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Denying Liability in a contract?

Discussion in 'Commercial Snow Removal' started by Lynden-Jeff, Nov 27, 2007.

  1. Lynden-Jeff

    Lynden-Jeff PlowSite.com Addict
    Messages: 1,433


    I have a contract which has a similar paragraph as this in it:

    6. Indemnification. The owner shall indemnify, defend and hold harmless the contractor, its owners, employees and subcontractors from and against any and all claims, damages, reasonable attorneys’ fees, costs and expenses which the contractor incurs as a result of a claim or claims brought by the owner or any third party, arising out of any wrongdoing, negligence and/or breach of contract by the owner alleged or otherwise, or any Act of God, including but not limited to extraordinary weather conditions, that is related, in any manner whatsoever, to the premises or the owner’s involvement with the premises or the services, including but not limited to personal injuries resulting from slip and fall accidents.

    What is the point of a paragraph like this when its insurance that is going to cover the issue anyways. Is this to hold me as a COMPANY harmless vs going through insurance? Any elaboration would be great.

  2. basher

    basher PlowSite Fanatic
    from 19707
    Messages: 8,993

    Where did you get that?

    Judges hate confusing needlessly wordy documents.

    Some indemnification clauses are attempts to try to deny liability, but many are used to assure the owner is included as a named party to civil suits. By making the contracte indemnify the contractor they try to assure the contracte must take a defendants stance in any suit as opposed to the plaintiffs and stops the "owner" from filing suit themselves.

    HOWEVER you can not write a contract contradictory to the law. So regardless of how the contract's worded if the contracte has the legal right to sue you can't stop him. If he doen't have the right to sue he still can file, it's just easier to win.
  3. bribrius

    bribrius PlowSite.com Addict
    Messages: 1,609

    to fill space and make the person signing think its true. worthless beyond that.
  4. kcplowmata

    kcplowmata Senior Member
    from kc
    Messages: 174

    put it in your contract and hope they read it and if they do then hope they dont hold you responsible if something happens. we have that in our contract but its up to your state laws and finally a judge though. just my 2 cents
  5. basher

    basher PlowSite Fanatic
    from 19707
    Messages: 8,993

    All contracts include (or should include) an indemnification clause, that one's just a little :dizzy:

    Often they include the phrase "held liable for no more than cost of services provided." paraphrasing "If I run into your car, garage door, basketball post, etc...I'll plow your drive for free"

    If they are too denying, in other words they try to hold you totally harmless no matter the circumstance, they'll throw the whole thing out in a heartbeat

    Don't try to write legal gibberish yourself. Contract lawyers study for years to learn to write nonsensical babble that looks alone imply that you'd have to pay a lot of money to understand that it doesn't really mean a thing, it's just a pre-amble.

    No good contract is written so only Lawyers can understand them. If you don't understand parts of your contract don't use it until you have a lawyer, a member of the bar in your state, explain it to you in language you understand. If your lawyer can't do it get another lawyer that can.
  6. heather lawn spray

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

    This would mean that the contractor has no liability even if the contractor did it.

    Is this an owners contract or a contractors contract?

    This means that the owner is ok with anything that the contractor does including not showing up and leaving the place like an ice field.

    Did some owner actually sign this?

    I've seen this with the wording reversed. Every time you see owner read contractor. Every time you see contractor read owner

    The way this is worded every time the contractor screws up its the owner's fault.

    Nice life if you can get it
  7. big acres

    big acres Senior Member
    Messages: 653

    Not absolutely worthless...

    With too many words I think the paragraph is trying to state that if the property owner does not pay his bills, has service suspended, and incurs a slip-n-fall -then the owner is on the hook. Let's say the owner thinks your salting to much so he redefines the terms or says he will request when needed... then he is on the hook. Just my thoughts.

    We have wording in the description of our salt-service that basically states that we provide an auxilliary level of monitoring service to apply salt if we have been granted a level of discretion by the owner. BUT, this monitoring shall not replace the ultimate responsibility of the owner or his on-site personnel montitoring conditions as they may change rapidly.

    It may sound mumbo jumbo, but we were implicated in a slip and fall last year and released from the lawsuit due to having the mumbo jumbo in our contract.
  8. basher

    basher PlowSite Fanatic
    from 19707
    Messages: 8,993

    Again where did this come from? your contract, his contract, something a lawyer did for you?
  9. hickslawns

    hickslawns Senior Member
    Messages: 627

    Looks like a contractor sent this to a subcontractor to cover his own butt. Probably nothing to do with a customer.
  10. SnoFarmer

    SnoFarmer PlowSite Fanatic
    from N,E. MN
    Messages: 9,883

    :rolleyes: I agree,it's all a gibberish..
    A false sense of security for the contractor

    .You can not sign the rights of 3rd party that gets hurt because of your work, lack of performance or if you leave a hazard behind.

    2, If you do damage the property they will want you to fix it.
    If they have to sue you that will not protect you
    Last edited: Nov 28, 2007
  11. bribrius

    bribrius PlowSite.com Addict
    Messages: 1,609

    i would say it is between customer and the contractor. its a blanket statement too. not worth much.
    owner is property owner be my guess. contractor is snow removal company and includes any of the contractors subs and employees for indemnity. be okay if it just stated not responsible for owners doing but the act of god. blah blah blah make the thing worthless. it would be tossed out in court. And if it just stated contractor not responsible for owners doing it would be pointless to since that is a given. course they are not responsible for owners doing. duh.

    i used to have one similiar in my lease's for apartment rentals. not worth much. might as well write it in crayon. toilet paper
  12. cincy snowdog

    cincy snowdog Senior Member
    Messages: 262

    in worse case scenario something is damaged or someone is hurt,that little paper wont stop the legal issues...courts are out of control,so many lawsuits nowdays.example lady sued mcds for too hot coffee.just back it up with good insurance ,and make sure it covers SNOWPLOWING(alot dont) and a balloon package to back it. Them little clauses are not as meaningful anymore.
  13. Lynden-Jeff

    Lynden-Jeff PlowSite.com Addict
    Messages: 1,433

    This was in a sample contract I got off here. So what does everyone think should be in a contract between a customer and a contractor?

  14. basher

    basher PlowSite Fanatic
    from 19707
    Messages: 8,993

    I'm going to save this as a word doc. and just cut an paste when this topic comes up.

    Nothing you do, nothing you write in a contract, no complicated wording will stop you from getting sued. Dosen't matter what church, business group, volunteer organization, or school you're an alumni from. You'll not stop it by having a having a guy with equipment on site 24/7. Even if you place heat lamps on the parameter and pump salt brine in a constant stream across the surface of the parking lot you can not stop civil suits. No one can sign away their right to file suit let alone the rights of a third party. Contracts are important. They outline parameters of service and payment schedules, but nothing you include, no wording or phraseology will stop lawsuits, However a well written contract supported by good records can help get you out of one.
  15. basher

    basher PlowSite Fanatic
    from 19707
    Messages: 8,993

    The names, addresses and contact information of both parties
    the duration of the contract
    the location of the job site
    The requirements of both parties including but not limited to insurance and licensing
    the price schedule
    the payment schedule
    some standard legal boiler plate including conditions of release, an agreement to pay reasonable legal and collection fees an indemnification clause (didn't say it shouldn't be there, just dislike that one.)

    It should be easy to read and understand, you can write it. don't try to use whereas and why fores. Clear clean language in simple words. if you do the lay out work a lawyer should be able to clean up the wording and add the boilerplate inexpensively. have your insurance guy review it after the lawyers done but don't change anything the insurance guy suggests without your lawyer approving first.
  16. Snowpower

    Snowpower Senior Member
    Messages: 636

    Thats in several contracts I have signed right now. I see it, laugh, and sign. It's so rediculous that I figure a judge will laugh too if it ever came to that.
  17. murphyslaw

    murphyslaw Senior Member
    Messages: 443

    you can not contract out negligence. even with this in the contract if somehting happened due to negligence that any contract means squat.
  18. Banksy

    Banksy PlowSite Veteran
    Messages: 3,113

    If you hit a car while plowing or take out a mailbox it's on you. However, slip and falls are BS to me. I don't care how much you plow or salt, somebody will still slip and as far as I'm concerned it's the property owner who should be liable only, if at all. Unless you didn't come through on your services like you should have, plow, salt/sand then that's a different story. If the property owner is satisfied with the job you did, then he owns whatever comes later. If he wants some more sand or something, then he needs to call you back or something. This is just my opinion, not the real world.
    In North Carolin we have an equine law. It states that YOU can't hold somebody else liable if their horse or horse activity you take part in causes you to be injured. By taking part in equine activities, you take on all responsibility and anything that might happen as a result.


    I have fallen in parking lots because of ice and not for one second did I think of the word lawsuit.
    Hey all you sue happy, coffee spilling idiots! If you can't walk when it's slippery out, stay the F home!!

    Ya, this topic gets me ticked a lil'.
    Last edited: Nov 29, 2007
  19. bribrius

    bribrius PlowSite.com Addict
    Messages: 1,609


    "I have no idea what you are talking about. I have NEVER seen that person in my life. I have no idea what happened at that address, or where that address is and no, that is not my signature I will sign my name for you if you like so you can compare handwriting. I wish people would just stop accusing me of things i know nothing about and tell them i will sue for defamtion of character and harassment if they continue to try to say i did this damage."

  20. sparky8370

    sparky8370 Senior Member
    Messages: 234

    In simple terms, all this is saying is that if the owner screws up he can't hold you liable. Or if it snows like crazy and you haven't got there yet. It's an attempt at regulating common sense. This portion of a contract has nothing to do with your liability for you screwing something up.