Negotiating Terms Beyond Standard Forms

A recent decision of the British Columbia Supreme Court (Surespan Structures Ltd. v. Lloyds Underwriters, 2020 BCSC 27) confirms that when insurance companies negotiate the terms of a policy beyond their standard forms or precedents, they must beware of failing to follow a pattern of express reference.

A pattern of express reference exists where throughout a contract, a pattern can be discerned where the drafter expressly states a certain limit or other item. When this pattern exists, if there are places where the limit or item is not expressly referred to, then it is considered to have been left out on purpose.

In this case, a company called Graham Design was subcontracted to provide services through a design-build contract which required Graham Design to obtain project specific professional liability insurance that would cover all consultants providing services to Graham Design.