
(1)We will pay necessary Extra Expense you incur during the "period of restoration" that you would not have incurred if there had been no direct physical loss or damage to property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss. With respect to loss of or damage to personal property in the open or personal property in a vehicle, the described premises include the area within 100 feet of such premises.
With respect to the requirements set forth in the preceding paragraph, if you occupy only part of a building, your premises means:
(a)The portion of the building which you rent, lease or occupy;
(b)The area within 100 feet of the building or within 100 feet of the premises described in the Declarations, whichever distance is greater (with respect to loss of or damage to personal property in the open or personal property in a vehicle); and
(b)Any area within the building or at the described premises, if that area services, or is used to gain access to, the portion of the building which you rent, lease or occupy.
(2)Extra Expense means expense incurred:
(a)To avoid or minimize the suspension of business and to continue "operations":
(i)At the described premises; or
(ii)At replacement premises or at temporary locations, including relocation expenses, and costs to equip and operate the replacement or temporary locations.
(b)To minimize the suspension of business if you cannot continue "operations".
(c)To:
(i)Repair or replace any property; or
(ii)Research, replace or restore the lost information on damaged "valuable papers and records":
to the extent it reduces the amount of loss that otherwise would have been payable under this Additional Coverage or Additional Coverage f. Business Income.
(3) With respect to the coverage provided in this Additional Coverage, suspension means:
(a)The partial slowdown or complete cessation of your business activities; or
(b)That a part or all of the described premises is rendered untenantable, if coverage for Business Income applies.
(4)We will only pay for Extra Expense that occurs within twelve consecutive months after the date of direct physical loss or damage. This Additional Coverage is not subject to the Limits of Insurance of Section I – Property.
Analysis
The extra expense coverage responds to those expenses the insured would not have incurred had there been no covered loss. There are requirements that the expenses (1) avoid or minimize the suspension of business by continuing either at the described premises or a replacement premises; (2) minimize the suspension if operations cannot be continued; or (3) repair or replace property or restore lost information, but only if these steps reduce the amount of loss payable. So, for example, if the insured's business personal property coverage is insufficient to replace three desks, this coverage may be called upon if replacing the desks minimizes the business income expense.
The wording regarding occupying only a portion of the site at which the insured premises is located is carried through into the extra expense additional coverage. To see the importance of this consider a business located in a mall. If a portion of the mall burns, access to the insured business may be restricted even though there is no damage to the insured business itself.
The 2013 form revision added provision g. (1)(b), stating that premises also means the area within 100 feet of the building or within 100 feet of the premises described in the declarations, whichever distance is greater, with respect to loss or damage to personal property in the open or personal property in a vehicle. Often the described premises in these instances would be the tenant's suite number or some other indicator of where the individual office or work space is located, which, if on the fifteenth floor of an office building, the 100-foot radius for business personal property coverage in the open may not be sufficient to provide coverage for property left in a vehicle or deliveries left at the front door of the building.
The coverage for extra expense is limited to twelve consecutive months after the date of direct physical loss or damage.
The form's definition of suspension clarifies that the insured business need not be shut down completely in order for business income coverage to be triggered. Rather, the business may be either completely stopped or partially slowed. A part or all of the described premises must be rendered untenantable, but remember that in the case of a business occupying only a part of the site, the described premises encompasses more than just that occupied part.
i. Civil Authority
When a Covered Cause of Loss causes damage to property other than property at the described premises, we will pay for the actual loss of Business Income you sustain and necessary Extra Expense caused by action of civil authority that prohibits access to the described premises, provided that both of the following apply:
(1)Access to the area immediately surrounding the damaged property is prohibited by civil authority as a result of the damage, and the described premises are within that area but are not more than one mile from the damaged property; and
(2)The action of civil authority is taken in response to dangerous physical conditions resulting from the damage or continuation of the Covered Cause of Loss that caused the damage, or the action is taken to enable a civil authority to have unimpeded access to the damaged property.
The coverage for Business Income will begin seventy-two hours after the time of that action and will apply for a period of up to three consecutive weeks after coverage begins.
Civil Authority Coverage for Business Income will begin 72 hours after the time of the first action of civil authority that prohibits access to the described premises that action and will apply for a period of up to four consecutive weeks from the date on which such coverage began.
Civil Authority Coverage for necessary Extra Expense will begin immediately after the time of the first action of civil authority that prohibits access to the described premises and will end:
(1)Four consecutive weeks after the time date of that action; or
(2)When your Civil Authority Coverage for Business Income ends;
whichever is later.
The definitions of Business Income and Extra Expense contained in the Business Income and Extra Expense Additional Coverages also apply to this Civil Authority Additional Coverage. The Civil Authority Additional Coverage is not subject to the Limits of Insurance of Section I – Property.
Analysis
When a covered cause of loss occurs away from the described premises but causes the civil authorities to prohibit access to the described premises, loss of business income is triggered. Business income coverage begins seventy-two hours after the time of the action, and applies for a period of up to four consecutive weeks or when the business income coverage ends, whichever is later. The 2010 form increased this time period, which was previously three weeks.
Coverage for extra expense arising out of an act of civil authority—say the insured temporarily relocates to a different office—begins immediately after the time of the action and ends four consecutive weeks after the time of the action or when business income coverage ends, whichever is later.
The 2010 form presents a reduction in coverage by requiring the insured premises to be not more than one mile from the damaged property.
m.Business Income From Dependent Properties
(1)We will pay for the actual loss of Business Income you sustain due to physical loss or damage at the premises of a dependent property or secondary dependent property caused by or resulting from any covered Cause of Loss.
However, this Additional Coverage does not apply when the only loss at the premises of a dependent property or secondary dependent property is loss or damage to "electronic data", including destruction or corruption of "electronic data". If the dependent property or secondary dependent property sustains loss or damage to "electronic data" and other property, coverage under this Additional Coverage will not continue once the other property is repaired, rebuilt or replaced.
The most we will pay under this Additional coverage is $5,000 unless a higher Limit Of Insurance is indicated in the Declarations.
(2)We will reduce the amount of your Business Income loss, other than Extra Expense, to the extent you can resume "operations", in whole or in part, by using any other available:
(a)Source of materials; or
(b)Outlet for your products.
(3)If you do not resume "operations", or do not resume "operations" as quickly as possible, we will pay based on the length of time it would have taken to resume "operations" as quickly as possible.
(4)Dependent property means property owned by others whom you depend on to:
(a)Deliver materials or services to you, or to others for your account. But services does not mean water supply services, wastewater removal services, communication supply services or power supply services;
(b)Accept your products or services;
(c)Manufacture your products for delivery to your customers under contract for sale; or
(d) Attract customers to your business.
The dependent property must be located in the coverage territory of this policy.
(5)Secondary dependent property means an entity which is not owned or operated by a dependent property and which;
(a)Delivers materials or services to a dependent property, which in turn are used by the dependent property in providing materials or services to you; or
(b)Accepts materials or services from a dependent property, which in turn accepts materials or services.
A road, bridge, tunnel, waterway, airfield, pipeline or any other similar area or structure is not a secondary dependent property
Any property which delivers any of the following services is not a secondary dependent property with respect to such services:
(i)Water supply services;
(ii)Wastewater removal services;
(iii)Communication supply services; or
(iv)Power supply services.
The secondary dependent property must be located in the coverage territory of the policy
(6)The coverage period for Business Income under this Additional Coverage:
(a)Begins seventy-two hours after the time of direct physical loss or damage caused by or resulting from any covered Cause of Loss at the premises of the dependent property or secondary dependent property; and
(b)Ends on the date when the property at the premises of the dependent property or secondary dependent property should be repaired, rebuilt or replaced with reasonable speed and similar quality.
(7)The Business Income coverage period, as stated in Paragraph (6), does not include any increased period required due to the enforcement of or compliance with any ordinance or law that:
(a)Regulates the construction, use or repair, or requires the tearing down of any property; or
(b)Requires any insured or others to test for, monitor , clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of "pollutants".
The expiration date of this policy will not reduce the Business Income coverage period.
(8)The definition of Business Income contained in the Business Income Additional Coverage also applies to this Business Income From Dependent Properties Additional Coverage.
Analysis
The coverage for business income from dependent properties is limited to $5,000 although a greater amount of coverage may be purchased. The definition of business income (see f.(c)) is the same for this coverage as in the business income and extended business income additional coverages. The dependent property upon which the insured business relies must be located in the coverage territory, that is, the United States, including its territories and possessions, Puerto Rico, and Canada.
The 2013 form broadened coverage under this provision by paying for actual loss of business income sustained due to physical loss or damage at the premises of secondary dependent properties resulting from a covered cause of loss. A definition of secondary dependent properties was also added. An example of a secondary dependent property would be a manufacturer who provides materials to an insured's dependent property, such as a supplier.
The 2013 revision also added a reference to wastewater removal services in the exception to the definition of dependent property.
The 2006 form added a revision that reduces coverage and states that coverage is not triggered when damage to electronic data is the only damage at a dependent property's premises. If other property is damaged as well as the electronic data, the additional coverage will continue only until the other property is repaired or replaced.
There is a time deductible of seventy-two hours after the time of the direct physical loss or damage resulting in the loss of income. Coverage ends when the property at the premises of the dependent property should be restored, repaired, or replaced "with reasonable speed and similar quality." The expiration date of the policy does not reduce this coverage. The amount of income may be decreased to the extent that the insured can use—not does use—other available sources for either supplies or as markets. Therefore, the insured is under notice to make other arrangements in a timely manner.
The coverage does not respond to any increased period because of enforcement of any ordinance or law regarding repair or construction or assessment of any pollutants.
6.Coverage Extensions
In addition to the Limits of Insurance of Section I – Property, you may extend the insurance provided by this policy as provided below.
Except as otherwise provided, the following Extensions apply to property located in or on the building described in the Declarations or in the open (or in a vehicle) within 100 feet of the described premises.
a.Newly Acquired Or Constructed Property
(1)Buildings
If this policy covers Buildings, you may extend that insurance to apply to:
(a)Your new buildings while being built on the described premises; and
(b)Buildings you acquire at premises other than the one described, intended for:
(i)similar use as the building described in the Declarations; or
(ii)use as a warehouse
The most we will pay for loss or damage under this Extension is $250,000 at each building.
(2)Business Personal Property
If this policy covers Business Personal Property, you may extend that insurance to apply to:
(a)Business Personal Property, including such property that you newly acquire, at any location you acquire.
(b)Business Personal Property, including such property that you newly acquire, located at your newly constructed or acquired buildings at the location described in the Declarations; or
This Extension does not apply to personal property that you temporarily acquire in the course of installing or performing work on such property or your wholesale activities.
The most we will pay for loss or damage under this Extension is $100,000 at each building.
(3)Period Of Coverage
With respect to insurance provided under this Coverage Extension for Newly Acquired Or Constructed Property, coverage will end when any of the following first occurs:
(a)This policy expires;
(b)30 days expire after you acquire the property or begin construction of that part of the building that would qualify as Covered Property; or
(c)You report values to us.
We will charge you additional premium for values reported from the date you acquire the property or begin construction of that part of the building that would qualify as Covered Property.
Analysis
In the previous forms, this coverage extension provided $100,000 for personal property at a newly acquired premises. In the current form, if the policy covers buildings, the coverage extension applies to buildings being constructed at the described premises and to newly acquired buildings intended for similar use (or for a warehouse) at premises other than the described premises. Coverage under this extension is limited to $250,000 at each building.
If the policy covers business personal property, the extension applies to business personal property, including newly acquired property, at any new location, and to property at a newly constructed or acquired building at the described premises. The 2013 revision removed coverage for newly acquired business personal property located at the described premises, which represents a reduction in coverage. ISO stated that this type of property may be more appropriately covered by a policy changes endorsement.
This coverage is limited to $100,000 at each premises. However, the extension does not apply to personal property temporarily acquired in the course of installing or performing work on it or to the insured's wholesale activities. An insured whose policy does not cover buildings should be aware that there is no coverage for a newly-purchased or constructed building; additional coverage must be arranged.
These coverages end when any of these first occurs: the policy's expiration date; thirty days expire after the property has been acquired or construction of what would qualify as covered property begins; or the insured reports the values to the insurer. The insurer will then modify premium accordingly.
b.Personal Property Off-premises
You may extend the insurance provided by this policy to apply to your covered property, other than "money" and "securities", "valuable papers and records" or accounts receivable, while it is in the course of transit or at a premises you do not own, lease or operate. The most we will pay for loss or damage under this Extension is $10,000.
c.Outdoor Property
You may extend the insurance provided by this policy to apply to your outdoor fences, radio and television antennas (including satellite dishes), signs (other than signs attached to buildings), trees, shrubs and plants (other than trees, shrubs or plants which are part of a vegetated roof), including debris removal expense. Loss or damage must be caused by or result from any of the following causes of loss:
(1)Fire;
(2)Lightning;
(3)Explosion;
(4)Riot or Civil Commotion; or
(5)Aircraft.
The most we will pay for loss or damage under this Extension is $2,500, unless a higher Limit of Insurance for Outdoor Property is shown in the Declarations, but not more than $1,000 for any one tree, shrub or plant.
Subject to the aforementioned terms and limitations of coverage, this Coverage Extension includes the expense of removing from the described premises the debris of trees, shrubs and plants which are the property of others, except in the situation in which you are a tenant and such property is owned by the landlord of the described premises.
d.Personal Effects
You may extend the insurance that applies to Business Personal Property to apply to personal effects owned by you, your officers, your partners or "members", your "managers" or your employees, including temporary or leased employees. This extension does not apply to:
(1)Tools or equipment used in your business; or
(2)Loss or damage by theft.
The most we will pay for loss or damage under this Extension is $2,500 at each described premises.
Subject to all aforementioned terms and limitations of coverage, this Coverage Extension includes the expense of removing from the described premises the debris of trees, shrubs and plants which are the property of others, except in the situation in which you are a tenant and such property is owned by the landlord of the described premises.
Analysis
Coverage b. includes business personal property at another premises. The prior wording stated the coverage applied only to property temporarily at another premises; the current form has eliminated this so that business personal property at another premises is covered no matter how long the duration. The 2006 form increased this extension's limit to $10,000.
The 2010 form provided an option under the outdoor property coverage extension to choose a higher limit and increased the limit for any one tree, shrub, or plant to $1,000. The 2013 revision added an exception for trees, shrubs, or plants that are part of a vegetated roof. The broadened coverage for this type of property replaces the coverage provided by the outdoor property coverage extension.
The 2013 revision also added coverage for debris removal expense for trees, shrubs, and plants not owned by the insured, except when the insured is a tenant and the owner of the described premises owns the trees, shrubs, or plants.
By including coverage under personal effects for members and managers, the BOP provides coverage for those who operate as a limited liability company (LLC). Previously, this type of business was not recognized. The coverage does not apply to loss or damage by theft or to loss to tools or equipment used in the insured's business. So, for example, if an employee's handbag is damaged by fire at the premises, there is coverage, but not if the handbag is stolen.
The 2013 revision added language to the personal effects coverage extension to clarify that temporary and leased employees are included as employees under this provision.
e.Valuable Papers And Records
(1)You may extend the insurance that applies to Business Personal Property to apply to direct physical loss or damage to "valuable papers and records" that you own, or that are in your care, custody or control, caused by or resulting from a Covered Cause of Loss. This Coverage Extension includes the cost to research lost information on "valuable papers and records" for which duplicates do not exist.
(2)This Coverage Extension does not apply to:
(a)Property held as samples or for delivery after sale; and
(b)Property in storage away from the premises shown in the Declarations.
(3)The most we will pay under this Coverage Extension for loss or damage to "valuable papers and records" in any one occurrence at the described premises is $10,000, unless a higher Limit Of Insurance for "valuable papers and records" is shown in the Declarations.
For "valuable papers and records" not at the described premises, the most we will pay is $5,000.
(4)Loss or damage to "valuable papers and records" will be valued at the cost of restoration or replacement of the lost or damaged information. To the extent that the contents of the "valuable papers and records" are not restored, the "valuable papers and records" will be valued at the cost of replacement with blank materials of substantially identical type.
(5)Paragraph B. Exclusions in Section I – Property does not apply to this Coverage Extension except for:
(a)Paragraph B.1.c., Governmental Action;
(b)Paragraph B.1.d., Nuclear Hazard;
(c)Paragraph B.1.f., War And Military Action;
(d)Paragraph B.2.f., Dishonesty;
(e)Paragraph B.2.g., False Pretense;
(f)Paragraph B.2.m(2), Errors or Omissions; and
(g)Paragraph B.3
Analysis
Coverage under this extension is $10,000 for loss to valuable papers at the described premises, and $5,000 for loss to valuable papers not at the described premises. Additionally, the coverage includes the cost to replace or restore as well as research lost information. The definition for "valuable papers and records" includes those on electronic media; see Businessowners Property Coverage, Part II.
Previously the BP 00 01 01 97 provided limited coverage for loss to valuable papers and records caused by collapse. There is still coverage for loss caused by this peril even if Named Perils form BP 10 09 is attached because there is no exclusion of coverage in the BP 00 03. The reference to exclusions applicable both to accounts receivable and valuable papers and records has been deleted and will be discussed later in more detail. (But when the BP 10 09 is attached, the exclusion to both remains. See Businessowners Program Endorsements.) Coverage under this extension is extremely broad; for example, there is coverage for loss arising out of earth movement or volcanic eruption, since of the paragraph B. exclusions only certain of them, such as nuclear hazard, apply.
The 2006 form revised this additional coverage to include the loss payment provisions that were previously found in the loss payment property loss conditions.
f.Accounts Receivable
(1)You may extend the insurance that applies to Business Personal Property to apply to accounts receivable. We will pay:
(a)All amounts due from your customers that you are unable to collect;
(b)Interest charges on any loan required to offset amounts you are unable to collect pending our payment of these amounts;
(c)Collection expenses in excess of your normal collection expenses that are made necessary by loss or damage; and
(d)Other reasonable expenses that you incur to re-establish your records of accounts receivable;
that result from direct physical loss or damage by any Covered Cause of Loss to your records of accounts receivable.
(2)The most we will pay under this Coverage Extension for loss or damage in any one occurrence at the described premises is $10,000, unless a higher Limit of Insurance for accounts receivable is shown in the Declarations.
For accounts receivable not at the described premises, the most we will pay is $5,000.
(3)paragraph B. Exclusions in Section I – Property does not apply to this Coverage Extension except for:
(a)Paragraph B.1.c., Governmental Action;
(b)Paragraph B.1.d., Nuclear Hazard;
(c)Paragraph B.1.f., War And Military Action;
(d)Paragraph B.2.f., Dishonesty;
(e)Paragraph B.2.g., False Pretense;
(f)Paragraph B.3.; and
(g)Paragraph B.6., Accounts Receivable Exclusion
Analysis
The amount of insurance available is $10,000 (unless a higher limit is selected); however, $5,000 is the limit for accounts receivable not at the described premises. Direct physical loss or damage by a covered cause of loss is the trigger for this coverage, which encompasses amounts due but uncollectible from customers as well as expenses to re-establish records of accounts receivable. Certain exclusions apply, such as for war. Those applicable solely to this coverage extension are discussed in the next section.
g.Business Personal Property Temporarily In Portable Storage Units
(1)You may extend the insurance that applies to Business Personal Property to apply to such property while temporarily stored in a portable storage unit (including a detached trailer) located within 100 feet of the buildings or structures described in the Declarations or within 100 feet of the described premises, whichever distance is greater.
(2)The limitation under Paragraph A.4.a.(5) also applies to property in a portable storage unit.
(3)Coverage under this Extension:
(a)Will end 90 days after the Business Personal Property has been placed in the storage unit;
(b)Does not apply if the storage unit itself has been in use at the described premises for more than 90 consecutive days, even if the Business Personal Property has been stored there for 90 or fewer days as of the time of loss or damage.
(4)Under this Extension, the most we will pay for the total of all loss or damage to Business Personal Property is $10,000 (unless a higher limit is indicated in the Declarations for such Extension) regardless of the number of storage units.
(5)This Extension does not apply to loss or damage otherwise covered under this Coverage Form or any endorsement to this Coverage Form, and does not apply to loss or damage to the storage unit itself.
The coverage extension for business personal property temporarily in portable storage units was added with the 2013 form revision. Coverage had previously been available for personal property in the open or in a vehicle within 100 feet of the described premises, but property in storage units had not been addressed. The addition of personal property temporarily in portable storage units broadens coverage unless an insurer had previously treated property in storage units as property in the open.
The coverage provides a $10,000 limit of insurance, regardless of the number of storage units. The coverage period is ninety days.
Exclusions—Concurrent Causation Language Precludes Coverage
The exclusions reflect the fact that the BP 00 03 01 10 provides special perils coverage unless the BP 10 09 is attached. For the additional exclusions that apply in that situation, see Businessowners Program Endorsements.
The lead-in language has also been changed to reflect the fact that an excluded event may occur locally (as when a creek overflows) or over a wide-spread area (as when the Mississippi floods). The event is still excluded.
B. Exclusions
1.We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.
a.Ordinance Or Law
(1)The enforcement of or compliance with any ordinance or law:
(a)Regulating the construction, use or repair of any property; or
(b)Requiring the tearing down of any property, including the cost of removing its debris.
(2)This exclusion, Ordinance Or Law, applies whether the loss results from:
(a)An ordinance or law that is enforced even if the property has not been damaged; or
(b)The increased costs incurred to comply with an ordinance or law in the course of construction, repair, renovation, remodeling or demolition of property or removal of its debris, following a physical loss to that property.
Analysis
Remember that the additional coverage for increased cost of construction applies only to buildings insured on a replacement cost basis. Otherwise this exclusion applies. This exclusion reinforces the fact that there is no coverage for loss resulting from any ordinance or law that the insured failed to comply with even if no damage occurs to the property.
In the 2013 form, the phrase "or compliance with" was added to 1.a.(1) because compliance with codes is a necessary element of building code enforcement. In its explanatory materials, ISO stated, "We are not aware of any case law on the subject of enforcement versus compliance, but the issue has arisen sporadically in the context of claims process."
b.Earth Movement
(1)Earthquake, including tremors and aftershocks and any earth sinking, rising or shifting related to such event;
(2)Landslide, including any earth sinking, rising or shifting related to such event;
(3)Mine subsidence, meaning subsidence of a man-made mine, whether or not mining activity has ceased;
(4)Earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing erosion, improperly compacted soil and the action of water under the ground surface.
But if Earth Movement, as described in paragraphs (1) through (4) above, results in fire or explosion, we will pay for the loss or damage caused by that fire or explosion.
(5)Volcanic eruption, explosion or effusion. But if volcanic eruption, explosion or effusion results in fire, building glass breakage or volcanic action, we will pay for the loss or damage caused by that fire, building glass breakage or volcanic action.
Volcanic action means direct loss or damage resulting from the eruption of a volcano when the loss or damage is caused by:
(a)Airborne volcanic blast or airborne shock waves;
(b)Ash, dust or particulate matter; or
(c)Lava flow.
With respect to coverage for volcanic action as set forth in 5(a), (5)(b) and 5(c), all volcanic eruptions that occur within any 168-hour period will constitute a single occurrence.
Volcanic action does not include the cost to remove ash, dust or particulate matter that does not cause direct physical loss or damage to Covered Property.
This exclusion applies regardless of whether any of the above, in Paragraphs
(1) through (5), is caused by an act of nature or is otherwise caused.
Analysis
The 2013 revision added tremors and aftershocks to the description of what an earthquake incorporates.
Earth movement can result from soil conditions such as compaction or improper compaction. This wording was added in the 2006 edition.
Resulting fire and explosion is covered as an exception to the earth movement exclusion.
Resulting fire, building glass breakage, and volcanic action is covered as an exception to the volcanic eruption portion of the exclusion. Language was also added in the 2013 form to indicate that the 168-hour period applies to the volcanic action coverage and not to the exclusion, which includes the entire event regardless of duration.
The 2013 form added the final sentence stating that the exclusion applies whether the events are caused by an act or nature or are otherwise caused. For example, causes other than nature, such as drainage of a swamp or human diversion of water, can cause landslides. Even though not caused by an act of nature, damage resulting from such landslides would be excluded.
c..Governmental Action
Seizure or destruction of property by order of governmental authority.
But we will pay for loss or damage caused by or resulting from acts of destruction ordered by governmental authority and taken at the time of a fire to prevent its spread, if the fire would be covered under this policy.
d.Nuclear Hazard
Nuclear reaction or radiation, or radioactive contamination, however caused.
But if nuclear reaction or radiation, or radioactive contamination, results in fire, we will pay for the loss or damage caused by that fire.
e. Utility Services
The failure of power, communication, water or other utility service supplied to the described premises, however caused, if the failure:
(1)Originates away from the described premises; or
(2)Originates at the described premises, but only if such failure involves equipment used to supply the utility service to the described premises from a source away from the described premises.
Failure of any utility service includes lack of sufficient capacity and reduction in supply.
Loss or damage caused by a surge of power is also excluded, if the surge would not have occurred but for an event causing a failure of power.
But if the failure or surge of power, or the failure of communication, water or other utility service, results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
Communication services include but are not limited to service relating to Internet access or access to any electronic, cellular or satellite network.
This exclusion does not apply to loss or damage to "computer(s)" and "electronic data".
Analysis
The 2010 edition of the BP 00 03 changed the power failure exclusion to the utility services exclusion to more accurately capture the extent of the exclusion. The exclusion is not limited to power failure but to utility service failures, which include communication and water services as well as power.
The exclusion has been revised to address utility failure at the described premises when the failure involves equipment used to provide utility service provided by off-premises providers. An explicit statement makes it clear that power surge related to the power failure event is part of the exclusion.
f. War And Military Action
(1)War, including undeclared or civil war;
(2)Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or
(3)Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these.
g.Water
(1)Flood, surface water, waves (including tidal wave and tsunami), tides, tidal water, overflow of any body of water, or spray from any of these, all whether or not driven by wind (including storm surge);
(2)Mudslide or mudflow;
(3)Water that backs up or overflows or is otherwise discharged from a sewer, drain, sump, sump pump, or related equipment;
(4)Water under the ground surface pressing on, or flowing or seeping through:
(a)Foundations, walls, floors or paved surfaces;
(b)Basements, whether paved or not; or
(c)Doors, windows or other openings.
(5)Waterborne material carried or otherwise moved by any of the water referred to in Paragraph (1), (3) or (4), or material carried or otherwise moved by mudslide or mudflow.
This exclusion applies regardless of whether any of the above, in Paragraphs (1) through (5), is caused by an act of nature or is otherwise caused. An example of a situation to which this exclusion applies is the situation where a dam, levee, seawall or other boundary or containment system fails in whole or in part, for any reason, to contain the water.
But if any of the above in Paragraphs (1) through (5), results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage.
Analysis
Although, as is common with other commercial property forms, loss resulting from flood, surface water, water beneath the surface of the ground, or water that backs up through sewers or drains is excluded, under the current program coverage may be added for back-up of sewer or drain or sump pump overflow via endorsement BP 04 53 07 13. See Businessowners Program Endorsements for more details.
The 2010 form expanded the water definition to include tidal waves, tsunami, and storm surge. Back ups and overflows are not the only excluded actions—the form now states that water that backs up, overflows, or is otherwise discharged is excluded. Also, waterborne material has been added to the endorsement. While coverage is not affected by these additions, the scope of the exclusion is reinforced. The changes were made to incorporate the provisions of the Water Exclusion endorsement, BP 01 59, which was withdrawn from use.
(1)The failure, malfunction or inadequacy of:
(a)Any of the following, whether belonging to any insured or to others:
(i)"Computer" hardware, including microprocessors or other electronic data processing equipment as may be described elsewhere in this policy;
(ii)"Computer" application software or other "electronic data" as may be described elsewhere in this policy;
(iii)"Computer" operating systems and related software.
(iv)"Computer" networks;
(v) Microprocessors ("computer" chips) not part of any "computer" system; or
(vi)Any other computerized or electronic equipment or components; or
(b)Any other products, and any services, data or functions that directly or indirectly use or rely upon, in any manner, any of the items listed in Paragraph (a) above;
due to the inability to correctly recognize, distinguish, interpret or accept one or more dates or times. An example is the inability of computer software to recognize the year 2000.
(2)Any advice, consultation, design, evaluation, inspection, installation, maintenance, repair, replacement or supervision provided or done by you or for you to determine, rectify or test for, any potential or actual problems described in paragraph (1) above.
However, if excluded loss or damage, as described in paragraph (1) above, results in a "specified cause of loss" under Section I – Property, we will pay only for the loss or damage caused by such "specified cause of loss".
We will not pay for repair, replacement or modification of any items in Paragraphs (1)(a) or (1)(b) to correct any deficiencies or change any features.
Analysis
These exclusions are, in many cases, similar to those found in the commercial property forms. The concurrent causation language precedes exclusion 1.a. through 1.h so that coverage is excluded even if a covered cause of loss contributes sequentially or concurrently to the loss. See "Concurrent Causation," Fire & Marine, Miscellaneous Property. However, there are exceptions. Loss or damage resulting from acts of destruction ordered by governmental authority to prevent spread of a fire (if the fire is covered under the policy) is covered. Fire resulting from nuclear reaction is covered, as is fire or explosion resulting from earth movement. Fire and volcanic action—defined as direct loss or damage resulting from the eruption of a volcano that causes shock waves, ash, or lava flow—are covered. If off-premises power failure results in a covered cause of loss, the resulting loss is covered. And, if water as described results in fire, explosion, or sprinkler leakage, that resulting damage is covered.
Because coverage for some computer-related loss is included, the exclusion that once was required to be attached excluding coverage for certain time-failure losses is incorporated into the coverage form. However, if excluded loss or damage results in one of the specified causes of loss, such as fire, then that resulting fire loss is covered. For example, a computer governs the time a piece of machinery is to turn off. The computer malfunctions, the machinery overheats, and a fire ensues. The resulting fire damage is covered.
i."Fungi", Wet Rot Or Dry Rot
Presence, growth, proliferation, spread or any activity of "fungi", wet rot or dry rot. But if "fungi", wet rot or dry rot results in a "specified cause of loss", we will pay for the loss or damage caused by that "specified cause of loss". This exclusion does not apply:
(1)When "fungi", wet rot or dry rot results from fire or lightning; or
(2)To the extent that coverage is provided in the Limited Coverage For "Fungi", Wet Rot or Dry Rot Additional Coverage with respect to loss or damage by a cause of loss other than fire or lightning.
j. Virus Or Bacteria
(1) Any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.
(2) However, the exclusion in Paragraph (1) does not apply to loss or damage caused by or resulting from "fungi", wet rot or dry rot. Such loss or damage is addressed in Exclusion i..
(3) With respect to any loss or damage subject to the exclusion in Paragraph (1), such exclusion supersedes any exclusion relating to "pollutants".
Analysis
Any activity of fungi or wet or dry rot is excluded except if it results from fire or lightning or is covered by the additional coverage. If fungi or wet or dry rot result in a specified cause of loss, the loss or damage caused by the specified cause of loss is covered. The 2010 edition of the form removed bacteria from this exclusion to make way for the virus or bacteria exclusion.
ISO incorporated the provisions of the Exclusion Of Loss Due To Virus Or Bacteria endorsement, BP 06 01, into the form (and withdrew the endorsement). Losses resulting from or caused by virus, bacterium, or other microorganisms that can induce physical distress, illness, or disease are excluded. The exclusion does not apply to loss or damage caused by wet or dry rot or fungi and supersedes exclusions relating to pollutants (as defined by the policy).
Exclusions—Some Resulting Losses Covered
The following group of exclusions are not prefaced by the concurrent causation language, and so some of the exclusions are followed by exceptions.
2.We will not pay for loss or damage caused by or resulting from any of the following:
a.Electrical Apparatus
Artificially generated electrical, magnetic or electromagnetic energy that damages, disturbs, disrupts or otherwise interferes with any:
(1) Electrical or electronic wire, device, appliance, system or network; or
(2)Device, appliance, system or network utilizing cellular or satellite technology. For the purpose of this exclusion, electrical, magnetic or electromagnetic energy includes but is not limited to:
(1) Electrical current, including arcing;
(2)Electrical charge produced or conducted by a magnetic or electromagnetic field;
(3) Pulse of electromagnetic energy; or
(4) Electromagnetic waves or microwaves
But if fire results, we will pay for the loss or damage caused by fire.
We will pay for loss or damage to "computer(s)" due to artificially generated electrical, magnetic or electromagnetic energy if such loss or damage is caused by or results from:
(1)An occurrence that took place within one-hundred feet of the described premises; or
(2)Interruption of electric power supply, power surge, blackout or brownout if the cause of such occurrence took place within 100 feet of the described premises.
Analysis
The 2010 policy updated this exclusion by incorporating various technical terms that more explicitly describe the excluded causes.
b.Consequential Losses
Delay, loss of use or loss of market.
c.Smoke, Vapor, Gas
Smoke, vapor or gas from agricultural smudging or industrial operations.
d.Steam Apparatus
Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control. But if explosion of steam boilers, steam pipes, steam engines or steam turbines results in fire or combustion explosion, we will pay for the loss or damage caused by that fire or combustion explosion. We will also pay for loss or damage caused by or resulting from the explosion of gases or fuel within the furnace of any fired vessel or within the flues or passages through which the gases of combustion pass.
Analysis
Exclusion 2.d., steam apparatus, excludes explosion of steam boilers, but if the explosion results in fire or combustion explosion the damage is covered. Also, loss or damage caused by or resulting from the explosion of gases or fuel within the furnace of any fired vessel or within the flues is covered. The explosion of such gases is not considered an accident in the mechanical breakdown optional section since the coverage is provided for in this section.
e.Frozen Plumbing
Water, other liquids, powder or molten material that leaks or flows from plumbing, heating, air conditioning or other equipment (except fire protective systems) caused by or resulting from freezing, unless:
(1)You do your best to maintain heat in the building or structure; or
(2)You drain the equipment and shut off the supply if the heat is not maintained.
f.Dishonesty
Dishonest or criminal acts (including theft) by you, anyone else with an interest in the property, or any of your or their partners, "members", officers, "managers", employees (including temporary or leased employees), directors, trustees or authorized representatives, whether acting alone or in collusion with each other or with any other party; or theft by any person to whom you entrust the property for any purpose, whether acting alone or in collusion with any other party.
This exclusion:
(1) Applies whether or not an act occurs during your normal hours of operation;
(2) Does not apply to acts of destruction by your employees (including temporary or leased employees) or authorized representatives; but theft by your employees (including temporary or leased employees) or authorized representatives is not covered.
With respect to accounts receivable and "valuable papers and records", this exclusion does not apply to carriers for hire.
This exclusion does not apply to coverage that is provided under the Employee Dishonesty Optional Coverage.
g.False Pretense
Voluntary parting with any property by you or anyone else to whom you have entrusted the property if induced to do so by any fraudulent scheme, trick, device or false pretense.
h.Exposed Property
Rain, snow, ice or sleet to personal property in the open.
i.Collapse
(1)Collapse, including any of the following conditions of property or any part of the property:
(a)An abrupt falling down or caving in;
(b)Loss of structural integrity, including separation of parts of the property or property in danger of falling down or caving in; or
(c)Any cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion as such condition relates to Paragraph i.(1)(a) or i.(1)(b).
But if collapse results in a Covered Cause of Loss at the described premises, we will pay for the loss or damage caused by that Covered Cause of Loss.
(2)This Exclusion i. does not apply:
(a)To the extent that coverage is provided under the Additional Coverage – Collapse; or
(b)To collapse caused by one or more of the following:
(i)The "specified causes of loss";
(ii)Breakage of building glass;
(iii)Weight of rain that collects on a roof; or
(iv)Weight of people or personal property.
j.Pollution
We will not pay for loss or damage caused by or resulting from the discharge, dispersal, seepage, migration, release or escape of "pollutants" unless the discharge, dispersal, seepage, migration, release or escape is itself caused by any of the "specified causes of loss". But if the discharge, dispersal, seepage, migration, release or escape of "pollutants" results in a "specified cause of loss", we will pay for the loss or damage caused by that "specified cause of loss".
k.Neglect
Neglect of an insured to use all reasonable means to save and preserve property from further damage at and after the time of loss.
Analysis
The exclusion for dishonesty reflects the possibility that the insured business may be a limited liability company; thus, there is no coverage for members or managers—both defined terms
In the 2013 revision, ISO stated that the dishonestly exclusion was being revised "to distinguish between those who have a role in the insured's business (partners, managers, employees, etc.) and others to whom the property may be entrusted (a category that could include tenants and bailees, for example)." For those to whom property has been entrusted, the exclusion applies only to theft. The exclusion's exception for acts of destruction extends to authorized representatives. And clarification is made that employees include temporary and leased employees.
ISO revised the collapse exclusion in the 2010 edition of the form to describe conditions affecting property coverage and to reinforce the relationship between the exclusion and the additional coverage.
The exclusion for loss or damage caused by pollutants applies unless the escape of the pollutants is caused by a specified cause of loss. This is in contrast to additional coverage h., pollutant clean up and removal, which responds to expense to extract pollutants from land or water if caused by a covered cause of loss.
The exclusion for neglect simply reinforces the insured's duty in event of a loss.
l. Other Types Of Loss
(1)Wear and tear;
(2)Rust or other corrosion, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself;
(3)Smog;
(4)Settling, cracking, shrinking or expansion;
(5)Nesting or infestation, or discharge or release of waste products or secretions, by insects, birds, rodents or other animals;
(6)Mechanical breakdown, including rupture or bursting caused by centrifugal force.
This exclusion does not apply with respect to the breakdown of "computer(s)";
(7)The following causes of loss to personal property:
(a)Dampness or dryness of atmosphere;
(b)Changes in or extremes of temperature; or
(c)Marring or scratching.
But if an excluded cause of loss that is listed in Paragraphs (1) through (7) above results in a "specified cause of loss" or building glass breakage, we will pay for the loss or damage caused by that "specified cause of loss" or building glass breakage.
Analysis
Because the coverage form provides coverage for computers, exclusion l.(6) mechanical breakdown has been amended so that there is coverage for a computer that breaks down unless another exclusion applies.
m.Errors Or Omissions
Errors or omissions in:
(1)Programming, processing or storing data, as described under "electronic data" or in any "computer" operations; or
(2)Processing or copying "valuable papers and records".
However, we will pay for direct physical loss or damage caused by resulting fire or explosion if these causes of loss would be covered by this Coverage Form.
n.Installation, Testing, Repair
Errors or deficiency in design, installation, testing, maintenance, modification or repair of your "computer" system including "electronic data".
However, we will pay for direct physical loss or damage caused by resulting fire or explosion if these causes of loss would be covered by this Coverage Form.
o.Electrical Disturbance
Electrical or magnetic injury, disturbance or erasure of "electronic data", except as provided for under the Coverage Extensions of Section I – Property.
However, we will pay for direct loss or damage caused by lightning.
Analysis
The exclusions for errors and omissions (m.), installation and testing (n.), and electrical disturbance (o.) appeared in the businessowners standard and special computer coverage endorsements. But because the BP 00 03 provides coverage for computers, many of the exclusions have been incorporated into this form. The exclusion under errors and omissions for copying valuable papers and records formerly appeared under the exclusions for both accounts receivable and valuable papers and records.
p.Continuous Or Repeated Seepage Or Leakage Of Water
Continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more.
Analysis
For consistency with the Commercial Property program, which contains an exclusion for continuous or repeated seepage or leakage of water, ISO introduced the exclusion to the Businessowners program as well.
3.We will not pay for loss or damage caused by or resulting from any of the following Paragraphs a. through c. But if an excluded cause of loss that is listed in paragraphs a. through c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
a.Weather Conditions
Weather conditions. But this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in Paragraph B.1. above to produce the loss or damage.
b.Acts or Decisions
Acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body.
c.Negligent Work
Faulty, inadequate or defective:
(1)Planning, zoning, development, surveying, siting;
(2)Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
(3)Materials used in repair, construction, renovation or remodeling; or
(4)Maintenance;
of part or all of any property on or off the described premises.
Analysis
These exclusions appear regularly in special perils forms. Loss that is confined to the excluded peril is not covered; however, if the excluded peril results in a covered cause of loss, that resulting cause of loss is covered. The exception to this is 3.a. weather conditions. If weather conditions contribute to, for example, flooding or a mudslide (two of the B.1. excluded perils), the insured cannot argue that weather conditions were the proximate cause and therefore a loss should be covered. But if a severe storm results in lightning damage, the weather conditions brought about a nonexcluded cause of loss.
Similarly, loss resulting from acts or decisions or negligent work is not covered, but a nonexcluded loss arising out of the act or work is covered. For example, a negligent workman may connect the wrong series of wires so that a job must be redone. There is no coverage for re-wiring. But if the faulty wiring job results in a fire, that fire is covered.
4. Additional Exclusion
The following applies only to the property specified in this Additional Exclusion:
Loss Or Damage To Products
We will not pay for loss or damage to any merchandise, goods or other product caused by or resulting from error or omission by any person or entity including those having possession under an arrangement where work or a portion of the work is outsourced) in any stage of the development, production or use of the product,including planning, testing, processing, packaging, installation, maintenance or repair. This exclusion applies to any effect that compromises the form, substance or quality of the product. But if such error or omission results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
Analysis
The 2010 form added this exclusion to reinforce that errors in the production process that cause products to become useless and are destroyed is a business risk and not something intended to be covered by the policy. The need to destroy a product made useless by an error in the production process is not considered physical loss or damage to that product.
5.Business Income And Extra Expense Exclusions
a. We will not pay for:
(1)Any Extra Expense, or increase of Business Income loss, caused by or resulting from:
(a)Delay in rebuilding, repairing or replacing the property or resuming "operations", due to interference at the location of the rebuilding, repair or replacement by strikers or other persons; or
(b)Suspension, lapse or cancellation of any license, lease or contract. But if the suspension, lapse or cancellation is directly caused by the suspension of "operations", we will cover such loss that affects your Business Income during the "period of restoration" and any extension of the "period of restoration" in accordance with the terms of the Extended Business Income Additional Coverage.
(2)Any other consequential loss.
b.With respect to this exclusion, suspension means:
(1)The partial slowdown or complete cessation of your business activities; and
(2)That a part or all of the described premises is rendered untenantable, if coverage for Business Income applies.
Analysis
Exclusion 5. contains exclusions pertinent to the business income and extra expense additional coverages. Extra expense or increase in business income loss caused by or resulting from delay in rebuilding caused by the actions of strikers or other persons is not covered, nor is any other consequential loss. However, if the suspension of operations (a defined term; see Businessowners Property Coverage, Part II) causes a suspension or cancellation of a license, lease, or contract, then such resulting loss is not reached by the exclusion.
The definition of suspension reinforces the coverage provision—a business need not grind to a halt to trigger coverage; rather, normal business activities may be slowed because of a covered loss.
The 2010 form added verbiage that if a suspension, lapse, or cancellation of a license, lease, or contract is directly caused by the suspension of operations, the loss will be covered during any extension of the period of restoration, which represents a broadening of coverage.
6.Accounts Receivable Exclusion
The following additional exclusion applies to the Accounts Receivable Coverage Extension:
We will not pay for:
a.Loss or damage caused by or resulting from alteration, falsification, concealment or destruction of records of accounts receivable done to conceal the wrongful giving, taking or withholding of "money", "securities" or other property.
This exclusion applies only to the extent of the wrongful giving, taking or withholding.
b.Loss or damage caused by or resulting from bookkeeping, accounting or billing errors or omissions.
c.Any loss or damage that requires any audit or records or any inventory computation to prove its factual existence.
Analysis
A group of additional exclusions applies only to accounts receivable. In the earlier forms, these (as well as other) exclusions applied to both accounts receivable and valuable papers and records. But in the current BP 00 03, there is coverage for computers, and the definition of valuable papers and records was changed to include electronic data. The exclusions that previously applied to valuable papers and records are now incorporated as exclusions B.2.m., B.2.n., and B.2.o., which all apply to computer-related loss.
As noted earlier, we are not following the form exactly. Loss payment and general property conditions are discussed elsewhere. See Businessowners Property Coverage, Part II.
G. Optional Coverages
If shown as applicable in the Declarations, the following Optional Coverages also apply. These coverages are subject to the terms and conditions applicable to property coverage in this policy, except as provided below:
1.Outdoor Signs
a.We will pay for direct physical loss of or damage to all outdoor signs at the described premises:
(1)Owned by you; or
(2)Owned by others but in your care, custody or control.
b.Paragraph A.3., Covered Causes Of Loss and Section B., Exclusions in Section I – Property do not apply to this Optional Coverage, except for:
(1)Paragraph B.1.c., Governmental Action;
(2)Paragraph B.1.d., Nuclear Hazard; and
(3)Paragraph B.1.f., War And Military Action.
c. We will not pay for loss or damage caused by or resulting from:
(1)Wear and tear;
(2)Hidden or latent defect;
(3)Rust;
(4)Corrosion; or
(5)Mechanical breakdown.
d.The most we will pay for loss of or damage in any one occurrence is the Limit Of Insurance for Outdoor Signs shown in the Declarations.
e.The provisions of this Optional Coverage supersede all other references to outdoor signs in this policy.
Analysis
Outdoor signs attached to buildings are covered as part of the building. Signs not attached are covered under the extension of coverage for outdoor property up to $2,500. If more coverage for signs is necessary, the optional coverage for outdoor signs provides special perils coverage for the selected limit of insurance. Certain exclusions—war and latent defect, for example—apply.
2.Money And Securities
a.We will pay for loss of "money" and "securities" used in your business while at a bank or savings institution, within your living quarters or the living quarters of your partners or any employee (including a temporary or leased employee) having use and custody of the property, at the described premises, or in transit between any of these places, resulting directly from:
(1)Theft, meaning any act of stealing;
(2)Disappearance; or
(3)Destruction.
b.In addition to the Limitations and Exclusions applicable to Section I – Property, we will not pay for loss:
(1)Resulting from accounting or arithmetical errors or omissions;
(2)Due to the giving or surrendering of property in any exchange or purchase; or
(3)Of property contained in any "money"-operated device unless the amount of "money" deposited in it is recorded by a continuous recording instrument in the device.
c.The most we will pay for loss in any one occurrence is:
(1)The limit shown in the Declarations for Inside the Premises for "money" and "securities" while:
(a)In or on the described premises; or
(b)Within a bank or savings institution; and
(2)The limit shown in the Declarations for Outside the Premises for "money" and "securities" while anywhere else.
d.All loss:
(1)Caused by one or more persons; or
(2)Involving a single act or series of related acts;
is considered one occurrence.
e.You must keep records of all "money" and "securities" so we can verify the amount of any loss or damage.
3. Employee Dishonesty
a.We will pay for direct loss of or damage to Business Personal Property and "money" and "securities" resulting from dishonest acts committed by any of your employees acting alone or in collusion with other persons (except you or your partner) with the manifest intent to:
(1)Cause you to sustain loss or damage; and also
(2)Obtain financial benefit (other than salaries, commissions, fees, bonuses, promotions, awards, profit sharing, pensions or other employee benefits earned in the normal course of employment) for:
(a)Any employee; or
(b)Any other person or organization.
b.We will not pay for loss or damage:
(1)Resulting from any dishonest or criminal act that you or any of your partners or "members" commit whether acting alone or in collusion with other persons.
(2)Resulting from any dishonest act committed by any of your employees (except as provided in Paragraph a.), "managers" or directors:
(a)Whether acting alone or in collusion with other persons; or
(b)While performing services for you or otherwise.
(3)The only proof of which as to its existence or amount is:
(a)An inventory computation; or
(b)A profit and loss computation.
(4) Caused by an employee if the employee had also committed theft or any other dishonest act prior to the effective date of this policy and you or any of your partners, "members", "managers", officers, directors or trustees, not in collusion with the employee, learned of that theft or dishonest act prior to the policy period shown in the Declarations.
c.The most we will pay for loss or damage in any one occurrence is the Limit Of Insurance for Employee Dishonesty shown in the Declarations.
d.All loss or damage:
(1)Caused by one or more persons; or
(2)Involving a single act or series of acts;
is considered one occurrence.
e.If any loss is covered:
(1)Partly by this insurance; and
(2)Partly by any prior cancelled or terminated insurance that we or any affiliate had issued to you or any predecessor in interest;
the most we will pay is the larger of the amount recoverable under this insurance or the prior insurance.
We will pay only for loss or damage you sustain through acts committed or events occurring during the policy period. Regardless of the number of years this policy remains in force or the number of premiums paid, no Limit of Insurance cumulates from year to year or period to period.
f.This Optional Coverage is cancelled as to any employee immediately upon discovery by:
(1)You; or
(2)Any of your partners, "members", "managers", officers or directors not in collusion with the employee;
of any dishonest act committed by that employee before or after being hired by you.
g.We will pay only for covered loss or damage sustained during the policy period and discovered no later than one year from the end of the policy period.
h.If you (or any predecessor in interest) sustained loss or damage during the period of any prior insurance that you could have recovered under that insurance except that the time within which to discover loss or damage had expired, we will pay for it under this Optional Coverage, provided:
(1)This Optional Coverage became effective at the time of cancellation or termination of the prior insurance; and
(2)The loss or damage would have been covered by this Optional Coverage had it been in effect when the acts or events causing the loss or damage were committed or occurred.
i.The insurance under Paragraph h. above is part of, not in addition to, the Limit of Insurance applying to this Optional Coverage and is limited to the lesser of the amount recoverable under:
(1)This Optional Coverage as of its effective date; or
(2)The prior insurance had it remained in effect.
j.With respect to the Employee Dishonesty Optional Coverage in Paragraph G.3., employee means:
(1)Any natural person:
(a)While in your service or for 30 days after termination of service;
(b)Who you compensate directly by salary, wages or commissions; and
(c)Who you have the right to direct and control while performing services for you:
(2)Any natural person who is furnished temporarily to you:
(a)To substitute for a permanent employee, as defined in Paragraph (1) above, who is on leave; or
(b)To meet seasonal or short-term work load conditions:
(3)Any natural person who is leased to you under a written agreement between you and a labor leasing firm, to perform duties related to the conduct of your business, but does not mean a temporary employee as defined in Paragraph (2) above;
(4)Any natural person who is a former employee, director, partner, member, manager, representative or trustee retained as a consultant while performing services for you; or
(5)Any natural person who is a guest student or intern pursuing studies or duties, excluding, however, any such person while having care and custody of property outside any building you occupy in conducting your business. But employee does not mean:
(1)Any agent, broker, factor, commission merchant, consignee, independent contractor or representative of the same general character; or
(2)Any "manager", director or trustee except while performing acts coming within the usual duties of an employee.
Analysis
The amount of coverage for money and securities is shown on the declarations as separate limits for inside and outside the premises. Theft, disappearance, or destruction of money or securities are covered. When the BP 10 09 is attached this is not one of the optional coverages; the available coverage is burglary and robbery, which provides limited coverage for money and securities. See Businessowner Program Endorsements.
Insureds may purchase the employee dishonesty option to cover loss or damage to business personal property, including money and securities, that results from dishonest acts of employees. Limits of $5,000, $10,000, $25,000, $50,000, or $100,000 per occurrence are available. The wording of this coverage has was revised in the 2002 edition, although the coverage is substantially the same as in the earlier forms. Before, the trigger for coverage was a single act or series of related acts; the word related has been deleted because many court decisions have construed each act of an employee to be a separate occurrence. Now, the wording "single act or series of acts" should give the coverage intent. Also, the defined words members and managers have been added to reflect that a limited liability company may be insured.
The 2013 form added paragraph 3.b.(4) in response to the ruling in Home Sav. Bank, SSB v. Colonial American Cas. and Sur. Co., 598 S.E.2d 265 (N.C. Ct. App. 2004). The paragraph was added to address employees' acts that the insured learned about prior to the policy period.
In the 2006 form, ISO added subparagraph j. to provide a definition of employee in relation to employee dishonesty coverage. Agents, brokers, factors, commission merchants, consignees, independent contractors, similar representatives, and managers, directors, and trustees acting within the normal duties of their employment are not considered employees.
a.We will pay for direct loss of or damage to Covered Property caused by or resulting from a mechanical breakdown or electrical failure to pressure, mechanical or electrical machinery and equipment.
Mechanical breakdown or electrical failure to pressure, mechanical or electrical machinery and equipment does not mean any:
(1)Malfunction including but not limited to adjustment, alignment, calibration, cleaning or modification;
(2)Leakage at any valve, fitting, shaft seal, gland packing, joint or connection;
(3)Damage to any vacuum tube, gas tube, or brush; or
(4)The functioning of any safety or protective device.
b.Paragraphs A.4.a.(1) and A.4.a.(2), Limitations, do not apply to this Optional Coverage.:
c.With respect to the coverage provided by this Optional Coverage, the following exclusions in Paragraph B. Exclusions do not apply:
(1)Paragraph B.2.a., Electrical Apparatus;
(2)Paragraph B.2.d., Steam Apparatus; and
(3)Paragraph B.2.l.(6), Mechanical Breakdown.
d.With respect to the coverage provided by this Optional Coverage, Paragraph G.1.c.(5) of the Outdoor Sign Optional Coverage does not apply.
e.If a dollar deductible is shown in the Declarations for this Optional Coverage, we will first subtract the applicable deductible amount from any loss we would otherwise pay. We will then pay the amount of loss in excess of the applicable deductible up to the applicable limit for this coverage.
If no optional deductible is chosen for this Optional Coverage, the Property Deductible shown in the Declarations applies.
f. With respect to Additional Coverages 5.f. Business Income and 5.g. Extra Expense, if the 72-hour time period in the definition of "period of restoration" (hereinafter referred to as time deductible) is amended for this Optional Coverage as shown in the Declarations, we will not pay for any Business Income loss that occurs during the consecutive number of hours shown as the time deductible in the Declarations immediately following a mechanical breakdown or electrical failure. If a time deductible is shown in days, each day shall mean 24 consecutive hours.
With respect to the coverage provided by this Optional Coverage, any time deductible shown in the Declarations for Equipment Breakdown Protection Coverage supersedes any time deductible otherwise applicable to the Business Income coverage provided by this policy.
g.With respect to the coverage provided by this Optional Coverage, Paragraph H. Property Definitions is amended as follows:
1."Computer" means:
a.Programmable electronic equipment that is used to store, retrieve and process data; and
b. Associated peripheral equipment that provides communication, including input and output functions such as printing and auxiliary functions such as data transmission.
"Computer" includes those used to operate production-type machinery or equipment.
h.Whenever any covered pressure, mechanical or electrical machinery and equipment is found to be in, or exposed to, a dangerous condition, any of our representatives may suspend coverage provided by this Optional Coverage for loss from a mechanical breakdown or electrical failure to that pressure, mechanical or electrical machinery and equipment. However, coverage provided by this Optional Coverage may be reinstated for loss from a mechanical breakdown or electrical failure to that pressure, mechanical or electrical machinery and equipment if the reasons for the suspension are found by any of our representatives to no longer exist. We may suspend or reinstate this Optional coverage by mailing or delivering a written notification regarding the suspension or reinstatement to:
(1)Your last known address; or
(2)The address where the pressure, mechanical or electrical machinery and equipment is located.
This notification will indicate the effective date of the suspension or reinstatement.
If the coverage provided by this Optional Coverage is not reinstated, you will get a pro rata refund of premium. But the suspension will be effective even if we have not yet made or offered a refund.
Analysis
In the 2010 form, ISO incorporated many of the provisions from the Equipment Breakdown Coverage Protection endorsements, BP 04 59, which has been withdrawn. The mechanical breakdown optional coverage has been deleted from the form.
If the insured purchases this optional coverage to replace BP 04 59, there is no broadening of coverage; however, if the insured buys this coverage to replace the former mechanical breakdown optional coverage, there could be a broadening of coverage.
Limitations relating to steam boilers, steam pipes, steam engines, steam turbines, hot water boilers, or other water heating equipment do not apply to this coverage. Exclusions relating to electrical apparatus, steam apparatus, and mechanical breakdown also do not apply.
A fixed dollar deductible option is available as well as an option to increase the seventy-two hour time period in the period of restoration definition for business income and extra expense in regards to equipment protection.

