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Liability/Insurance question

Discussion in 'Business Fundamentals' started by ratorrey, Jan 4, 2009.

  1. ratorrey

    ratorrey Junior Member
    from Maine
    Messages: 13

    I have been reading these threads concerning bidding and several have mentioned Commercial insurance and Liability issues. Am I correct in assuming, If I charge someone to plow a residential driveway and there is a slip and fall or other type of injury that I could be held liable? Do you all have people sign a liability release? Do you require that all of your customers are salted/sanded? I guess I should also ask, what is standard in a plow agreement? I am assuming a verbal agreement saying " I will plow your drive for xxxx dollars" is not in ones best interest.
  2. naturalgreen

    naturalgreen Senior Member
    Messages: 404

    i have a pretty good contract there r some on here as examples
    i put an indemnity waiver that says any slip and fall is prop owners prob and i only coveer the damage i cause
    most of my customers get salting or icemelt
  3. Mick

    Mick PlowSite.com Veteran
    from Maine
    Messages: 5,546

  4. eshskis

    eshskis Senior Member
    from 4
    Messages: 138

    Liability releace WHAT?????

    how does a commerical bulidging owner get the athority to sign away someone elses rights to injury litagation becouse they slipped on his property.?

    So you slip and fall in the walmart parking lot but becouse walmart signed a waiver a liability releace you can't sue walmart AND the plow guy,

    scary ....just that thought sink in for a minute.........
  5. heather lawn spray

    heather lawn spray PlowSite.com Addict
    Messages: 1,206

    hold harmless ageement

    If somebody slips and sues you, you can't sue Walmart in turn and say it's not your fault, it's Walmarts fault. Somebody can sue anybody they like.
    see Mick above for further discussion

    You can't contract out of neglience.

    'I know I left the parking lot looking like hell froze over but nothing is my fault 'cause it says so in the contract'

    doesn't wash with the courts

    a release

    is signed by the agrieved (injuried) party, the somebody, usually in return for a settlement, a payment.

    ' OK I'll stop suing you if you pay me what we agreed on' this will end the matter
    Last edited: Feb 14, 2009
  6. PA-plow-at-home

    PA-plow-at-home Member
    Messages: 59

    Yes and Maybe. If somebody slips and falls on a driveway that you plowed, it is very possible that you would be targeted. The person who falls would be called the plaintiff. If the plaintiff files suit against you, then yes, you might be found liable. But maybe you (through your defense lawyer, that your insurance company provides for you) should join/implead the homeowner into the lawsuit, saying that if you're found liable, then the homeowner is liable. This is sometimes called a cross-claim.
    If the plaintiff sues just the homeowner, its likely that the homeowner will join/implead you into the lawsuit, etc.
    How do you deal with that? Read on...

    The word release is not proper in this context. But I know what you're getting at. You're really asking if you should have the homeowner sign a plowing contract that has indemnification language in it. And the answer is Yes, if the homeowner is not purchasing the salting, etc. Because an unsalted (or treated) driveway, after its plowed, is more ripe for a fall-down than an unplowed driveway.
    Sometimes the agreement language is called contractual indemnification. The word "indemnification" means paying for something. The whole idea of an insurance policy is that the insurer will defend and "indemnify" (pay for claims against) you.
    Your contract with the homeowner (assuming they'll agree to sign it) should say that the homeowner agrees to defend and indemnify the snow removal / plow operator [insert your name or company name] for any and all claims, lawsuits, and losses, arising from any accidents that occur on or around the plowed areas.
    Now, if the homeowner buys your salting/treating services, its a much more complicated matter, and frankly under those circumstances the homeowner should not sign your contract with the indemnification language unless the wording makes sense for them. I can delve into that language, but this is already getting too long. Maybe we can get into further detail later.
    In short, the end result should be that you and the homeowner should each be agreeing to defend and indemnify the other for any claims or lawsuits that arise from their own negligence, but not for the negligence of the other. If the homeowner doesn't purchase your salting, and doesn't salt the driveway themselves, then the homeowner was negligent. Get the point?...

    That would be a good idea, because as mentioned above, if the homeowner doesn't purchase your salting, and doesn't salt the driveway themselves, then the homeowner might be found negligent, and you should not be found negligent/liable.

    Correct. Besides the issue being discussed, which pertains to your questions about contractual indemnification, there is another issue for which your verbal contract has opened you up to potential problems, which is what if you get into a fight with a customer over what the verbal agreement was? You recall that the agreement was to plow, for $50, each time the snow was deeper than 2-inches. But the customer says the verbal agreement was $25, or was for anything 4-inches or deeper, etc, etc. The "he said, she said" situations are losers for everybody. Get it in writing; even if its handwritten on a napkin, and only one sentence long, with a signature. That still beats a verbal contract.

  7. QuadPlower

    QuadPlower PlowSite.com Addict
    Messages: 1,056

    You HAVE to have a contract with any body that you are doing any work for for money. Even if it is as simple as "I will plow your driveway for $25 with a 2" trigger." signed and signed.

    There are very few cases of slip and falls getting a judgement. The person has to prove that you were neglegant in not removing snow and ice. Around here the judge assumes that a person knows it is slippery out when it has snowed and that they should use caution.

    If on the other hand you don't perform your contract obligations, such as having the lot cleared by 8:00 a.m. and someone crashes their car because of it, then you could be in trouble.

    Find a good contract, have a lawyer look it over, and use it for EVERY customer.
  8. Runner

    Runner Senior Member
    Messages: 957

    Our agreement is rather the exact opposite of that. Our agreement was drawn up by our attorney (actually, a partner who deals in personal injury) and contains a hold harmless clause that is agreed to (by contract acceptance signature) by the property management. This states that myself AND/OR the (my) company (fully named in the agreement) assumes no liability or responsibility for what is referred to "ever present conditions brought on by anticipated and unanticipated changing seasonal weather and acts of nature".
    As my attorney said. Can I be sued? Sure I can...Will it hold in court? No. The property management would take the suit. It is like he said...They would essentially be informed they are pursuing the wrong party.
  9. PA-plow-at-home

    PA-plow-at-home Member
    Messages: 59

    Just for clarification, for those reading this who may not be hiring a lawyer to write up their agreements, its important to note that Runner's attorney probably included more language (and imporant stuff) that Runner didn't mention.
    If you just say the you "assume no liability" etc, that does almost nothing.
    You can and will get sued by injured people if you do enough jobs. The key to avoiding the liability is to have somebody else "defend and indemnify" you. So those magic words need to go into your agreements.

    As an aside, its important for everybody to know a secret about lawyers. A lot of them don't know what they're doing, so don't trust everything they tell you and everything they write. Listen and read. And make sure YOU understand what is being said or written. And make sure that it makes sense to you, so that you are able to couble check their work.
    If you rely on your attorney to do everything correctly, many of you will find that you'll eventually have problems.
    I'm not saying that you shouldn't go to lawyers. Many times you should. But just keep your wits about you. Don't go in and assume that every lawyer knows how to deal with everything. They don't.

    Good luck out there.
  10. Mick

    Mick PlowSite.com Veteran
    from Maine
    Messages: 5,546

    Agreed. Particularly the "defend and indemnify you" part. In addition to the "secret" about lawyers, the secret also applies to insurance agents. I've "educated" a commercial agent (yes, she specialized in commercial insurance) twice on points regarding insurance relating to plowing snow.
  11. PA-plow-at-home

    PA-plow-at-home Member
    Messages: 59

    Mick is absolutely correct about the insurance agents.
    Many of them do not know what they're talking about. People should not put such blind trust in them. People need to learn the issues themselves, and make informed and educated decisions.

    Some insurance agents simply don't know how to do anything but sell, and others will purposely lie to you.
    Most people don't realize that insurance agents want to sell insurance, but they don't want any claims against the policies that they've sold (so they'll pick and choose what they really want to sell to you) because those claims affect something called their "loss ratios". Why does that matter? Because their bonuses or commissions will be reduced or eliminated based on those "loss ratios".

    For anybody reading this, make sure that you educate yourself on insurance coverages available to you, and understand the consequences of purchasing or not purchasing any of those coverages. Do NOT rely on your insurance agent to give you the straight answers, because there is half a chance that he or she either won't know the correct answers and they'll simply make something up, or they'll outright lie to you.
    On a positive note, there are some insurance agents who know what they're doing and will tell you the truth 100% of the time. Unfortunately, those good agents are rare.
    Last edited: Mar 3, 2009