COMPARE: CG 00 35–RAILROAD PROTECTIVE LIABILITY COVERAGE FORM TO CG 00 01–COMMERCIAL GENERAL LIABILITY COVERAGE FORM

(November 2022)

INTRODUCTION

Insurance Services Office (ISO) CG 00 35–Railroad Protective Liability Coverage Form and CG 00 01–Commercial General Liability Coverage Form (CGL) provide similar coverage. A side-by-side comparison can assist in determining when it is appropriate to use each coverage form. CG 00 35 was developed to apply to single, specific situations. CG 00 01 covers a wide range of exposures.

Note: The introductory language in both coverage forms is identical.

SECTION I–COVERAGES

CG 00 35 insures only bodily injury and property damage liability and physical damage to railroad property. CG 00 01 covers personal and advertising injury liability, medical payments, bodily injury and property damage liability. However, it does not insure physical damage to owned property. CG 00 35 does not cover personal and advertising injury liability or medical expenses coverages, except in cases of negligence or first aid rendered.

COVERAGE A–BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

Subparagraph a. is near identical in both coverage forms. However, under CG 00 35, Supplementary Payments apply to only Coverage A. Supplementary Payments also applies to Coverage B, Personal and Advertising Injury Liability in CG 00 01.

Subparagraph b. is more limited in CG 00 35. Coverage applies to only bodily injury or property damage that occurs during the policy period that arises out of acts or omissions at the job location related to or in conjunction with the work described on the declarations. CG 00 35 does not refer to coverage territory as CG 00 01 does because it covers only a specific job. CG 00 35 also does not refer to losses that occurred prior to the coverage inception date because coverage applies to only a specific job.

Subparagraph c. in CG 00 35 is identical to subparagraph e. in CG 00 01 and clarifies that damages because of bodily injury extends to amounts that any party claims for care, loss of services, or death that are connected to a given incident of bodily injury.

Subparagraphs c. and d. in CG 00 01 that address losses that occurred before the inception date and clarification of when the insured is first aware that a loss has occurred do not appear in CG 00 35.

The result is that the coverage found in form CG 00 35 is considerably narrower than what the CG 00 01 provides. This makes sense because the coverage provided is not more than needed for the specific project or job that involves the railroad and contractor. This is especially important because the contractor pays the premium and does not want to pay any more premium than necessary to comply with the specific contractual arrangement with the railroad.

2. Exclusions

These exclusions in both coverage forms are identical:

• Expected or Intended Injury
• War

These exclusions appear only in form CG 00 01:

• Liquor Liability
• Employers’ Liability
• Aircraft, Auto, or Watercraft
• Mobile Equipment
• Damage to Property
• Damage to Your Product
• Damage to Your Work
• Damage to Impaired Property or Property Not Physically Injured
• Recall Of Products, Work, or Impaired Property
• Personal and Advertising Injury
• Electronic Data
• Recording and Distribution of Material in Violation of Statutes

Note: These exclusions are not in CG 00 35 because that form restricts coverage to the operations and the contractor listed on the Insuring Agreement.

These exclusions are in both coverage forms, subject to certain differences:

• Contractual Liability

The only difference between the two coverage forms is that the exception to the exclusion in CG 00 35 is limited to liability for damages assumed in a contract or agreement that meets the definition of a covered contract.

• Workers Compensation and Similar Laws

The exclusion is identical in both coverage forms except that CG 00 35 states that it does not apply to any obligation of the insured under the Federal Employers Liability Act.

• Pollution

The only significant difference between the two coverage forms is that the exclusion in CG 00 35 applies to the single specific job location and refers to the contractor or contractors that work directly or indirectly on the insured's behalf. The corresponding exclusion in CG 00 01 has more exceptions that make it somewhat less restrictive compared to CG 00 35.

These exclusions are in only CG 00 35:

• Completed Work

This exclusion states that coverage ends when the work the contractor does for the named insured is completed or put to its intended use by the insured, a governmental authority, or another contractor. However, it does not apply to bodily injury or property damage due to the presence or removal of tools, uninstalled equipment, or abandoned or unused materials at the jobsite.

• Acts or Omissions of Insured

This exclusion applies to bodily injury or property damage caused by acts or omissions of any insured, other than those of any of their designated employees.

• Damage to Owned, Leased, or Entrusted Property

Coverage does not apply to property damage to property owned by or leased or entrusted to the named insured under a trust or lease agreement.

COVERAGE B–PHYSICAL DAMAGE TO PROPERTY

This coverage is unique to CG 00 35. The insurance company pays for physical damage to property this insurance covers. The damage must occur during the policy period, result from acts or omissions at the designated job location, and relate to the work described on the declarations. Coverage applies to only property owned by, leased to or entrusted to the named insured under a lease or trust agreement.

SUPPLEMENTARY PAYMENTS

The supplementary payments are identical in both coverage forms with three important exceptions.

• CG 00 35 does not include item b. in CG 00 01 that applies to bail bonds due to accidents or traffic law violations that arise out of using motor vehicles.
• CG 00 35 pays expenses the insured incurs for first aid administered to others at the time of an accident for bodily injury this insurance covers. This provision is added because CG 00 35 does not cover medical expenses.
• CG 00 35 does not include any defense coverage for the insured's indemnitees like CG 00 01 does because CG 00 35 does not permit additional insureds.

SECTION II–WHO IS AN INSURED

There are significant differences between the two coverage forms. CG 00 35 includes only four different parties as insureds compared to the numerous entities CG 00 01 includes to varying degrees. This aligns with form CG 00 35’s narrow focus and coverage. The parties it includes as insureds are the following:

• The railroad listed on the declarations
• The railroad's executive officers and directors, limited to their duties as officers and directors
• The railroad's stockholders, limited to their liability as stockholders
• Any railroad that operates over the insured railroad's tracks

SECTION III–LIMITS OF INSURANCE

This section is similar in both coverage forms with respect to two items and very different with respect to the rest.

• Paragraph 1. in both coverage forms is identical.
• Paragraph 2. in CG 00 35 refers to the Aggregate Limit instead of the General Aggregate Limit in CG 00 01 that distinguishes it from the Products-Completed Operations Aggregate Limit. In addition, the Aggregate Limit in CG 00 35 is the most that may be paid for the total of all damages for all bodily injury, property damage, and physical damage to property. The General Aggregate Limit in CG 00 01 is the most that may be paid for the total of medical expenses under Coverage C, damages for bodily injury and property damage under Coverage A (except those that the products-completed operations hazard includes), and damages under Coverage B, Personal and Advertising Injury Liability.
• Paragraph 3. in CG 00 35 states that the Each Occurrence Limit is the most that may be paid for the total of all damages for all bodily injury, property damage, and physical damage to property that arises out of one occurrence, subject to the Aggregate Limit. The Each Occurrence Limit in CG 00 01 is the most that may be paid for the total of damages under Coverage A and medical expenses under Coverage C because of all bodily injury and property damage that arises out of any one occurrence.
• Paragraph 4. in CG 00 35 states that payment for physical damage to property is not more than the smaller of the property’s actual cash value at the time of loss or the cost to repair or replace the property with similar property, subject to the Each Occurrence Limit. CG 00 01 does not have a similar or corresponding limit of insurance because it does not provide this coverage.
• The paragraph that addresses application of limits to policy periods is identical in both coverage forms.

Note: CG 00 35 does not refer to Personal and Advertising Injury, Products-Completed Operations Aggregate, Damage to Premises Rented to You, and Medical Expenses because it does not provide these coverages.

SECTION IV–CONDITIONS

A major difference between the two coverage forms is that CG 00 35 does not use IL 00 17–Common Policy Conditions because it includes those conditions. As a result, the following conditions are essentially the same in both forms when IL 00 17 is attached to CG 00 01:

• Bankruptcy
• Changes
• Legal Action Against Us
• Duties in the Event of Occurrence, Claim, or Suit (applies to only Coverage A in CG 00 35)
• Separation of Insureds (applies to only Coverage A in CG 00 35)
• Transfer of Rights of Recovery Against Others to Us
• When We Do Not Renew
• Inspections and Surveys

These conditions appear only in form CG 00 01 with form IL 00 17 attached:

• Representations
• Transfer of Your Rights and Duties Under This Policy
• Examination of Your Books and Records
• Premium

These conditions appear only in form CG 00 35:

• Assignment Appraisal
• No Benefit to Bailee
• Insured's Duties in the Event of Loss
• Payment of Loss

These conditions appear in both coverage forms (differences are noted):

• Other Insurance

The insurance CG 00 35 provides is primary. The insurance company does not pursue contribution from other insurance unless a different contractor than the one on the declarations provides it for the same operation or job location.

If other available insurance permits contribution by equal shares, CG 00 35’s coverage applies on the same basis. Each contributes equal amounts until the loss is paid or its limit is used up, whichever occurs first. If not, contribution is based on limits, where each insurance company's share is determined by the ratio of its limit to the total of all available insurance limits.

Note: While this approach is similar to its peer provision in CG 00 01, the wording in CG 00 35 does not refer to excess insurance.

• Premium and Premium Audit

This is similar to the combination of Premium Audit in CG 00 01 and Premiums in IL 00 17. CG 00 35 states that contract cost is the premium basis and defines it as the total cost of the operations described on the declarations. The steps in the audit process are quite similar. However, form CG 00 35 states that the contractor on the declarations must maintain the records needed for performing a premium audit use and to pay the resulting premium. It also clearly states that premium payment is not the named insured railroad's obligation.

• Cancellation

Referring to the subparagraphs in this condition in CG 00 35 and comparing them to equivalent subparagraphs in IL 00 17:

• Subparagraph a. in CG 00 35 is essentially the same as subparagraph 1. in IL 00 17.
• Subparagraph b. in CG 00 35 basically combines subparagraphs 2. and 3. in IL 00 17. However, in CG 00 35, all parties on the declarations receive copies of the cancellation notice and it must be dated at least 60 days before the date that cancellation takes effect.
• Subparagraph c. in CG 00 35 is the same as subparagraph 4. in IL 00 17.
• Subparagraph d. in CG 00 35 is similar to subparagraph 5. in IL 0017, except that form CG 00 35 does not specify the party that receives any unearned premium. IL 00 17 states that the first named insured receives any refunds due.

Note: CG 00 35 refers to any return premium as unearned premium. IL 00 17 refers to it as premium refund due.

• Subparagraph e. in CG 00 35 is the same as subparagraph 6. in IL 00 17.

SECTION V–DEFINITIONS

The definitions for these terms are identical in both coverage forms:

• Bodily Injury
• Executive Officer
• Hostile Fire
• Pollutants
• Suit

This term appears in both forms, but with different definitions.

Property Damage under form CG 00 01 contains a reference and definition of electronic data which does not appear in form CG 00 35.

The definitions for these terms appear only in form CG 00 01:

• Advertisement
• Auto
• Coverage Territory
• Employee
• Impaired Property
• Insured Contract
• Leased Worker
• Loading or Unloading
• Mobile Equipment
• Occurrence
• Personal and Advertising Injury
• Products-Completed Operations Hazard
• Temporary Worker
• Volunteer Worker
• Your Product
• Your Work

The definitions for these terms appear only in form CG 00 35:

• Contractor
• Covered Contract
• Job Location
• Physical Damage to Property
• Work
• Your Designated Employee