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Vol. 5, Iss. 10
October 12, 2016

OCIP! I’m Not Covered! (Case Involving The “You” And “Your” Issue)


TNT Equipment, Inc. v. Amerisure Mutual Ins. Co., No. 15-1461 (M.D. Fla. Sept. 21, 2016) involves the applicability of an OCIP exclusion in a commercial general liability policy. But the real story is that the decision addresses the “you” and “your” issue. In other words, whether the terms “you” and “your,” which are usually defined in a CGL policy to mean the Named Insured, will be given that strict meaning. If so, then an “additional insured,” or some other insured, who are not “yous” and “yours,” would not be subject to exclusions that are stated to apply to “you” or “your.”

TNT Equipment involves coverage for TNT for a suit filed against it for a construction site bodily injury. TNT leased a Mast Climber to a contractor on the project. TNT sought coverage, as an additional insured, under a CGL policy issued to a contractor, Stowell. The ins and outs of how that came to be are not important here.

The CGL insurer denied coverage to TNT on the basis that its policy contained an OCIP Exclusion, which provided as follows:

This insurance does not apply to “bodily injury” or “property damage” arising out of either your ongoing operations or operations included within the “products completed operations hazard” if such operations were at any time included within a “controlled insurance program” for a construction project in which you are or were involved. *** (emphasis added)

One of TNT’s arguments, against the applicability of the OCIP Exclusion, was that it only applied to the Named Insured. As TNT saw it, since the exclusion used the word “you,” which is a Named Insured, it did not apply to TNT, as a purported additional insured.

The court was not convinced. Not even close, stating: “TNT’s interpretation of the CGL Extension and OCIP Exclusion would have Amerisure cover claims arising from the operations of Stowell’s subcontractors and exclude claims arising from the operations of Stowell itself. TNT offers no legal authority or factual basis to disregard this apparent absurdity in determining the duty to defend.” In other words, the court saw it as an absurdity that an additional insured would get more coverage than a Named Insured.

What makes TNT Equipment interesting is that, while the court said that TNT is arguing for an absurd result, other courts have been willing to conclude that, when the terms “you” and “your” mean the Named Insured, an “additional insured,” or some other insured, is therefore not subject to exclusions that are stated to apply to “you” or “your.” Hence, an additional insured gets more coverage than the Named Insured.

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