Reduce Winter Exposure

Fall has started and winter is right around the corner. Each season brings challenges, and from a claim perspective, snow and ice management contractors must be well prepared to protect their businesses. As always, slip-and-fall claims remain a significant concern.

For contractors who have been sued before, they know a plaintiff will allege negligence against as many entities as possible. They alledge defendants were negligent for failing to provide safe conditions on the property, and that failure led to the plaintiff’s slip and fall and resulting injuries.

These cases, though, come down to documentation or lack thereof. To defend against such claims, abiding by ANSI Industry Standards is necessary. This includes:

• Maintaining industry certifications and training documents;
• Clear and fair contract language;
• Pre-season site inspection records;
• In-event and post-event service documentation;
• Photographs, and;
• Maintaining all communications between entities involved in the services performed.

Further, contractors should maintain a heightened focus on both their commercial general liability coverage and that of their sub-contractors/service providers. Endorsements and exclusions abound that can significantly impact coverage available. Even for a snow professional who has all their service documentation, if the subcontractor/service provider did not obtain adequate insurance for themselves or for you as their additional insured, significant defense cost and potentially indemnity exposure exists.

A particular focus over the past few years in slip-and-fall claims is the pursuit of a negligent hiring and supervision claims. The claim goes against the property owner/manager, but also a contractor who then subcontracts out the work to another pro. The claim is that the entity contractually requesting another to service a site did not perform due diligence to ensure the ultimate service provider could manage the site in question. If this claim can be proven, negligence could be apportioned to those entities even for the fault of the subcontractor/service provider. This is particularly concerning as it could impact defense and indemnity claims.

To avoid or limit exposure on this claim, a contractor who is retaining a subcontractor must have documentation to show they adequately vetted the sub-contractor. This includes, but is not limited to, checking the sub-contractor’s equipment and people-power available, industry certifications, investigation into prior sites serviced. Further, snow professionals must document and maintain this due diligence should a claim arise years down the road.

All the above examples demonstrate why contractors in snow and ice management are truly “risk managers.” Understanding the types of claims that a plaintiff’s attorney can file against a business and insurance coverage available can put a business owner in the best position to be manage those risks.

A frequent Snow Magazine contributor, Josh Ferguson is managing partner of Freeman, Mathis & Gary’s Philadelphia office and general counsel for the Accredited Snow Contractors Association. Michelle Yee is an associate in FMG’s Philadelphia and Cherry Hill offices’ Tort and Catastrophic Loss National Practice Section.