Documentation mistakes you’re making...

Features - Operations

Accurate record keeping and correct documentation are the keys to successfully overcoming liability claims. Industry consultant John Allin examines the common documentation mistakes and deficiencies and how to fix them.

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September 23, 2013

Snow contractors have some huge responsibilities when they are out fighting a storm. Keep track of the field personnel, get the times reported correctly, make sure all the sites have actually been serviced and serviced properly, collate all the data so accurate invoices can be developed, and make sure you protect your company and the customer.

Unfortunately, all this information needs to be recorded and kept for years just in case someone files suit against you for something they intimate your firm did wrong. In these instances it is unfortunate that it is left to you to defend yourself as well as your client. It must feel like you are pronounced guilty and have to prove your innocence, or rather your competence in doing what you do.

This is not nearly as difficult as one might think, however often mistakes are made that can sink you when the time comes. Several years back, a very good snow contractor in St. Louis was named in a suit where a tenant/owner (who was a physician of note in the local market) of a condominium in a home owners association (HOA) walked out of his front door, stepped down onto the driveway (which had a slight slope to the street), slipped and fell on ice and was severely injured. Of course a suit was filed naming the HOA, the company managing the property and (of course) the snow contractor. The contract specifically stated the snow contractor was charged with clearing snow as needed and applying deicing material at the snow contractor’s discretion. The snow and ice management contractor had total responsibility for supplying appropriate services in order to keep everyone safe. The contractor was diligent. He kept records. Unfortunately, one rather significant mistake brought him into the suit.

When the property manager called him and directed him to “cut back on the salt applications, because we’re running very low on budgeted money,” he did as he was asked. The mistake was not confirming the directive in writing. A simple email attesting to the conversation as well as the fact the property manager would have to accept responsibility for the change in scope would have saved his insurance company hundreds of thousands of dollars in legal fees and settlement costs. It would have also kept the contractor from many, many sleepless nights since his insurance maximum payout was not nearly enough to cover the potential damages that might ensue as a result of the pending legal action. Of course, when depositions were taken the property manager who gave the direction could not recall the exact nature of the telephone interaction (a verbal discourse) and simply had no record of having given that directive. It was not a good situation. Fortunately, the settlement (confidential, so no actual figures were released) did not put him out of business.

At various educational sessions around the country, put on by associations and consultants, these educators harp on the “document, document, document” mantra. Had this contractor sent an email to the property manager attesting to the tenor of the verbal conversation it is likely one of two things would have happened:

  • The property manager would have accepted the written communication and accepted the liability associated with the directive, thus relieving the snow and ice management contractor of the inherent risks associated with such an action, or;
  • The property manager would have backed off the directive in lieu of accepting the liability exposure and allowed the contractor to continue their practice of providing outstanding service to the site and rendering it safe for vehicular and pedestrian traffic.


The above true example confirms that this sort of thing does occur. This being a one-time lack of appropriate documentation can come back to bite the contractor, and their insurance carrier, hard.

Another common mistake is lack of consistency in the documentation. The cavalier attitude towards continually documenting what happens during a storm can also create hardship for normally good contractors. When snow contractors make claims that “we always go out and check sites for thaw and refreeze, we just don’t mark it down all the time,” they open themselves up for issues when the inevitable slip and fall suit arrives in the mail. They keep track of what takes place when the storm is in progress, but they sometimes fall short in the “follow-up” documentation. Testifying “we must have been there, we’re a good contractor” is simply not enough. A written record attesting to the fact such check-ups are made is a must if the contractor is to adequately protect themselves and their customers from such claims.

Often, snow contractors will simply state: “We don’t go back after the storm.” If the contract agreement language is such that the snow contractor is tasked with keeping the site safe 24/7 (or words to that effect) it means just that – all the time regardless of what the contractor wants to do. Some agreements specifically state the contractor is not required to return to the site, however most state the contractor is responsible for keeping the site safe and to re-mediate unsafe conditions as they arise. Even contractor written agreements that say, “We’re not responsible for slip and falls,” can be considered faulty. This is often considered the same as putting a sign in the back window of your truck that says, “Not responsible for accidents I might cause.” It simply doesn’t work.

Not keeping track of what your service providers or employees do on any given site is very dangerous. You have no proof of what was done, when you were there or how the work was completed. Paper trails are good, however (as noted above), consistency is a must. There have been relatively recent advances in technology which can move contractors away from paper tracking. Several suites of tracking software are on the market to assist contractors in eliminating human errors normally associated with paper tracking systems. And, the legal community loves computerized records. They are quite difficult to forge or manufacture. CrewTracker Software is one such software program. A service provider or employee providing service to a site can use an app to automatically track what services are performed where, and this is also backed-up with GPS technology.

Contractors contemplating achieving ISO SN9001 status will have processes and procedures in place to alleviate the concerns that arise from lack of consistent and verifiable records if they want to be an approved ISO contractor. Even those contractors who have no intention of working towards ISO approval should still keep appropriate records of what is being done during any given snow event. Additionally, the recently instituted written snow industry standards (put forth by ASCA) that went into effect for the 2012-2013 winter season assumes proper documentation practices with regards to educating are in place so that contractors can further protect themselves.

So, the next time you hear the mantra “document, document, document,” don’t just say: “Awwww, that’s for the other guys, not me.” Understand this is the way of the world today. Not only is it good business, it is often the difference between having insurance or being told to find another insurance carrier.

 


John Allin is a veteran snow contractor, author, speaker, industry consultant and frequent contributor to Snow Magazine.