Product Liability or Professional Indemnity ~ Which is Best for You?

In her article ‘Product Liability vs Professional Indemnity Which is Better for You?’ Maria Dawson sets out:

“One of the areas of greatest confusion is the difference between Professional Indemnity, General Liability and Product Liability Insurance. Professional Indemnity Insurance provides coverage for professionals (corporate or individual) for any negligent act, error or omission alleged to have occurred while in the performance of their professional activities and duties. It differs from General Liability and Product Liability Coverage in that the acts covered are those acts performed by an engineer, architect, doctor or attorney in rendering professional services to their clients. To better understand this coverage we will have a brief discussion below of Product Liability, Professional Indemnity and the application of the latter and how it functions.

A. Product Liability

Product Liability is the legal responsibility of a manufacturer to a consumer of its’ product. Liability arises out of the negligent manufacture of a product including defective or faulty workmanship, materials or components. It is a liability that arises from the failure of a manufacturer to properly manufacture, test or warn about its product and occurs when the product departs in a negligent manner from its intended function.

Product Hazards includes bodily injury or property damage arising out of the named insured’s products, but only if the bodily injury or property damage occurs away from the premises owned or leased by the named insured and after physical possession of the products have been relinquished to others and is in the stream of commerce.

Completed Operations includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Assured.

Excluded from General Liability and Product Liability Coverage is that negligence attributable to Professional Liability, which includes the services or consultations rendered negligently by architects, engineers, or other professionals.

B. Professional Indemnity

The Professional Indemnity Policy is designed to answer the professional services exclusion in the CGL/ Product Liability Policy. The Professional Indemnity Policy covers the negligent services of a professional to its client and covers an act of negligence, error or omission on the part of an assured in the execution of his professional activities. These professional activities usually include design, the drafting of specification, feasibility studies, calculations, maps and supervision of same by the insured professional.

Professional Indemnity, or Errors & Omissions, Insurance protects an insured, its employees and directors against liability arising from their professional negligence. It covers the Legal Liability to compensate a third party who has sustained injury, loss or damage created by the existence of a duty of care owed to third parties as a result of a negligent act, error or omission in the rendering of professional services by the assured.

In light of today’s increasingly litigious society, Professional Indemnity Insurance provides important protection for the professional assured.

Coverage attaches under the Professional Indemnity Policy as soon as the design for the products begins and provides protection for any professional negligent act, error or omission which would result in a claim by third parties.

C. Applicability of Professional Indemnity Coverage

In discussing the applicability of Professional Indemnity coverage, certain basics should be kept in mind.

Firstly, Professional Indemnity is a third-party coverage that is a liability cover, not a property cover, which is provided to the assured for the claims against the insured from third party claimants.

Secondly, while coverage attaches from the beginning of the design phase of the project, a claim will not be until after delivery of the product and the product has left the premises of the assured.

Coverage for liability which occurs in the assureds’ workplace must be found elsewhere, such as the General Liability, Builder’s or Contractor’s All Risk or Protection and Indemnity policies.

Thirdly, of course the claim must arise out of a failure in the professional services provided. There is some limited coverage afforded under the Professional Liability for faulty workmanship, materials and/or components. Also, included in the Product Liability cover would be any claim for defective materials or components, defect in manufacturing, or workmanship.

Fourthly, any inadvertent, non-intentional breach of a patent or copyright infringement is also covered under this policy.”

In its history of providing insurance services to its clients for over thirty years, Nausch Hogan & Murray has provided coverage for all areas of liability – both on land and at sea. On landside we provide our clients with a short discussion of the various forms of liability coverage available in the market place, in order for them to better judge which best suits their company’s needs.