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Kevin Gilbride

Kevin Gilbride is publisher of the Lawn & Landscape media group.

Features

Get rid of hold-harmless agreements

Snow and Ice

August 19, 2015

A major problem plaguing the professional snow and ice management industry centers on contract language, specifically the indemnification clause.

One line in particular reads: “To the fullest extent permitted by law, you shall, at your own cost and expense, defend and indemnify (property owner) from any and all allegations directed at the indemnified party. To the fullest extent permitted by law, you shall indemnify and hold harmless the indemnified parties from any and all liabilities, obligations, claims, demands, settlements, and penalties, for any incidents arising out of based upon, or in connection with your performance.”

Translation: If anything goes wrong, the snow contractor must take the fall, even if the property owner is at fault. If you sign this agreement, you are on the hook and you will have no case to fight.

These agreements run roughshod throughout the industry. Frequently, snow contractors are unaware they are agreeing to these terms. After all, the wording is often buried on page 8 of the contract.

Other times the contractor is aware of the language. And even though they push back, they are told to either sign the contract, or lose the work.

Another major issue comes into play when the property owner not only wants the hold-harmless agreement signed, but they dictate service parameters within the contract. For example, you must hold the property owner harmless, but plowing can’t commence until two inches of snow are on the ground plus they reserve the right to dictate when you salt. So if a claim arises, the snow contractor is held liable — even if a slip-and-fall incident happens at one inch. Why? Because the snow contractor agreed to shoulder the liability.

There are a few ways contractors deal with this dilemma. Some walk away from work that includes hold-harmless language, while others negotiate with the property owner or manager to remove it from the contract altogether. However, some are forced into the agreement because they need the work, and others, sadly, don’t realize what they are signing or the potential ramifications.

In the end, the net effect of hold-harmless agreements on the professional snow and ice management industry is that liability insurance rates have gone through the roof.

Here is the solution: eliminate hold-harmless agreements from snow and ice management contracts. And through legislation we will make them null and void.

The Accredited Snow Contractors Association (ASCA) works for positive legislative change for the professional snow and ice management industry. To date, much of the focus has been at the federal level supporting initiatives to reduce frivolous lawsuits, and we are still very much in pursuit of that goal.

Closer to home, though, we have been laying the ground work for positive legislative change at your state capital and we are excited to announce the culmination of a two-year grassroots effort. This announcement comes as work is well underway in all states in the Snow Belt to implement the ASCA’s proposed legislation to render hold-harmless agreements null and void.

The unveiling of this initiative coincides with the introduction of ASCA’s model legislation – the Snow Removal Liability Limitation Act – to the Illinois General Assembly (HB 4221) and Illinois State Senate (SB 2138).

The bill places the liability with the appropriate party. If the property manager is at fault, they are liable. If the snow contractor is at fault, then he is liable. The bottom line is property owners can no longer pass their liability on to you.

This bill does a number of important things:

  • It impacts insurance rates, bringing them slowly back into line.
  • It alleviates insurance carriers concerns about contract language.
  • It increases the value of the professional snow and ice management services, as property owners can no longer pass their liability on to the contractor. Finding a professional now becomes vital.
  • Scope of work changes. Since property owners will be more concerned with a properly maintained surface, scopes of work will become more favorable for the contractor increasing revenues. Customers will not have unfair contracts utilized to reduce services necessary to create safe conditions. For example, trigger depths may decrease, and salt application will become the discretion of the contractor, bringing increased profitability to snow contractors.
     

The ASCA has completed its due diligence on this initiative and we have been working diligently in all states, and Canada, to get this law introduced. Due to our efforts, we anticipate the introduction of the bill in all Snow Belt states in short order.

Today, we are officially taking this initiative to the next level with the launch of the ASCA Action Network, a grassroots movement of snow and ice management professionals focused on taking our industry back. The ASCA Action Network has been building for a year, with industry leaders pursuing legislative change in their respective states in conjunction with the ASCA. Our leaders are working diligently in each state working our plan to introduce this legislation.

The ASCA Action Network began with a small group of individuals who took the ASCA message to their state legislatures. They accomplished this by:

  • Writing support letters (available on a newly developed section of ascaonline.org)
  • Meeting with elected officials in their districts
  • Meeting with elected officials in their state capital offices
  • Following up with letters
  • Following up with phone calls
  • Most states have an ASCA Action Network established with a local contractor leading the initiatives.
     

These state leaders not only drive the legislation, they are involving others’ participation in their state network. Undoubtedly, there is power in numbers. The more unified support we have as an industry, the better chance we have of getting legislation passed.

The ASCA Action network is driving this legislation at the state level. We encourage you to get involved in this initiative. First and foremost, becoming a member supports these efforts. Contractors can contribute as much time and energy as they would like, and we will provide you with the tools. For example:

  • Want to write letters?… Join, we will provide them to you.
  • Want to support the crew on a legislative day in your state?… Join, your support is needed.
  • Want to hold meetings with your district representatives?... Join, we will provide you with the support material you’ll need.

 

The ASCA Action Network is working for you. To preregister for the ASCA Action Network, visit www.ascaonline.org/AAN.
 

 

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