By: Brad Berkman, Esq., and Louis J. Terminello, Esq.
The wine-making experience is often sublime, requiring the best attributes of the artist. Sometimes, however, it is essential to call on the practical among us. In this instance, at least, I am referring to the insurance broker along with the versed attorney who can assist in advising on insurance policies that manage and limit the winemakers (“Suppliers”) risk (it’s worth noting that these recommendations are applicable to all producers of beverage alcohol as well as distributors). Of course, this article is written by an alcohol beverage attorney, so its main objective is to make this publication’s readers aware of recommended areas of coverage for production and distribution relationships and agreements, as well as in the context of the contract packaging relationship.
In simple terms, business insurance is essential for managing risk and protecting a business against economic loss. Wine is obviously a consumable good, and risk exposure occurs from the production facility through the distribution chain and ultimately, to the consumers’ table. It is advisable that the producer ensure that it, and its partners down the distribution chain, have adequate insurance guarantees that are memorialized as obligations in the various agreements that the Supplier may enter.
General Contractual Provisions
Insurance terms and their requirements can be confusing to those unfamiliar with them. As an exercise in clarification, below is a sample of insurance provisions that may appear in a Supplier/distributor agreement with terms that may be known to the reader, but little understood. First, read the following:
- Supplier Insurance: Producer will maintain: (1) primary products liability coverage totaling at least $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, on an occurrence and (2) commercial general liability insurance of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate. Producer will give Distributor at least 30 days’ advance written notice of cancellation, nonrenewal, or material change in the terms of the liability policy. All policies shall name Distributor as an additional insured party.
- Distributor Insurance: Distributor shall maintain Commercial General Liability Insurance and Product Liability Insurance in such an amount as is commercially reasonable but not less than the coverage amounts stated in the paragraph above. Within ten days of the effective date of this Agreement, Distributor will provide to Brand Owner an original certificate of insurance evidencing such insurance and these terms and thereafter will provide Brand Owner with each certificate of renewal, within ten days of the effective date of renewal.
What Stands Out?
Obviously, the reader will notice that the insurance provisions are reciprocal and that both the Supplier and distributor have insurance obligations. Additionally, both parties are named as additionally insured on the other party’s insurance policy. The additionally insured party is not the policyholder but is added to the policy, and the policy’s protections are extended to the additionally insured, covering them for the risks of the policyholders’ activities. In our example, additional insurance provides the distributor with protection against a Supplier risk event, and the producer is protected against a risk event associated with the distributor. This begs the question, what are the party’s insurance policies covering in the above clauses?
