Episode 90: Warming Up The Zamboni For Espinal

A slip on ice can look like a small accident until you see what it turns into on a claim file: multiple defendants, competing contracts, fading memories, and a fight over what the weather actually did at one exact address. We get into why snow removal contractors are often treated like the default villain, and how a solid liability analysis starts with the boring stuff that saves you later: reading the policy, reading the snow contract, and tracking who promised what to whom.

We talk through common contract trigger language like two-inch thresholds, salting only on request, visit limits, and why “babysit the property 24/7” is rarely realistic. From there we shift into what wins cases: plow and salt logs, truck camera footage, photos of drainage and refreeze hazards, and witness work that still matters even years after the loss. We also cover how big injuries change the stakes, including traumatic brain injury, and why documenting real constraints like salt shortages can matter when reasonableness is questioned.

If you handle New York claims, we break down the Espinal framework and the three exceptions that can create contractor duty, plus how indemnity clauses and additional insured endorsements can reshape tenders and defense. We also dig into weather records, NOAA, the challenges of getting certified data, and when it’s time to bring in a forensic meteorologist to interpret conditions at the loss location.

Subscribe for more practical adjusting talk, share this with an adjuster who handles slip and fall files, and leave a review if it helps your work. What document do you request first when a winter liability claim hits your desk?

For more insights, you might consider a career in liability adjusting or if you're searching for reliable adjusting services, visit Auten Claims Management.

To explore more about Chantal Roberts and her contributions to the industry, visit CMR Consulting.

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Transcript

elcome And Show Purpose

William Auten 0:06

Hello, I'm Bill Auten of Auten Claims Management.

Chantal Roberts 0:09

I'm Chantal Roberts of CMR Consulting, and welcome to the Art of Adjusting Podcast.

William Auten 0:14

Today we're going to talk about life as an insurance adjuster from the perspective of property, auto, liability, or workers' compensation adjusters. Our goal is to bring interesting topics in the world of claims adjusting to people who are working as an adjuster now and to people who are considering a career as a claims adjuster.

Chantal Roberts 0:31

Hi Bill.

William Auten 0:32

Hey Chantal, how are you?

Chantal Roberts 0:33

I'm I'm very tired. We had a storm last night, and well, it's continuing on. And so, you know, you wake up like every other hour or whatever, because some large thunder clap has wouldn't. You're like, uh, so I I might be a little, I might be dragging a little.

William Auten 0:52

Thunderstorm season hasn't hit here really yet. We're still coming off a winter. Uh it's still winter. Uh we have uh we had freezing rain overnight, so the parking lot uh driveway was an ice rink. So um we're out there with the salt taking care of business, and it's appropriate based on what we're gonna talk about today.

hy Snow Contractors Get Blamed

Chantal Roberts 1:14

Exactly, because that is our topic today, isn't it? And and um the fact that y'all live in the great white north, I suppose. Uh yeah, so uh Aaron and I were talking about this is our first spring uh storm so far, but we are talking about contractors in the cold, uh doing contractor stuff like snow removal and who has liability or fault or responsibility for what?

William Auten 1:45

Yep. Uh, you know, when you hire somebody to take care of snow and ice at your property, uh if someone slips and falls, everybody paints a target on the contractor and they say assume that the contractor did a poor job, but there's a lot of nuance to that and a lot of details that have to be kind of parsed out. And sometimes we insure the snow removal contractor, and sometimes we insure the property owner, and sometimes we insure the tenant.

Chantal Roberts 2:14

And uh in this I'm sorry, go ahead.

William Auten 2:18

Well, it it just makes for uh complex claim uh scenarios where you really have to read contracts and understand how they all might work together.

ontract Triggers And Snow Measurements

Chantal Roberts 2:28

And that's what I was gonna, that's what that's what I was gonna say. It's like, oh, you know, we sit here and we talk a lot uh on this podcast about how you need to read the policy and understand the policy because it is a passion of mine that you have to understand the policy, which is of course the overarching goal or the overarching umbrella or whatever you want, rules that that you have of the claim. But you also have other contracts involved, which, like you said, is is the contract between the maybe the landlord and the snow contractor or the ice removal people or whatever. So you you have to look at both of those before you are able to excuse me, determine liability and uh or fault or anything like that. So um they're they're very precise. And and I want to get your opinion on them because I don't necessarily, we don't necessarily have them down there. I have handled a few snow claims up in in in New York, but uh, you know, there's a couple of I guess triggers for in these contracts. And until those triggers trip, there's no obligation for a contractor to to act. And we've talked about this before, where uh like a landlord isn't obligated to go out in the middle of a snowstorm and and clear out the sidewalk.

William Auten 3:59

Right.

Chantal Roberts 3:59

You know, um, so we're gonna be unpacking some of those, how those contracts work. And I'm really interested to to hear your thoughts. Um, because you know, in winter, people slip and fall all the time, and they assume that either the landlord is gonna be responsible or the landlord assumes the snow removal or the ice uh person is gonna be responsible. Um so why do you think it is that we've got this assumption in these claims? Why does this assumption like kind of show up? Besides the fact that nobody wants to really be at fault and admit that they fell and busted their bee.

William Auten 4:40

Well, I think the the types of contracts that you see can vary from uh uh over a very wide spectrum. Some contracts are gonna be very broad and they're gonna say something along the lines of uh snow removal for the 25-26 season X number of dollars. Well, well, that's pretty broad. Um, that means you're gonna remove all the snow. Uh, does it mean you're gonna salt? I don't know, maybe. Maybe you're gonna apply some ice melt, maybe not. Um, other contracts will say we will show up if there's two inches or more of snow, and we will salt only if you request that we salt, and we will charge you at $20 per bag of salt. Or something along those lines. So that's that one's uh uh on the other end of the spectrum where it's m way more specific. And if it snows one inch and the snow removal guy doesn't show up, he's not supposed to. He didn't he said he was only gonna come if there was two inches. Um so if someone slips and falls on that one inch of snow, it's hard to blame the the snow removal guy. Um if the property owner agreed that the contract was gonna be two inches and there's only one inch of snow, the property owner really has to figure out how he's gonna address that one inch of snow. Is he gonna go out there and take care of it himself? Right. Or the next season, is he gonna have uh a better contract that that will say we will check on your property every morning and if there's any snow of any kind, uh we'll plow it. Tough to find in in this environment, you know, because we get a lot of snow, and you it's f hard to find somebody who's gonna babysit your property, you know, 24-7.

Chantal Roberts 6:28

Except you. I mean, you you as as as the landlord or owner is gonna be the only person who really like does that. And um or your employees.

William Auten 6:38

You can't or your employees staff.

Chantal Roberts 6:41

So I so I have I want to throw you kind of a curveball, I guess, is um we hear at least uh in in the South, um, and I wouldn't consider Kansas City so much the South anymore, but uh, you know, like when I was in Arkansas or whatever, some parts of the city may have gotten, you know, four inches because it was coming from the west, so the western part of the city or one of the western suburbs may have gotten like four inches, whereas we only got two inches or one inch or whatever. Where do you take that measurement? What what part of the measurement do you take? It's a it's a total curveball, but I can imagine this coming up in a claim scenario. Um, so if we get off topic or you don't want to answer it, feel free to tell me to go mind my own business and we'll go on to the next topic.

William Auten 7:34

Sure. That that's another one of those gray areas. So contractors at his house or his office or whatever, and he goes out with his little ruler and takes a measurement. And oh, it's only one inch today, so I don't have to go plow. Um, but his contracts uh are two or three miles away. And in this area, I don't know what it's like where you are, but you can have six inches of snow in one part of town and almost nothing in another part of town.

Chantal Roberts 8:02

Well, you can do that too. Yeah. So I was wondering about that.

William Auten 8:05

Yeah, so those devils are devil are uh is in the details, and if there's a situation where it should have been plowed because it did exceed the contract uh threshold, then there has to be some sort of proof of that. Um you know, but by the time there there's uh a claim made and uh even a potential lawsuit, the snow's probably m long melted. And uh so we have to gather as much information as we can from security camera video uh weather records, which are more and more difficult to get these days, and uh um uh witness you know accounts of of what the snow is like.

Chantal Roberts 8:52

I think what I would tell my my adjusters would be uh to and and of course nine times out of ten, we're not getting the claim until after everything is done. But if if if you call your snow contractor and you're like, hey, I've uh you know, I've got a lot of snow over here, you need to get over here, and it's it's either before or after someone has slipped and fell, you would want to notate that somewhere and put it somewhere. Um, and then I would ask as my as an adjuster, I would ask my insured, did you, did you call and say, hey, we've got snow here. Did you take pictures? Um, you know, and and again tried to paper our file that the insured tried to do something about it. Would you say that that would be the correct thing?

William Auten 9:40

Yeah, absolutely. The uh one of the first things we asked for are logs for snow plow and salting logs. And uh not everybody keeps them, but most snow removal contractors will have some record. And the reason they do is because they're keeping track of this because many of the contracts have a certain number of um events that they'll that they'll plow. So they may say we'll plow anytime it reaches two or three inches, whatever the contract says. Uh and and this contract will account for 14 visits during the season. Anything more than that we bill you per trip.

Chantal Roberts 10:20

Okay.

William Auten 10:21

Um not always, but the I mean these contracts can be configured so many ways.

Chantal Roberts 10:26

Right.

ogs Video Evidence And Salt Shortages

William Auten 10:26

Um uh so they're in most cases very diligent about keeping track of what they do. Not always, you know. Sometimes it's uh, you know, a less than professional kind of a contractor who's just kind of running their life by the seat of their pants and hoping for the best. Yeah. Um, those are not good situations. No. The best, the best, um, the best situation that I've seen is where contractors maintain a camera system in their trucks that record, and there's a there's a service out there, and I don't know the name of it, but um there's a service that stores all those records for you um so that when you are asked, it it helps for billing, um, and it also helps for uh evidence in case somebody claims they fell. And we've had cases where, you know, the our snow removal guy was there plowing at the time someone fell. And even though they're there plowing, the snow is coming down the so fast that they can't even keep up. And we see all that in the video. That's great, that's a great defense. That's a storm in progress defense. Um, just be just because someone slips and falls on ice doesn't necessarily mean that somebody did something wrong. In many cases, it's Mother Nature taking over, and there's only so much human beings can do to mitigate snow and ice. Now, if the uh if it snowed three days prior and we had you know varying temperatures and nobody put any salt down, um that's a little different.

Chantal Roberts 12:11

Um but I do want to interrupt you real quick because you you had mentioned something about salt, and I don't know if a lot of our listeners or adjusters happen to know this, but but right now, um, I know last year y'all had this, and I think this year y'all are having uh this as well. There has been a little bit of a of a low uh what's what's the word? A shortage of sort of yes, yeah, a shortage of salt, thank you. Uh yeah, because I couldn't think of the word, but yeah, there's been kind of a shortage of salt. And this is something that is outside of the insured's control. So the insured can't be held either the insured is the landlord, the tenant, or the snow removal person. That's not something that they can be held responsible for. And you and I have talked a lot about before how it's never 100% that the person who is walking also has to be aware of their surroundings. You know, you just you just can't be walking in stiletto labutans and expect not to twist an ankle or something.

William Auten 13:25

Right. And uh boy, when there is a salt shortage, I would I would recommend that people somehow, if you're a property owner or snow removal contractor, document that somehow because these cases most cases uh involve um a fractured wrist, fractured ankle, sprains, those kinds of things, bruises, confusions. But we have fatalities too. Um people who fall and uh um on ice and hit their head, you know, TBI, the the the uh number. Yeah. The the um the number one cause is a is a fall down. And uh slip and falls often result in people hitting their head on the pavement or on the ice, and those can be extremely bad.

Chantal Roberts 14:21

Um by the way, traumatic brain injuries, which would be a great topic for us to talk about, um, is is not only I mean resulting in death, but if you have a bad enough one, you could alter the um person's personality or functionability. I've handled those claims before too, where uh you have a normal, let's say, 34-year-old and they got into a car accident and now they're a five-year-old.

William Auten 14:57

So I mean and the the damages in in a case where so I mean, this is gonna sound terrible, but when someone is um incapacitated like that, the the damages part of that claim actually almost double because now you've got all the care throughout the rest of their life that they have to have, um, in addition to the lost income that they may have been able to earn throughout that lifetime.

Chantal Roberts 15:24

Yes.

William Auten 15:25

Um, and then on top of that, you've got the general damages, pain and suffering. Um, where if there's a fatality, you know, you don't have the you don't have the medical bill component uh of the those special damages.

Chantal Roberts 15:40

So but yes, you we need to um you need to somehow ask your insured, whoever that is, how do I know? Because I'm in Arkansas, I'm in Arizona, in California, I'm in Florida, you know, we don't have a saltage or a saltage, a salted short, a shortage of salt uh or ice melt or whatever. And there are other things, I suppose, that people could put down like sand or whatever, but not a lot of people think about that. And I don't, it's not necessarily that great or whatever.

William Auten 16:20

Um I don't think we've had a shortage this year. Last year we did because um we had so many rain, snow, ice events that and it it would rain and freeze, and then snow on top of it, and then rain on top of the snow, and then freeze again, and it was horrible. Yeah, yeah. And it was it was a huge portion of the state. So the the claims were just so widespread. Um this year it was mostly just constant snow and cold, where I think uh in the insurance world, the slip and fall cases really are starting to head our way now, but um, this being March, but um ice dams have been even worse. So I I think uh for people in the property side, the ice dams have been that's a whole other topic.

spinal Rules For Contractor Duty

Chantal Roberts 17:12

That's a whole nother podcast, as we like to say. So in in a lot of jurisdictions like New York, uh, where we have this happen a lot, uh the courts have established these situations where contractors um could owe a duty to third parties, and we don't necessarily see that a lot. Um every once in a while we'll see that in in insurance where there'll be like the long arm statute or uh where a third party can sue the insurer directly, like Louisiana, something like that. So um you have talked before and mentioned before the espinol uh framework. And I think you've got a poster in the back um on your door so that everybody can look at it as they as they come and go. Um so for people for our adjusters who who handle these liability claims but may not deal with New York and the espinall framework, uh, can you like walk me through that situation?

William Auten 18:15

Sure. So um the what it says is that in general, a snow removal contractor is not responsible for the safety of the property, uh, just by virtue of them being hired to remove snow and ice, that doesn't automatically make them responsible. Um, unless there are three conditions that are met, um, one of three. Uh, one is if they launch a force of harm, launching a force of harm. So, what does that mean?

Chantal Roberts 18:46

That's that sounds ominous, actually.

William Auten 18:48

Yeah, yeah. So uh this is not a uh Scud missile or anything.

Chantal Roberts 18:52

This is just a thank you because I was thinking weapons of mass destruction. Um Right.

William Auten 18:58

No, this is uh this is just a situation where the contractor actually creates a dangerous situation.

Chantal Roberts 19:04

So if they did something to make the the conditions worse somehow, so they chase someone with the Lamboni, for example, or they chase someone with their snow removal plow.

William Auten 19:16

Yeah, did you say did you say Lamboni? Did you mean Zamboni? Oh are you a hockey fan?

Chantal Roberts 19:25

Uh the the thing that clears off the ice, is it not a Lamboni? Is it is a Zamboni? Oh, you're right, it's a Zamboni. I'm yes, but yes, I've I've totally just showed my ignorance. Thanks for pointing it out, Bill.

William Auten 19:39

I would say that if the snow removal contractor shows up to your parking lot with a Zamboni, he's probably launching a force of her because what that does is just it just smooths the ice out and makes it more slippery for ice skates. So I would not um recommend using says that that's a bad thing, though. I'm just I would think. I would think.

Chantal Roberts 19:59

I mean, I'm just saying. Okay, go ahead. Uh so second one, obviously just showed myself that I'm from the South again. Again. Uh yes, I did. But you know what? I I do like hockey, but I go to hockey for all the wrong reasons.

William Auten 20:20

I'm going to watch the lamb, the Lamboni. I'm going for the fights. I'm going for the fights.

Chantal Roberts 20:25

And it sucks because like the refs or whatever they are, they're they're like totally like not doing fights anymore. And I'm like, dude, this is sucks. I want to fight. I mean scrappy. Yeah. I mean, what why else do you go see hockey?

William Auten 20:41

Oh, the sport, maybe. I don't know. The the majesty of the of the Olympics.

Chantal Roberts 20:47

Of the players on ice. No, I want I want to see some punches. Yeah. Anyway, yeah, Zambones, um, weapons of mass destruction. Okay, go ahead. That's number one.

William Auten 21:00

So number one. Number two is uh detrimental reliance. So the third party um the relied on the contractor's performance to keep the area safe. So if the contractor made a promise that, hey, don't worry, we're gonna keep your uh lot completely free of ice and snow, don't worry about it. We got it. So they did that and the contractor didn't keep it safe and someone falls, that's a detrimental reliance. So trusted that contractor to do to to to do what they said they were gonna do.

Chantal Roberts 21:36

Okay, so I have a question though. Okay, again, interrupting. Uh you said if the third party trusts the contractor to their detriment, well, how is a third party gonna know that there's a a contractor? Because that contract, by the way, adjusters, that contract, just like an insurance contract is between the insurer or the carrier and the insured duh. Policy holder, the contract for snow removal is going to be between the contractor and the insured, whoever the insured is, the landlord, the tenant, whatever. And so how would me going to, I don't know, let's say the mall or whatever, how would I know that there's, I mean, obviously, I would probably know because I live up in New York, because the mall owner isn't going to be out there with shoveling snow. But I guess how would we know?

William Auten 22:33

So it using the the word thre third party there is a bit confusing. But basically, if you are a um if you are a person on the property, a licensee on the property or an invitee, um, and you you're trusting that the property is going to be safe. So you're not really going to have a um any relationship with that snow removal contractor. But that reliance that that place is going to be safe is going to it's going to first extend to the property owner and then to the um to the contractor because of the promises that were made and and the representations that may have been made in that contract. So um so it's really the property owner uh that would have the detrimental reliance. Um but if it what what this part basically means is that if the contractor promised to remove snow at two inches and three or four inches fell and they didn't show up, and someone fell because um because the conditions were bad, uh that triggers this detrimental reliance. So okay.

Chantal Roberts 23:45

And what's the third one?

William Auten 23:47

Third one is comprehensive exclusive agreement, meaning that the contract uh places the um complete responsibility for the safety of the property onto the contractor.

Chantal Roberts 23:59

I wouldn't think that any contractor would sign up for that.

William Auten 24:02

You know, I wouldn't either, but boy, do we see some interesting contracts around here. Really? Um yeah.

Chantal Roberts 24:08

Oh, do they just not know?

William Auten 24:11

I think it's um I think it's cases where the property owner is drafting the contract. So it's a contract of adhesion, and they they slide it across the table and say, You want to you want this contract and you want this uh big check here to work for us, um, you've got to sign this contract. And it makes the contractor promise to, you know, make sure everything is completely spotless and dry and safe all the time. Yeah. And um, you know, if they promise to do that, and they it's it's impossible. So, you know, yeah, um, but those are the three exceptions. Otherwise, just because you're a snow removal contractor doesn't make you automatically responsible when someone slips and falls.

inding Reliable Weather Data

Chantal Roberts 24:54

Yeah. All right. Well, I mean, and that it it's kind of it's kind of fascinating. Um you were talking about ice damming and earlier, and I think we've talked about that maybe last year about this time, you know. So if anybody's interested, go back and and look at those um things. And what we've got is the whole, you would think ice is not that difficult. It you know, gets below 32 degrees or zero degrees, and you know, water freezes, and that's the whole science behind ice formation, and then you've got this rock salt, uh, it becomes less effective once temperatures drop below a certain level, which I don't think I knew, uh except for when we had a really bad cold snap. So, how important is it to get good weather data? And like you said, it's getting harder and harder to come by. And so what sources should they look at um in these sorts of things? What patterns should they be looking at?

William Auten 26:02

So, news reports are always gonna talk about the weather if it's extreme. Uh, so if you've got an extreme cold snap, there's probably gonna be uh news reports about it. Uh weather records, um, you know, we usually go to NOAA, the website, uh the uh national, what is Oceanic Oceanic and Atmospheric Administration.

Chantal Roberts 26:25

Yes, NOAA. We'll put the the link in the show notes, but NOAA is absolutely fabulous. By the way, just off topic real quick, because we will be rapidly hitting hurricane season on June 1st. I use NOAA to watch the hurricanes. So yeah. Um now one interesting um I've also used I've also mentioned Weather Underground before because weather underground has uh if you scroll down towards the bottom, you can go to a specific um date and time, and they'll give you like wind gusts and and that sort of thing. While you look, let me know because I have another idea.

William Auten 27:08

So we we recently um uh Riley here discovered that the NOAA is now retiring some of its data sets. And uh the message, I'll read it right here. This is direct from NOAA. Several specific NOAA data products, such as those related to marine, coastal, and in some cases snow and ice tracking, have been slated for decommissioning by mid-2025, affecting the availability of ongoing data into 2026. Now, we have already seen or have had problems getting data. Um, so we're in the process of uh trying to figure out how going forward, because we had a whole process in place for pulling these reports from NOAA. Uh, we're gonna have to figure out you know what what new system they may have in place.

Chantal Roberts 28:00

Um I guess that's everyone is gonna be having that problem, even weather underground and and all of that, because I know weather underground usually relies on NOAA uh and and some of that. So excuse me, uh you were trying to say yes.

William Auten 28:18

They uh yeah, weather underground pulls the data from uh the weather stations um that NOAA maintains. And the other thing I've learned about NOAA and the weather stations is that you know you can get certified weather data, meaning that NOAA will certify that the that the data is all correct. And um that's really what we need as evidence in the case of a lawsuit. Um in bad cases, we'll actually have a meteorologist as an expert witness that will provide commentary and um you know expert analysis of those weather records.

Chantal Roberts 28:53

And that's what I was going to suggest too, is if push comes to shove and it is a case where God forbid we have that kind of disability that we were talking about earlier with a TBI traumatic brain injury, or uh there's there is a death, and we're having to prove up damages or something to that effect. This is when you would like to get, and maybe you want to suggest to your team leader to get a forensic, um say the word again, Bill, because I'm gonna call it as a lambie or something like that, meteorologist.

William Auten 29:33

Meteorologist, yes.

Chantal Roberts 29:34

Yes, where you want to get a forensic meteorologist to verify that this is this is what happens. And I would think, look, if adjusters, if we need to, we have to get a little scrappy. And we used to be this way, uh, and we kind of got a little complacent when we got the internet because everything was at our fingertips. But if some of these things are being discommissioned, we or decommissioned, excuse me, I'm full of malappropriatisms today, aren't I? Uh if if these things are being decommissioned, then we need to get a little scrappy in our thinking. And so what I would suggest, it might not be 100% effective or 100% foolproof, but go to that local news uh you know, TV, whatever on the website and pull up what they said their weather was for that night or day or whatever, uh, and put that in your file. At least it is something that you have done to show what the weather is. And then if we have to get a meteorologist, then we do.

William Auten 30:53

Yeah, and you know, even if you got the records, even if you have them in your hand, what makes you qualified to analyze them and really say uh what the weather conditions were at the specific lost location? Because these weather stations, um you the ones that issue certified reports are often like airports and things like that. And then there's hundreds of other smaller weather stations that are maintained by like volunteers and stuff. And I I don't think I'm not sure, but I'm I don't think those are certain you can get certified records from them. Um so again, if if it's a serious, serious case, you don't want to make assumptions about what you're looking at in those reports. Um you can look at the little legend and do some analysis as to what you see here in terms of snow events and and things like that. But um in big cases, you want to make sure that um you have an expert review that and give the correct interpretation um because it may not favor you. It may or may not favor you. Right. And if you've got you know a million-dollar policy limit at stake, you're gonna want to know for sure.

ield Evidence Photos And Canvassing

Chantal Roberts 32:09

Absolutely, absolutely. Yeah, uh we could have seen, you know, you you you could have had a better outcome in in the file, uh, or different, a very different outcome in the file if if you would have had good data at that time, um, you know, and not just wait and wait and wait. And it because a claim doesn't get better the the longer you wait or waiting for documentation. So um what are some of the key pieces of, I mean, we've talked a little bit about it, you know, logs. What are some of the key pieces of documentation that we should that we should be getting about logs, weather reports, um, of course, talking to any witnesses, the insured, the contractor, getting those recorded statements, guys, so very important. And I know it's kind of cringe, nobody wants to take a recorded statement anymore, but it's very, very important because memories change because these lawsuits happen two, three, four years later.

William Auten 33:17

Yep, memories fade, conditions change. Sometimes parking lots get completely replaced.

Chantal Roberts 33:22

Yeah.

William Auten 33:23

Um, and and your your your potential evidence is gone. So uh get there and get the photos. You know, even if you are there uh, you know, in the warmer weather when the snow's all melted, at least you've got a documentation of the lay of the land. Whether there's any low spots or potholes or anything that could collect water and freeze, um, you can look at uh gutters. It's important to pay attention to how the water flows at this property. If it uh comes off the roof and and comes out of gutters and leaks onto the pavement, that's kind of important to know uh if somebody slipped and fell in that area. Um and then when you're there at the site, if it's in a store or apartment building, whatever, there's people around. Just talk to people, ask them if they know anything. And you know, 75% of the time they'll say, I never I never even knew that something happened. Uh, but that 25%, you'll you'll find somebody, you know what? I was there when that happened and I almost fell myself. And here's why.

Chantal Roberts 34:31

Yeah. Uh you tell a great story, I believe, about a diner where you had done, and it's called a neighborhood canvas, if anybody particularly cares to know the old-timey terms or just a canvas. And you what you do is you do you go around to the other stores, the other houses, whatever, and ask if you had seen this particular accident. And I think you tell a story about like a diner where an accident had happened, not the one that the car had run into the diner, but there was a person who had been eating at this diner and they had seen the accident. And you know, they were just a customer, a random customer. So finding that random customer again is I mean, a needle in the haystack, but you never know until you ask.

William Auten 35:21

Yeah, that was um that was actually a story from the instructor at at Vail um in Harrisburg, Pennsylvania in like 1995 or 1996.

Chantal Roberts 35:36

Wow, how do I remember that?

William Auten 35:37

It's just a story that's always stuck with me. But he uh he was working on this this horrible case um where this this man, I believe it was a man who was injured, and um he was like a quadriplegic and um, you know, huge life care issues, um lost income, just a huge, huge claim. And um they they there was a question about speed, uh, whether or not this guy was going the appropriate speed. There was a hill, it was a blind area, um, uh like a blind spot in the road. So he was he went to this diner and he was just talking with a friend um about the claim, and a table across from him heard him and said, Oh, I I remember that. I was there, I saw that car come off the hill. He was going over a hundred miles an hour. And um they were able to get that guy uh involved as a as a witness and um wound up, you know, getting the uh the claimant wound up getting a bunch of money for it. So I'm I I don't know what all the relationships were. Yeah. Uh the the person instructing me was uh uh us was was with an insurance, you know, background and and uh he may have been a co-defendant or what I don't really know. But it was important to identify what really happened there. So you never know when you have a conversation with somebody um or start one with somebody, what they may tell you.

idewalk Ordinances And Municipal Deadlines

Chantal Roberts 37:10

Right, right. Uh also a very good point to make here is to listen. You know, listen to to what people are saying uh so that you can ask those those next questions, which could be, you know, we've been talking about parking lots and the parking lot may have changed, which is a key point because sometimes the tenant may not be in charge of the parking lot, but they are or responsible for the parking lot, but they are responsible for, let's say, the walkway or the sidewalk in front of them. So for example, I know in New York, City, I believe, New York City, the tenant is responsible for the sidewalk that's immediately in front of them, even though they don't necessarily own that. And so knowing who it owns or who is responsible for what is also very, very important. And in this particular instance, you're going to find these sorts of things maybe in the municipal codes or something to that effect. So knowing what that is, what you're responsible for is extremely important when making your liability analysis. What else do adjusters need to know about that?

William Auten 38:35

Yeah, so we do a search of the sidewalk ordinance in whatever city or town that it happened in. And usually there'll be some sort of language about, you know, who's responsible to keep the sidewalks clear of ice, snow, debris, trash, whatever. Um it gets complicated because uh sometimes the the uh code is silent about that.

Chantal Roberts 38:57

Okay. So what happens in that instance?

William Auten 39:01

Well, it gets complicated in New York here because so uh there's a special um uh special defense that municipalities have and you have to place them on notice and within 30 days of an incident. And if you're if you don't place them on notice within 30 days and and conduct what's called a 58 hearing, um your claim is basically barred. Uh so if you think a municipality is involved in New York, you better get them involved really quick. So you've gone silent on me.

Chantal Roberts 39:47

Sorry, can you hear me now?

William Auten 39:48

Yes.

Chantal Roberts 39:49

Okay. Um I wanna point out that you had said the um municipality needs to know within 30 days of the incident because sometimes we don't know when that is. Because we're not we we're not told.

William Auten 40:06

You know, we don't know.

Chantal Roberts 40:07

We don't often get the notice of claim or the loss notice until two years later, you know, 15 or yeah, not 15, but uh 45 days later. I mean, so the time is already gone. So it's not from when we find out, it's from when the loss occurred. Is that right?

William Auten 40:28

Yes. Yep.

Chantal Roberts 40:31

Well, that sucks.

William Auten 40:33

Yep. And it also the bur the burden is on the on the claimant, really, too. Well, this is true.

Chantal Roberts 40:39

It it always is, by the way. Um, adjusters. Uh although we are here to help, it is always the burden of the person who is making the claim to to prove up their claim. And sometimes that applies in first party property claims, too, by the way, FYI. Yeah, yeah. Uh what I was gonna uh um say is something that I've already forgotten. So I don't know.

William Auten 41:06

Let's Well back to the topic of sidewalks versus parking areas. Um snow removal contracts will often be very specific about who's responsible for what. And they'll, you know, some contractors will just come through to plow and they'll say something along the lines of look, we're not responsible for snow that's between the cars because we can't get our truck in there. Um uh or I saw one the other day where it had a um it had a requirement that the owner make sure that they move the cars so that those areas can be cleared. Um one guy said he would come, you know, and I forget how it was written, but I think he promised to come back to make sure it was it was a very, very uh over promising kind of contract that just uh said, you know, we'll do everything we can always.

ndemnity Clauses And Additional Insured

Chantal Roberts 42:01

So yeah. Yeah. Uh so I would assume, and this is you know what happens when we assume that when there is a claim and or well, I would assume okay, let's let's back up first. When we're talking about the contract, a lot of times these contracts will have these indemnity clauses. And for newer adjusters, the indemnity clause will say that the contractor will indemnify or will you know pay the landlord or the tenant or whoever hired them if a claim is filed. So in this particular instance, let's say someone slipped and fell on uh the landlord's property and the claimant who slipped and fell has a claim against the landlord. And the landlord would then turn right back around and file a claim or tell the claimant, hey, you need to file a claim with the snow removal people, right?

William Auten 43:04

Kind of what uh typically happens with us on a landlord case is we'll get the lease and take a look at that and we'll see whether or not the like who promises to defend and indemnify who. And there may be no language like that at all. Typically there is. And um, you know, if the if the property owner agrees to defend and indemnify the tenant, then we're gonna place that landowner, property owner on notice. So we're gonna send them a letter that says you need to notify your insurance company of this potential claim. And then um, but in many cases there's also additional insured requirement, meaning that the the uh the lease agreement says that one party will add the other party as additional insured and provide a certificate. If we have a certificate, we know who the carrier is, we'll just put them on notice. Um and then There are similar um provisions in snow removal contracts too. So the contractor may promise to defend and indemnify everybody and add them as additional insured. Now those additional insured endorsements can be a little tricky because some of them are very conditional on like only if it's only if it's our guy's fault will we indemnify you in a lawsuit. Um others are um primary and non-contributory, meaning that uh it doesn't matter if you know it doesn't matter who did it, you're gonna defend and indemnify us no matter whose fault it is. Um you're primary. You're insurance why would you sign that thing?

Chantal Roberts 44:45

But I mean I get it.

William Auten 44:48

Well, that's that's uh those forms are out there, you know. Yeah, yeah, no. You can buy that insurance, and a lot of uh a lot of businesses require that you add them as primary, non-contributory. It's I don't insurance, you know, underwriting is the is where the rubber hits the road sometimes. We always say that's where claims uh lie.

Chantal Roberts 45:09

Yeah, yeah, yeah, yeah. Um but I would think too that we would also need to look very specifically at the policy, because would this be considered to be products operations completed? And usually we don't we don't pay for that, or there's there are exclusions for the for the operations that we've done. Um is is that particularly correct?

William Auten 45:36

I don't think so. A product's completed operations. So um a product is something that you maybe manufacture and put out the. Um so completed operations, um maybe, but I I think that more that relates more to um, you know, if you're an HVAC guy and you work on the furnace and you break the furnace, that's um, you know, you're on the hook for that.

Chantal Roberts 46:05

Yeah, I mean, I've seen it mostly where we talk about like food, where you get food poisoning or whatever, and the completed ops is the food product, that's the completed product or completed operation. Um, but it just occurred to me that we are talking about the CGL, the commercial general liability policy. And and we do have these product completed operations. And the the completed operation would be the clearing of the snow or the icing or something like that, because that's what you're doing. But it but you're right, it is more kind of like a service. So this isn't something that an adjuster should be going like, oh, well, this is what we're doing, and so we got to deny it, blah, blah, blah. Because what would be the purpose of having insurance?

William Auten 46:48

Right, right. Um, I so on the CGL, there's an exclusion for property in your care custody control. So if if you're working on somebody's thing at your shop and it's and you break it, I think the products completed operations may pick up coverage in a situation like that. Anyway, that's that's far removed from snow removal contracts.

olicy Confusion And Who Gets Sued

Chantal Roberts 47:15

So yeah, but you know, I can see a younger adjuster getting a little kerfuffled about that, you know, because if you are I'm an older one and I get kerfuffled about it. Well, this is true. This is what I think makes claims really interesting. Uh uh Aaron and I had a discussion yesterday about the way that a deck sheet was worded, it looked like there was a deductible for business, personal property, and then the building. And so the question was then do I apply two deductibles, one to the contents and one to the building? And again, you have to go back to the policy and and read how that is worded. Uh, you know, and and and so sometimes it does get a little confusing when you have to take all of these little bitty pieces and put them all together. So I can see how someone would get a little confused over this, like, oh, well, is the property in my care custody and control while I'm doing the snow removal? Well, I I would argue no.

William Auten 48:24

I would argue I would argue no too.

Chantal Roberts 48:25

Yeah, I would argue that it's not.

William Auten 48:27

So um I think if you if you go to a property and do work on that property, whether it's the roof or an appliance or the parking lot, that property is not in your care custody and control. You're there uh working on it as uh invitee. Uh you're you're not you don't have custody of it. Um and the insured is probably the best person to answer that question. If you're looking to to figure out if there's a care custody and control situation, take a statement and ask, was this in your care? Well, yeah, it was in my care. Was it in your custody? Well, it wasn't my custody, I was there, but it you know, so asking the policy holder those three questions will get you to your answer in most cases.

Chantal Roberts 49:18

Yeah. So when we've got these kind of claims, everybody gets named in these in these lawsuits or these these claims like I was talking about earlier. Uh and there's a there's a reason why plaintiff attorneys do it, um but uh which is you know, everybody's got a pocket, I suppose.

William Auten 49:40

So Yeah, I think there's there's probably two reasons. One is uh the more the merrier, the more uh policy limits they can bring into the fold, the the higher the likelihood that they'll increase their net uh settlement amount. Uh the other reason is all these nuanced details about contracts and weather records and all this stuff, um it takes a while to sort out. And even if Mr. Adjuster goes to that plaintiff attorney and says, We've already done did all the investigation, here's all the paperwork, and here's how it goes, and we can tell you that our guy isn't uh uh liable here because um, you know, because of uh because of espinol and all these other reasons. And uh the attorney can look at that and say, Well, that's fine, but my my client is, you know, disabled for the next 30 years of their life, and I need to make sure. So we're gonna name everybody and uh we're gonna sort this out through litigation.

ew York Impleader Time Pressure

Chantal Roberts 50:45

And you had a great eight-piece blog uh topic where you were talking about uh what happens in New York when uh you've got you get like a lawsuit and the expediated, I suppose, uh investigation that goes on. So like now, even though you get a a a lawsuit, you can't slow roll your investigation. Is that right?

William Auten 51:15

Yeah, so that has to do with third party and pleader. Um so if in a case like us like this, um let's say the uh tenant and the snow removal contractor are both named, they both feel like the property owner should be named here because they have the ultimate responsibility. Um if you want to implede them into the case, you have 30 days to do that. You and the reason they've changed that is because people would uh attorneys would use that as a delay tactic. And they would say, well, you know, we we've got this third party, we want to involve them. And they would wait a year and a half to finally impleed them, and then now you've got to they've gotta basically start the investigation from scratch.

Chantal Roberts 52:08

A year and a half later.

William Auten 52:10

Yeah, so it just drags things out. So the theory is we're gonna come compress that time, and if you miss that window, too bad, so sad. Um, we're we're moving forward.

Chantal Roberts 52:21

Right.

William Auten 52:21

Um, whether or not it's a good idea or bad idea, I will leave up to uh you know everybody in the claims world about uh whether or not this legislation is um a good idea. But the bottom line is it just puts um more pressure on the claims department and their defense attorneys to identify third parties as soon as possible and get them involved in the case.

unknown 52:49

Yeah.

Chantal Roberts 52:50

Yeah, absolutely.

William Auten 52:51

Not just not just notice, but actually filing a third party action against them.

Chantal Roberts 52:57

Oh, like so actually naming them in the court process, yeah.

William Auten 53:01

Yeah, yeah.

Chantal Roberts 53:02

Okay. Um, so in closing, what what should our adjusters be definitely looking at?

William Auten 53:11

Oh, all the paperwork. Get all the paperwork, the the contracts, the property management agreements, the s the snow removal contracts, the weather records, the statements, the photos. Um what else? I think that's about it. Uh, if you get those items, you're in pretty good shape.

Chantal Roberts 53:28

And photographs of the scene.

William Auten 53:30

Every case is different. So you may find that there's some other documentation. Maybe you need the deed. Uh, maybe there's a question of ownership, you know. Um, I have a case where our insured um owns a building, but doesn't own the land that the building is on. That's new to me. Oh, really? Yeah, a municipality actually owns the land that the building is on. Yeah.

rap Up Next Topic And CTAs

Chantal Roberts 53:59

That's interesting. Uh, because I mean I think I've seen it mostly before where because I wouldn't think that it would be any different than you know, a tenant or whatever, where they own the building or sometimes the the well, it's a whole different thing. Okay, anyway. Our our next our next podcast uh is going to be a course in two weeks on March 26th. And and we're gonna be talking about water damage and frozen pipes, which I am super excited about because it it happened to me a um few, well, I guess in January, so a couple months ago, and so much fun because because right now we've just been getting nothing but but rain and rain and rain and rain and rain. So uh we're gonna talk about my claim a lot, mostly. So it'll be fun.

William Auten 54:55

I have I have one uh a teaser. I've got the the biggest misunderstanding that happens with frozen pipe claims. It's not a huge it's not a huge uh value issue, so it doesn't really come up as like a legal dispute or anything, but it's just a technical thing that a lot of people get wrong.

Chantal Roberts 55:14

Okay, you want to tease it or you want to just like just say that's it. Oh, oh, oh, I just thought I well, sorry, I thought you were gonna be like, and and and so clickbait, um 10 things that adjusters get wrong, or I don't know, whatever.

William Auten 55:29

Well, that's just one thing, and it's just something that I know of.

Chantal Roberts 55:32

So um but you know everything, Bill.

William Auten 55:36

I don't know everything, and it's not something just I know. I didn't that didn't come out right. Uh a lot of people know this, but um I I wind up counseling young adjusters on this topic a lot.

Chantal Roberts 55:47

So so it's gonna be very important. So we will see you in two weeks.

William Auten 55:53

Yes, ma'am.

Chantal Roberts 55:54

Oh, oh, be sure to like, subscribe, comment, all of those fun thuff so that we can get more than you know, 15 people listening to us at any given point in time.

William Auten 56:05

I'm gonna go warm up the Lamboni.

Chantal Roberts 56:07

Yeah, oh, thanks. I want to see it. Bye.

William Auten 56:11

Thanks for joining us on the Art of Adjusting Podcast, where we talk about life as an insurance adjuster. Hit that subscribe button real quick and tell all of your adjuster friends to check this out as well. For independent adjusting services, go to www.autin.claims. And for anyone interested in working as an independent liability adjuster, go to the contact us tab to join our roster.

Chantal Roberts 56:34

So this wraps up another Art of Adjusting podcast. If you enjoyed this podcast or this episode, please give us five stars and a review. It does help the algorithm pick us up. In the meantime, you can contact me at theartofadjusting.com for consulting and training purposes.