By Darryl Beckman
Six recent cases in my law practice reinforce the importance of diligent documentation and agreement on minute details in all aspects of snow clearing activity. I have changed the names to protect the confidentiality of all involved parties:
Travel time
A brutal winter storm struck the northwest portion of the United States. A customer asked Edge Snow to clear the rooftop of a big-box store—an unusual task and one for which Edge Snow was unprepared. Edge subcontracted services to Hamill Brothers. Three weeks after the service was performed, Hamill Brothers submitted a bill to Edge Snow, seeking payment for all services, including travel time to the job site. There was no document reflecting whether Edge agreed to pay for travel time, and the companies ended up in litigation.
Service triggers
There was almost no precipitation, but R. Sulzer slipped and fell on a small patch of ice in a bank parking lot. Jankovich Snow was under contract to clear the lot but only responded to storm events leaving an accumulation of 1-in. or more. Unfortunately, this service trigger was not written in the contract. The parties ended up in court.
Duration of service
Wilbur Ice & Snow cleared the parking lot of the DeKraker Plaza, an outdoor shopping center in Pennsylvania. Roof drainage was poor, and for days after storms, water would drain from the roof, pond and freeze on walkways. Wilbur brought the problem to the attention of DeKraker's management, and DeKraker assigned an internal maintenance employee to apply ice melt. Five days after an exceptionally large storm, a woman fell on ice on the walkway outside a beauty salon. A lawsuit was brought against DeKraker and Wilbur Ice & Snow. There was nothing in writing to confirm Wilbur did not have responsibility for clearing the walkways days after a storm, and the companies ended up in court.
Permission request to pretreat
Bowne Property Management was cost conscious and often refused to allow pretreatment at a residential community. In response to an upcoming storm projected to result in a significant icy accumulation, Lovett Snow Co. requested and was denied permission to pretreat by Bowne. Not surprisingly, conditions rapidly deteriorated during the storm and an older resident fell and was injured. When a personal injury suit was brought two years after the storm, there was no documentation of the request by Lovett Snow Co. to pretreat, and Bowne Property Management took the position it did not deny any service request. Once again, the parties ended up in court.
Additional insured
Spies Landscaping was a subcontractor working for Stetson Regional. Spies signed a subcontractor agreement and secured the required insurance coverage but failed to name Stetson Regional as an additional insured. An injury claim arising from Spies' services was presented against Stetson. Stetson demanded coverage from Spies' insurance carrier. The carrier refused coverage since Stetson was not named as an additional insured. Spies lost the contract.
Follow-up deicing
Escribano Snow contracts with Shupp Mall for snow clearing and deicing services. One application of ice melt product is permitted per storm. A wrap-around storm results in the need for a second application of ice melt, but there is no written communication reflecting whether the second application was authorized. Shupp Mall refuses to pay for the second application. Escribano lost the contract.
The simple lesson from the above situations is you must document all aspects of the services of your company, and especially com-munications discussing changes to the service. Document events as they occur, to the extent possible, and keep copies. Avoiding confusion and ambiguity in dealings with customers will keep your customers happy, keep you profitable, and keep you out of court.
Darryl S. Beckman is counsel to the Budd Larner law firm, and in the litigation group of the firm's Cherry Hill, NJ, office. He represents and advises many large and small snow and ice management companies throughout North America.
