Josh Ferguson has his ear closely pinned to the ground when it comes to legal matters relating to the professional snow and ice industry. As legal consultant to the Accredited Snow Contractors Association (ASCA), Ferguson says the litigious landscape has not changed much in the last year.
“The volume of cases are still there, with a fair share being frivolous,” says Ferguson, an attorney with the Philadelphia firm of Kent-McBride. “The progress the association has made over the past year with regards to certifications and with regards to tort reform will make a difference. It will take time, however, for us to see that impact with regards to litigation.”
We sat down with Josh to gain some additional insight on the legal landscape of snow and ice management.
Snow Magazine: Right now professional snow fighters are engaged in contract selling season. What three things should they be aware of to protect their best interests if they’re signing a client’s contract?
Ferguson: First, from a broad perspective, the contractor must understand the risks as they are detailed in the contract. Then they must balance this risks with the potential profit for that site(s). Focusing more on the contractual language itself, the contractor needs to make sure the scope of work is specific and reasonable. They also need to review or have counsel review the indemnification section to ensure the terms are fair and not unduly burdensome.
How about if they’re using their own contract? What are common problem areas that leave them exposed to slip-and-fall claims.
As I have discussed any time I’ve had the honor of speaking to contractors, it’s important they understand the terms in any contract. Often times I see base contracts full of inconsistencies and missing protective language because they are simply copy and paste jobs. The importance of having a solid base contract cannot be understated. If any of the contractors out there have concerns over either their contract or the contacts they are receiving from their clients, I hope they would consider reaching out to me to discuss and review. I have reached an agreement for reduced hourly rates for ASCA members, and also offer a template contract and sub-contract for a flat rate.
I’m hearing a lot of contractors are converting over the “paperless” documentation systems – getting rid of the clipboards in favor of digital platforms. Are their still documentation issues to be aware of when using these mobile platforms?
The increase and affordability of these types of technology should help the carrier and defense counsel defend the claims assuming everything is made available. It’s important contractors ensure these systems are backed up if they are in fact paperless, and that authentication procedures are in place.
You’ve been educating contractors on how important it is to recognize and catch words and phrases in contracts and service agreements that could leave them vulnerable in the event of a slip-and-fall claim. What are some of those and how, or where, are those words and phrases used in agreements?
There are words that we see repeated in contracts coming down from the property owner and managers that I would view as a red flag. Without writing a novel, they are generally terms in the scope of work section that put unreasonable burdens on the contractor. These include, but not limited to, service trigger words like “immediate,” “time is of the essence,” or completed operations mandates like “slip-free,” “ice-free,” or “continuous.” In the indemnification and hold harmless section, the broader the language the more troubling it becomes when litigation arises.
Meteorological predications are forecasting a cold and snowy Winter 2015-16 the Snow Belt. From a legal point of view, what steps should a snow fighter be taking – perhaps in their contract language – to not only to protect themselves from liability, but also from a delivery of service perspective?
A snow contractor needs to have the documentation management policies in place to assume that every winter will be a bad one. The contract, pre-season site inspection, in-event and post-event documentation and written communications need to be detailed, clear and reasonable. All of the documentation needs to be maintained so that if a notice of claim comes in the contractor can turn over everything to the carrier for early defense of the case.
Explore the September 2015 Issue
Check out more from this issue and find you next story to read.
Latest from Snow Magazine
- NOTEBOOK: Go With The Flow
- NOTEBOOK: Winter Equipment Offers the RoadMAXX System
- NOTEBOOK: Yanmar Unveils Compact Loader Lineup
- NOTEBOOK: Schill Expands in Southwest Ohio
- October Cover Story: Achieving Wet Pavement
- August 2022 Cover Story: Beat The Odds
- May 2022 Cover Story: Bullish on Snow & Ice
- 2022 Top 100