Contractors are often required to name an architect, building owner or lender as an additional insured on their insurance. The insurer will do so, and assume the additional risk for a minimal or no charge. While there are some potential consequences for the contractor, most favor this extension of coverage without hesitation. Why shouldn’t they? After all, the point of the insurance is to transfer risk away from the insured.
With a Performance Bond, there is a similar situation with the Dual Obligee rider. This rider modifies the bond to include a party that was not named on the contract. An example of such a party is a lender to a borrower who owns property. The borrower has hired a contractor to work on the property. The Performance Bond that guarantees the contract has the property owner as the natural Obligee (the “owner” on the contract). The lender has an interest in the project and may therefore ask to be named as a Dual Obligee. Sureties will normally do this (and for no additional charge), but it is not without consequences for the contractor.
The Dual Obligee rider enables the lender to make a performance bond claim directly against the Surety – and thus creates additional risk for a potential loss on the bond. So why should the contractor care? (See Secret #1) Bonds are not insurance.
A surety relationship is more like banking than insurance. Like a lender not expecting a loan to result in a loss, a surety does not expect any bond claims or losses. Similar to a bank’s promissory note, a surety requires a General Indemnity Agreement (GIA) which is a hold harmless intended to prevent any financial loss to the surety if a claim occurs. Read this as “no risk transfer.”
So let’s go back to the Dual Obligee rider. All contractors are required to provide a GIA for their surety. So if the bond is extended to include the lender, and the risk for a bond claim or loss in increased, who assumes this risk? The answer, of course, is the surety plus the contractor. The nature of a Performance Bond is that the contractor, the “Principal,” always shares in the bond risk – both in their company and personally.
Summary: Adding additional insureds may seem like a freebie, but contractors should be cautious when adding Dual Obligees to a bond. Each obligee is another master they must please on their contract. Each one is a risk and a financial threat. Some entities must be added when requested such as a lender, the city or other entitled parties. Other times there is a feeding frenzy: “Let’s add everybody.”
If the surety fails to object or at least ask for justification as to why such parties must be added, the contractor should… because unlike insurance, on a bond the contractor assumes risk.