Hold Harmless Agreements

[CMerLand]

Dear John....CNA expert

I would like to know your opinion on the validity of hold harmless agreements that many companies think they can use to avoid liability in the event of a slip and fall claim etc.

We dont use them only because I've never thought they were worth the paper they are written on. As a professional contractor providing snow and ice management services, we are accepting the responsibity for keeping these properties safe. If someone falls and gets hurt, of course they are going to look to the contractor who didnt do the job of keeping that lot clear. In fact they will sue the contractor, the plow manufactor the truck maker the property and everyone else hoping that someone will pay up.

If a client doesnt accept salting services, or limits the scope of what we consider necessary services we do write in the contract that we are then not responsible for any incident, which I do believe will hold up.

Could you and any others with legal experiences regarding this enlighten us with your knowledge. Thank you very much.

CMerLand

PS. Really liked the SIMA video on plowing and will use it to train new clients. Will be purchasing the package as well as joining SIMA tommorrow. The office staff was great in accomadating my request to preview the video and look forward to joining yet another high quality organization.

 

[GeoffD]

My take on it is:

Is you got extra space on your contract to fill, put it in there. However the chances of the hold harmless clause working are about 1 and 1 million.

Geoff

 

[BRL]

I agree with Geoff, it can't hurt to have it in there & try it. Maybe your customer's lawyerinsurance company doesn't know they don't really fly & they'll just try to settle any claims and not bother the contractor. The Lawnguy says they don't mean anything in his state of CT. My uneducated take on it is, if someone sues, they should have to prove negligence. If you can prove you were not negligent in providing services, then any claims would be the responsibility of the person who signed on to accept those responsibilities. Makes sense to me, but I'm sure the leaches err.. lawyers can poke some big holes in my theory. I have one contract where I had to agree to hold the customer harmless, and if there are any claims, I will not expect that customer to have to accept any of the responsibility for them. That's what the agreement I signed means, so that is the way I will handle it (I should say my insurance company will handle it). That's my $.03.

 

[John Allin]

We could go on for days about this.....

Like anything else, if you just write it into the contract and then just expect that the customer will fold (or better yet, that their insurance carrier's adjuster will fold) when you point it out - it's not worth much. However, if you do your part in following up on a suit (see another lengthy thread on this subject) that has been filed, you may be surprised at just how effective it will be. Assumptions definitely are worthless. Track records, case studies, "precedent", documentation and the like all tie in to this too. You can make the statement that the customer is to defend and hold you harmless - but if you cannot back up that you did what you were supposed to under the guidelines of the entire contract, then the customer can say that you didn't do your job to begin with and can pull you in under that premise.

Liken it to doing your taxes..... some things that are thought to be not deductable can be deductable if you have proper documentation and backup.

Some parts of your contract are enforcable only if you have documentation to back up that you did your part....

Hold harmless agreements WILL stand up, but not on their own. The "other stuff" goes along with it. First thing out of the customers insurance carriers lawyers mouth is "you didn't do your job so we cannot defend you". Then you have to prove that you DID do your job (and this can be done quite simply if you have what you need at your disposal). Simply stating "I did my job" isn't enough. You're word may be great with your kids, but not with lawyers.

Geoff is right. The chances of it holding up are 1 in a million - when taken on its own. The odds drop dramatically if you have the "other stuff" that goes along with it.

BRL's comment that you can "try it" lends one to believe that the attempt will be half hearted in the absence of the balance of the documentation that is necessary to make it stick.

Alot of people are easily bluffed too. If a lawyer for the "other side" states that "this doesn't hold up", sometimes we tend to fold 'em at that point because we are too tired, or uneducated, to fight it properly.

For what it's worth.... we have not had to participate in any action where we had the customer agree to defend and hold us harmless, AND when we could back up our claim that we did what we were contracted to do. As I have stated in previous thread(s), we (or better yet our insurance carrier at the time) paid out $10,000 (one claim) to someone who sued us for a slip and fall claiming we didn't salt the lot. Salting wasn't in our contract and WE didn't pay attention to what the carrier was doing. They paid it out as a nusiance claim and we dropped them at the end of the policy year (we only had them one year). We learned a lesson (it was 10 years ago) about "paying attention" and we have not paid out since (knock on wood please, everyone). And, as alot of you know - we have a whole bunch of exposure given our size.

They work... but not by themselves.

 

[John Allin]

One more thing....

Thanks for the compliments on the SIMA office staff and the video. The ladies there work very hard and we try to have a high standard with regards to how Members are treated (as well as prospective members).

I'll pass your comments on to them, unless Tammy has already seen this thread..

 

[Caneplow]

So is the best advise to put this in; have enough insurance and do your job correctly. Of course not in that order.