A group of nearly 40 snow and ice management contractors and industry representatives traveled to Washington DC Sept. 11 and 12 to take part in 2017 Legislative Day.
After spending the previous day getting briefed by Matt Fullenbaum, director of legislation, American Tort Reform Association, who shared his experiences and insights, the group converged on Capitol Hill Sept. 12 to meet with their respective elected representatives. The goal was to educate senators on the importance of supporting the Lawsuit Abuse Reduction Act (LARA) when it comes up for vote in the Senate, as well as other business issues vital to the snow and ice management industry.
Senate Bill 237 — aimed at reducing frivolous lawsuits — passed the House this spring and needs to get through the Senate.
A regular review of every snow and ice management contract you sign is an important segment of the risk management process. The contract may include a provision requiring a waiver of subrogation (WOS) in favor of the property manager or owner for whom the snow removal contractor is performing services. If this is the case, then the snow removal contractor must make sure the WOS endorsement is first, available; and second, is added to their snow removal general liability policy.
Subrogation is an insurance concept used in insurance policies, which are contracts. A loss typically occurs through the negligence of either the snow contractor or the property owner/manager. Generally, the negligent side or “at-fault” party is responsible for the defense and cost of the loss. However, the claim may initially be paid by the snow contractors’ insurance carrier based on some “comparative fault.”
The insurance carrier could then seek compensation from other at-fault parties to recover a portion or all of the amount the snow contractor’s policy have paid. This process is known as subrogation. You may find this subrogation term in your snow removal contract, referred to as, “Transfer of Rights of Recovery Against Others to Us,” in the insurance policy. This clause allows the insurance carrier to “wear the boots” of the snow contractor, and pursue a claim against other at-fault parties through the process of subrogation.
A WOS must be in writing before there is a known loss. Often a WOS endorsement refers to an exact contract as a means of clarification. There are a few caveats to the use of WOS clauses, and hence; how an insurance policy may be endorsed.
In some jurisdictions, a WOS may not be available. Therefore, a careful review of a state statutes is required. Ask you agent about your workers’ compensation carrier’s position and agreement before agreeing to waive your rights of subrogation.
Read the contract. Make sure you understand the executed written contract and the wording should be thoroughly reviewed by a snow competent attorney to understand the contract intent appropriately. For example, mutual waivers may be beneficial in landlord/tenant contracts, where all parties waive their rights. However, in snow removal contracts, mutual waivers may not be acceptable or prudent.
When used properly, a WOS clause will minimize cross suit claims between the parties, in most cases we are keeping the snow removal contractor and the property owner/manager. This is clean and will keep snow contractor and property owner on the same side which is the goal.
Once the claim has been accepted and settles with a third party or commonly the slip-and-fall pedestrian, there is no further recourse against the party named in the WOS endorsement. What we are fighting for is that a claim is representative and corresponds to an at- fault party. Without a WOS clause in the agreement and insurance policy, litigation or arbitration is frequently needed to sort out the battle between property owner and snow contractor adding inflated cost to figure out who is going to step up and defend the claim.
This is especially an issue as the ASCA legislative board is aware of in states where comparative liability may be shared. A WOS allows for the timely settlement of claims and avoids costly litigation.
So, review and understand the both your contracts and how insurance interacts with them. It’s important that all contractual language agreed to is consistent with how your insurance policy is constructed. As your snow removal insurance agency of choice, we are committed to helping you understand how your policy addresses the issues created by the contracts you agree to. Mills Insurance wants to learn more about how we can assist you. Please support the those who support you.
On September 12th, a group of ASCA members descended on Washington DC carrying your message. Our mission was to educate elected officials on the business issues snow and ice management companies face. Specifically, the number of slip-and-fall claims this industry faces each season.
The legal system allows anyone to file a claim against another person or entity for any reason (or no reason at all) and then the court system is left to let the claim run its course. As you know, rarely does the court system even get a chance to see the cases. As a matter of fact, only 15 percent of claims even make it into the court system. Most of the time the attorneys for the insurance carrier broker a settlement that makes these claims go away. This settlement then raises insurance premiums and encourages others to file similar claims for a quick payday.
Senate Bill 237, the Lawsuit Abuse Reduction Act, would rein in these lawsuits. This bill would make it mandatory for judges at the federal level (and subsequently the state level), to impose sanctions on plaintiff’s and their attorneys, who are found to have filed frivolous lawsuits. Those sanctions would include the plaintiff and their attorney’s being responsible for defense fees, if it is deemed a frivolous case. It also would remove the 21-day “safe harbor” clause. This clause allows a plaintiff’s attorney to file a lawsuit against anyone and then pull it back in 21 days. It discourages them from doing any research on the case, and encourages quick settlements.
We only met with Senate offices because this bill, which has partisan support, has already passed the House of Representatives. It only needs to pass the Senate and then be signed by the President. The Bill (HB 720) passed the House 230-188.
In the end, your peers took 48 hours out of their busy schedules to do perhaps the most important thing for this industry -- educate our elected officials on issues facing your businesses. Four years ago, I begged and pleaded to get 19 snow and ice management professionals to D.C. with me. This year, we were upwards of 40 attendees. On our first trip and in our first conversation, Paul Taylor, the chair of the subcommittee on the constitution, stopped me at the beginning of my presentation, and stated: “Wait a minute, you mean to tell me that people are suing people in the United States for slipping and falling on snow and ice?” He didn’t know. Your government doesn’t know. Why? Because we didn’t tell them. They can’t do anything about a problem until they know it is a problem. That is our fault…or was our fault. Thank the nearly 40 individuals who took care of that for you.
Our success on Capitol Hill, like always, garnered mixed results. We had mostly successful meetings. The Republican side was very sympathetic to our situation. Staunch Democrats have their heels dug in (likely due to the money the plaintiff’s bar uses to support them). Illinois Senator Dick Durbin is no friend to small business or the snow industry. New Jersey Senator Corey Booker’s office, while perhaps a little more cordial, also is not a friend of the snow industry.
Some more moderate democrats were very open to learning more about the issues we are facing, asking for additional information and follow-up from us. We are in the process of gathering that information. We’re also looking for more stories of frivolous lawsuits, and they do not have to be snow-related. If you have a story (or stories) call or email me directly at email@example.com or me at 216-393-0246.
Jason Case’s ability to create a vision for the future and make that vision reality is what has led to his rapid success in the industry, according to those who know him best.
Case, chief executive officer of Case Snow Management, started the company in 2009 as a spin-off of a family business, The J.E. Case Companies, that dated back to 1951. In only a few short years Case’s company has risen to the top and today is one of the five largest snow removal companies in the United States.
“My grandfather started a site work company,” Case says. “I came on board in that family business back in 2003, I worked in the family business and one of the things that we did was snow plowing as a supplementary winter service. Through some growth there I decided that I was going to venture out on my own.”
After graduating from college, Case began to develop upon some of the services within the family business, including managing a landscape supply yard.
“As a young entrepreneur, I saw an opportunity there to develop that segment of the company and grew that landscape materials yard large enough for it to be incorporated on its own - almost a division of the Case companies,” he says.
The snow and ice management division was a natural inverse to that service, Case says, and soon he began managing that part of the family business before breaking off to form his own company. He was drawn to that side of the business due to the unique challenges it presents.
“What I love most about the snow and ice businesses is that it’s not monotonous. There’s nothing the same about going into the winter or going into the storm,” he says. “Every storm presents its own unique set of challenges. You can never predict mother nature and that gives a snow and ice management a little mystery and makes it fun.”
Case Snow Management is based in North Attleboro, Massachusetts and today the company serves commercial clients in 10 states. The company employs 50 people year-round, but on a seasonal basis up to 1,000 people work for the company along with a subcontractor network.
Neal Glatt, who is in charge of business development was one of Case’s first hires when Case Snow Management formed.
“When I moved out here seven years ago I think we had one pickup truck and we were doing just a few accounts. To grow from that all the way into the fifth largest snow and ice company in North America. It’s wild,” he says. “I sit in the office and I see the plaques on the walls and we didn’t even have an office to sit in when I moved out. To sit back and look at what we have accomplished, it’s really wild.”
Today the company has an annual revenue of $32 million.
“Jason has that dynamic energy and vision that natural born leaders have,” says Kevin Gilbride, executive director of the Accredited Snow Contractors Association. “He is analytical in his approach to things but he is aggressive in his execution and adaption of things.”
The ‘Case’ difference
“We’re a very customer and service-centric organization,” Case says. “We’re a hybrid of a self-performer, and utilizing service providers in that field, we cover a large geographic. We also overlay our services with men in the field that inspect and perform quality control checks on a consistent basis throughout the storm, which is very unique.”
Today Case Snow Management also has one of the largest fleets of snow and ice equipment in the country. In addition, the company was the first in the world to be ISO 9001/SN9001 certified. The process to gain that certification, industry benchmarks for quality snow and ice management, was spearheaded by Case.
Gilbride has known Case for about 10 years through his involvement with the organization and through Case’s support of industry-related lobbying efforts.
“It (the certification) was a decision that he looked at for his company,” he says. “He recognized the value it had to the company.”
Today more than three dozen snow contractors maintain this certification.
“We’re certainly the type of company that takes the reigns and the rest into capitalizing on that opportunity,” Case says. “When ISO was first introduced into the market we knew as an organization that this was going to help us build a strong infrastructure just from a process metric standpoint.”
Effectively communicating the company’s vision and mission to employees and service providers has been vital to growth, Case says.
“Communication is an essential part of any organization – whether that’s through training programs, onboarding, company handbooks or company policy there’s always been really solid communication through our organization from the top down,” he says.
That communication at Case Snow Management then rolls down to employees, who are then led to charge.
“He has this vision and he sets out to accomplish it in a way that, for most people, it never really occurs to them,” Glatt says. “Our company growth and what we have accomplished over the years – I think it’s because Jason has been the one who said this is where we are headed and this is how we are going to do it.”
Case says his company would not be where it is today without the hard work and devotion his employees put in daily. And while many employees now help the company run, Case’s colleagues say their top executive still isn’t afraid to pick up a shovel and work alongside his team in the field.
“One of the greatest things about working with Jason is he isn’t just directing it, he is working side by side with you,” Glatt says. “He is in the truck during snowstorms. He is driving around to meet with clients. He is very much a front-line kind of guy. You see him in the shop and in the field working side-by-side with people.”
In addition to having good people and processes in place, Case says embracing technology rounds out his top three tips for success.
“We know it’s the future, and the technology extends from infrastructure to software and hardware, to utilizing apps from a field use perspective, to the type of equipment that we invested in your lives,” he says. “We want to make sure that we’re always on that utilizing the most cutting-edge top performing equipment that’s available to us in a snow market.”
Outside the company, Case has initiated efforts on behalf of the snow and ice management industry to even the playing field between contractors and property owners.
“It’s very important for politicians to understand that snow contractors can’t be at the mercy of frivolous claims, when they’re doing everything within their power to protect the public,” Case says. “It’s our responsibility as leaders of the industry and associations like ASCA and SIMA (Snow & Ice Management Association) to continue to fight for the protection of the contractors, that are out there doing a good job.”
That playing field is not level at all, right now, Gilbride says.
“It’s very skewed to the property owner where the property is not holding any liability and they are forcing the contractor to hold all of the liability,” he says. “We are trying to get our ASCA legislation enacted in 33 snow states. We have 32 left to go.”
The primary issue of concern pertains to slip and fall incidents.
“It would be great for the owners of the properties to be responsible for any slip and falls and force them to have to hire a good solid contractor that pay the money for their appropriate insurance, shows up on time and performs repetitive services – which cost money to do – to try to reduce the amount of slips and falls that take place, but never the less it’s never going to reduce it,” Case says.
Growing as a leader
Throughout his career Case has been actively involved with industry organizations including SIMA and ASCA. He attributes his success from that involvement, and from mentorship within the industry.
“A lot of my roots, in people that mentored me, have been cultivated through that (SIMA) association, Case says. “I’ve also had an unbelievable executive team, and now I also invested into a CEO Care Group, which I participate on a monthly basis.”
Bill Carello, chief financial officer at Case Snow Management is one of those executive team members. He has worked with Case for more than 15 years.
“He has a great strategic mind and attention to detail,” he says. “All those qualities that you have to have when you grow a company. He has a team on the outside, not just within the company. He is willing to gain more knowledge.”
Looking back at his accomplishments so far, Case describes three levels of leadership growth.
He also points out that not everyone has to strive to be the top leader in their organization.
“When you start out as a smaller company, you’re in the field when you only have a few guys working in your company, and you are out there cutting the grass or plowing the snow with the guys,” Case says. “As your company grows you have to understand between the difference between that leadership and more of a manager leadership.”
As a leader turns into more of a manager, more high-level team members are brought on. “He brings in his people, lets his people do their jobs, allows his company to operate how it should,” Gilbride says. “Once the vision and the path is set, he doesn’t go in and try to control everything.”
Case allows the team to execute, Gilbride adds.
“Then from a management, you move on to more of an executive leadership, really empowering the rest of your team to help manage and operate the business,” Case says. “Your job becomes more the future growth of the organization how it’s going to come to fruition, making sure your vision and mission are still on alignment.”
Growing a company to be large in size and revenue is not always a marker for success – companies of all sizes can find success in the industry, he adds. “That’s okay sometimes if you want to stay smaller,” Case says. “But for guys who want to grow their companies they always kind of hit that roadblock, and from a leadership perspective they have to understand the difference between those three different milestones in the succession plan of an organization.”
Staying hands on in the business is also merited, Case adds. “It’s okay if you don’t feel up to be the CEO if your business grows,” he says.
“It’s okay to hire one. That may be a good leadership decision,” he adds. “A lot of people get kind of caught in between they have to be the president of their own company they started, but they don’t have to be.”