Guest guest Posted November 21, 2011 Report Share Posted November 21, 2011 Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 21, 2011 Report Share Posted November 21, 2011 I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 21, 2011 Report Share Posted November 21, 2011 I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations.No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification?Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.)This is kind of the crux of the question, when should we indemnify and when shouldn't we?Bob I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 21, 2011 Report Share Posted November 21, 2011 Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Dear List: I think indemnity clauses need to be reciprocal. The wording in my Services Agreement follows: Section 5. Indemnification. Client shall defend, indemnify, and hold Consultant and his employees, servants, consultants, agents, successors, and assigns harmless from and against any claim asserted by any person or entity (other than an officer, director, employee, or subcontractor of Consultant) arising out of (i) Client's acts, errors, and omissions, (ii) Client's negligence or (iii) Client's breach of any obligation or responsibility imposed on him by the provisions of this Agreement, except in the case of errors, omissions, or negligence in the work performed by Consultant. Likewise, Consultant shall defend, indemnify, and hold Client and their employees, servants, consultants, agents, successors, and assigns harmless from and against any claim asserted by any person or entity (other than an officer, director, employee, or subcontractor of Client) arising out of (i) Consultant's acts, errors, and omissions, (ii) Consultant’s negligence or (iii) Consultant's breach of any obligation or responsibility imposed on him by the provisions of this Agreement, except in the case of errors, omissions, or negligence in the work performed by Client. I welcome any comments or suggested changes to this wording. Also, feel free to adopt this in your service agreements if you wish to do so. Cheers and best wishes for a grateful Thanksgiving, Dydek Dr. S. Dydek, Ph.D., D.A.B.T., P.E. Principal Toxicologist and Engineer Dydek Toxicology Consulting 5208 Avenue H Austin, Texas 78751 Web Site: www.tox-expert.com Office Phone: Office FAX: Mobile Phone: Now Celebrating 17 Years of Consulting Practice ======================================================================================================================= Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob On Nov 21, 2011, at 1:20 PM, Shell Bleiweiss wrote: I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Bob, If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel. If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify and resolve a problem, I don't want the job. Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Shell, The analogy I use is whether consulting is similar to a product. If a company makes a product that does not perform as claimed, then in most cases, the customer is able to return the product and get their money back. If someone gets hurt from a product, then one must show negligence, or some other defect to result in liability. But is consulting different? We are not making a product, we are only giving an opinion. In effect, with indemnity clauses, consultants opinions must be 100% correct all the time, otherwise they are liable. Even in science, nothing is always 100%, so why are consultants held to a 100% standard by these clauses?This indemnity clause basically forces a consultant to be liable for everything without the plaintiff having to show negligence or defect. It, in effect, is righting a new law that makes consultants automatically having to pay any and all the legal bills. What we need is a disclaimer-or something- that can defeat this "no win" indemnity cause. After all, isn't some "consideration" is required in a contract?Bob Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 You may have misunderstood me Bob, but I disagree with your premise that consultants give a 100% guarantee. The indemnity provisions I would propose are for negligence or worse. They are not absolute liability provisions. See Tom’s language for an example. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Tuesday, November 22, 2011 8:52 AM To: iequality Subject: Re: Indemnification Clauses Shell, The analogy I use is whether consulting is similar to a product. If a company makes a product that does not perform as claimed, then in most cases, the customer is able to return the product and get their money back. If someone gets hurt from a product, then one must show negligence, or some other defect to result in liability. But is consulting different? We are not making a product, we are only giving an opinion. In effect, with indemnity clauses, consultants opinions must be 100% correct all the time, otherwise they are liable. Even in science, nothing is always 100%, so why are consultants held to a 100% standard by these clauses? This indemnity clause basically forces a consultant to be liable for everything without the plaintiff having to show negligence or defect. It, in effect, is righting a new law that makes consultants automatically having to pay any and all the legal bills. What we need is a disclaimer-or something- that can defeat this " no win " indemnity cause. After all, isn't some " consideration " is required in a contract? Bob Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Steve: I don’t think it is realistic to expect that your client will allow you to dictate who he hires or pay you to oversee their work just to protect you from perceived liability. But I also don’t think your concern about being sued for failure to follow your recommendations or shoddy implementation is a real concern. Yes, anyone can be sued for anything in this world. So buy insurance. But it is not likely you will be held liable for failure to follow your advice or doing so poorly. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 8:32 AM To: iequality Subject: Re: Indemnification Clauses Bob, If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel. If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify and resolve a problem, I don't want the job. Steve Temes -----Original Message----- To: iequality <iequality > Sent: Tue, Nov 22, 2011 9:04 am Subject: RE: Indemnification Clauses Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob On Nov 21, 2011, at 1:20 PM, Shell Bleiweiss wrote: I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Hi, folks: Interesting discussion! Here is our Indemnification Clause, written as part of our General Terms and Conditions, attached to every proposal: 'INDEMNIFICATION: The COMPANY shall hold harmless and indemnify the CLIENT from any claims, demands, or liabilities for injury to or death of personnel, and damage to third party property, arising out of the negligent acts or omissions of the COMPANY, its officers, agents or employees. HOWEVER, nothing herein shall be construed to mean that the COMPANY shall hold harmless and indemnify the CLIENT from claims, demands, or liabilities arising out of any acts or omissions of the CLIENT, its officers, agents or employees.' This has worked for the past nineteen years, and all of our Clients are required to sign the agreement before we start work. Don > > > > > > > > > > > I can't answer for the IAQ pros, but I can tell you that environmental > contractors of all sorts routinely sign them, as long as they are fair of > course. So for example, I don't expect them to sign one making them > responsible for the contamination they found at the site, but I do expect > them to sign one for any negligence, willful acts or breach of contract. > > > > Shell Bleiweiss > > Law Offices of Shell J. Bleiweiss > > Environmental and OSHA Law > > Offices in Chicago and Barrington, Illinois > > (direct) > > (general) > > sbleiweiss@... > > http://www.shell-bleiweiss.com <http://www.shell-bleiweiss.com/> > > > > _____ > > From: <mailto:iequality > iequality > [mailto:iequality ] On Behalf Of Bob s > Sent: Monday, November 21, 2011 10:16 AM > To: iequality > Subject: Indemnification Clauses > > > > > > Do you sign indemnification clauses on contracts? > Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Shell, I just had a property manager ask me for references for mold remediation contractors to implement my recommendations. He hired a contractor that was not on my long list, who just sprayed over the mold. He then brought me back to inspect and approve the work, which was proposed based on my recommendations. His intent was clearly to make me responsible for what the contractor did because they were following my recommendations (even though they did not). I was not advised in advance of who he hired or what they were going to do. It was my strong sense that I was being set up for the property manager to blame me for what the contractor did. When I finally got him to arrange a meeting between the three of us, I was able to get things back on track. That was only after I wrote to him that it was HIS contractor who screwed up and not one of the six I referred to him as being qualified after he had specifically asked me who he should get proposals from. This week the contractor will be dry ice blasting off many gallons of encapsulant that they sprayed on last week to get down to clean wood subflooring and joists. Sometimes clients do set up consultants to unfairly absorb liability. It may not be realistic to expect that they will hire me to oversee the work I recommend, but I see no reason not to include it in a report just the same when the potential for the client to screw up and blame me is high. I once overheard an attorney school board member tell another board member that they would hire a consultant and do what he recommended and if there were any problems afterward, they could blame the consultant. I have heard realtors and prospective buyers say that the reason to hire a home inspector is so that there is someone to sue if there is a problem after they buy the house. Who would want to work for these people knowing that that is the reason they want to hire you? It is a very real concern. Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Shell, I have a professional friend who used to do fire safety consulting. He would tell companies how to build facilities to comply with the various fire codes. When they didn't follow his advice and the facility burned, he would get repeatedly sued. I got involved in one of these cases. My speciality was how coating ovens explode. The corporation's excuse was "we wanted a chevy and not a cadillac". Not a good answer to the employee who got burned on 60% of her body. Needless to say, after numerous suits, he could not longer get insurance, and went out of business. I am always reminded of these cases, especially when dealing with mold and whether remediation is complete. Or when the building owner is supposed to remove the water damaged and moldy roofing materials. You are asked whether the job is remediated? You did not supervise the work, you did not see the work and you only have limited sampling to base you opinion on. And we have people like connell who will testify that sampling is worthless. Given this background, indemnity clauses, are some I think are unreasonable. Bob Steve: I don’t think it is realistic to expect that your client will allow you to dictate who he hires or pay you to oversee their work just to protect you from perceived liability. But I also don’t think your concern about being sued for failure to follow your recommendations or shoddy implementation is a real concern. Yes, anyone can be sued for anything in this world. So buy insurance. But it is not likely you will be held liable for failure to follow your advice or doing so poorly. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 8:32 AM To: iequality Subject: Re: Indemnification Clauses Bob, If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel. If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify and resolve a problem, I don't want the job. Steve Temes -----Original Message----- To: iequality <iequality > Sent: Tue, Nov 22, 2011 9:04 am Subject: RE: Indemnification Clauses Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob On Nov 21, 2011, at 1:20 PM, Shell Bleiweiss wrote: I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Tom: This is a truly helpful post. It reinforces what I was taught years ago about contracting principles for engineers and architects. You should be liable for your negligence (errors and omissions) and so should the other party. I will sign unfair contracts but with markups or deletions of onerous clauses and let the other party react. Sometimes their urgency to get a project completed will influence their negotiations. Thanks,Don Dear List: I think indemnity clauses need to be reciprocal. The wording in my Services Agreement follows: Section 5. Indemnification. Client shall defend, indemnify, and hold Consultant and his employees, servants, consultants, agents, successors, and assigns harmless from and against any claim asserted by any person or entity (other than an officer, director, employee, or subcontractor of Consultant) arising out of (i) Client's acts, errors, and omissions, (ii) Client's negligence or (iii) Client's breach of any obligation or responsibility imposed on him by the provisions of this Agreement, except in the case of errors, omissions, or negligence in the work performed by Consultant. Likewise, Consultant shall defend, indemnify, and hold Client and their employees, servants, consultants, agents, successors, and assigns harmless from and against any claim asserted by any person or entity (other than an officer, director, employee, or subcontractor of Client) arising out of (i) Consultant's acts, errors, and omissions, (ii) Consultant’s negligence or (iii) Consultant's breach of any obligation or responsibility imposed on him by the provisions of this Agreement, except in the case of errors, omissions, or negligence in the work performed by Client. I welcome any comments or suggested changes to this wording. Also, feel free to adopt this in your service agreements if you wish to do so. Cheers and best wishes for a grateful Thanksgiving, Dydek Dr. S. Dydek, Ph.D., D.A.B.T., P.E. Principal Toxicologist and Engineer Dydek Toxicology Consulting 5208 Avenue H Austin, Texas 78751 Web Site: www.tox-expert.com Office Phone: Office FAX: Mobile Phone: Now Celebrating 17 Years of Consulting Practice ======================================================================================================================= Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 4:02 PM To: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob On Nov 21, 2011, at 1:20 PM, Shell Bleiweiss wrote: I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Monday, November 21, 2011 10:16 AM To: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Steve,I too have seen school districts pull off this game. These are the same "corporate' people who are on the school board. Gee, I wonder where they got the idea to screw to consultant? Something they learned at their corporations?Bob Shell, I just had a property manager ask me for references for mold remediation contractors to implement my recommendations. He hired a contractor that was not on my long list, who just sprayed over the mold. He then brought me back to inspect and approve the work, which was proposed based on my recommendations. His intent was clearly to make me responsible for what the contractor did because they were following my recommendations (even though they did not). I was not advised in advance of who he hired or what they were going to do. It was my strong sense that I was being set up for the property manager to blame me for what the contractor did. When I finally got him to arrange a meeting between the three of us, I was able to get things back on track. That was only after I wrote to him that it was HIS contractor who screwed up and not one of the six I referred to him as being qualified after he had specifically asked me who he should get proposals from. This week the contractor will be dry ice blasting off many gallons of encapsulant that they sprayed on last week to get down to clean wood subflooring and joists. Sometimes clients do set up consultants to unfairly absorb liability. It may not be realistic to expect that they will hire me to oversee the work I recommend, but I see no reason not to include it in a report just the same when the potential for the client to screw up and blame me is high. I once overheard an attorney school board member tell another board member that they would hire a consultant and do what he recommended and if there were any problems afterward, they could blame the consultant. I have heard realtors and prospective buyers say that the reason to hire a home inspector is so that there is someone to sue if there is a problem after they buy the house. Who would want to work for these people knowing that that is the reason they want to hire you? It is a very real concern. Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Steve: I think where we disagree is your statement: the potential for the client to screw up and blame me is high. To me there is a real disconnect between indemnifying a client against the consultants negligence and being blamed for a screw up by the client having little to do with the consultant. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 10:44 AM To: iequality Subject: Re: Indemnification Clauses Shell, I just had a property manager ask me for references for mold remediation contractors to implement my recommendations. He hired a contractor that was not on my long list, who just sprayed over the mold. He then brought me back to inspect and approve the work, which was proposed based on my recommendations. His intent was clearly to make me responsible for what the contractor did because they were following my recommendations (even though they did not). I was not advised in advance of who he hired or what they were going to do. It was my strong sense that I was being set up for the property manager to blame me for what the contractor did. When I finally got him to arrange a meeting between the three of us, I was able to get things back on track. That was only after I wrote to him that it was HIS contractor who screwed up and not one of the six I referred to him as being qualified after he had specifically asked me who he should get proposals from. This week the contractor will be dry ice blasting off many gallons of encapsulant that they sprayed on last week to get down to clean wood subflooring and joists. Sometimes clients do set up consultants to unfairly absorb liability. It may not be realistic to expect that they will hire me to oversee the work I recommend, but I see no reason not to include it in a report just the same when the potential for the client to screw up and blame me is high. I once overheard an attorney school board member tell another board member that they would hire a consultant and do what he recommended and if there were any problems afterward, they could blame the consultant. I have heard realtors and prospective buyers say that the reason to hire a home inspector is so that there is someone to sue if there is a problem after they buy the house. Who would want to work for these people knowing that that is the reason they want to hire you? It is a very real concern. Steve Temes -----Original Message----- To: iequality <iequality > Sent: Tue, Nov 22, 2011 11:00 am Subject: RE: Indemnification Clauses Steve: I don’t think it is realistic to expect that your client will allow you to dictate who he hires or pay you to oversee their work just to protect you from perceived liability. But I also don’t think your concern about being sued for failure to follow your recommendations or shoddy implementation is a real concern. Yes, anyone can be sued for anything in this world. So buy insurance. But it is not likely you will be held liable for failure to follow your advice or doing so poorly. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 8:32 AM To: iequality Subject: Re: Indemnification Clauses Bob, If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel. If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify and resolve a problem, I don't want the job. Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Bob: I suggest that you should not be certifying a remediation complete and correct if you did not oversee it. Beyond that, I continue to think you are being over-cautious and as you admit losing clients over it. Get insurance and go do good work. [And of course, if you do get sued, call me <g>]. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob s Sent: Tuesday, November 22, 2011 10:55 AM To: iequality Subject: Re: Indemnification Clauses Shell, I have a professional friend who used to do fire safety consulting. He would tell companies how to build facilities to comply with the various fire codes. When they didn't follow his advice and the facility burned, he would get repeatedly sued. I got involved in one of these cases. My speciality was how coating ovens explode. The corporation's excuse was " we wanted a chevy and not a cadillac " . Not a good answer to the employee who got burned on 60% of her body. Needless to say, after numerous suits, he could not longer get insurance, and went out of business. I am always reminded of these cases, especially when dealing with mold and whether remediation is complete. Or when the building owner is supposed to remove the water damaged and moldy roofing materials. You are asked whether the job is remediated? You did not supervise the work, you did not see the work and you only have limited sampling to base you opinion on. And we have people like connell who will testify that sampling is worthless. Given this background, indemnity clauses, are some I think are unreasonable. Bob Steve: I don’t think it is realistic to expect that your client will allow you to dictate who he hires or pay you to oversee their work just to protect you from perceived liability. But I also don’t think your concern about being sued for failure to follow your recommendations or shoddy implementation is a real concern. Yes, anyone can be sued for anything in this world. So buy insurance. But it is not likely you will be held liable for failure to follow your advice or doing so poorly. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 8:32 AM To: iequality Subject: Re: Indemnification Clauses Bob, If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel. If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify and resolve a problem, I don't want the job. Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Hire you to protect him from the attorneys who are working for his insurance company?Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Two things about that Steve. First, insurance companies often don’t have environmental lawyers like they do personal injury lawyers so they often will allow the insured to use the lawyer of their choice. Second, if the insurance company agrees to defend with a reservation of rights the insured always gets to choose its own counsel because of conflict of interest. So in many cases Bob would be free to hire his own lawyer who might be paid directly by the insurer. Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Offices in Chicago and Barrington, Illinois (direct) (general) sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 2:11 PM To: iequality Subject: Re: RE: Indemnification Clauses Hire you to protect him from the attorneys who are working for his insurance company? Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 22, 2011 Report Share Posted November 22, 2011 Re: Insurance and indemnification My company has been a defendant on a case where a room full of lawyers representing various parties on a claim were all pulling in pay cheques except for me. Our only participation in the action was simply being present in the space which involved an episode which triggered the law suit; we were not on-site for the reasons leading up to the action. As such we were eventually found not liable. 8 lawyers and a court stenographer were cashing cheques from the event – but not I - it was infuriating. An indemnification clause saved our butt, but only as it related to legal costs…at the end of the day, two years of my time and stress was worth zero, notta, ziltch. “Get insurance and go do good work … if you do get sued, call (a lawyer)”…sure and just hope some bonehead (present party excluded) doesn’t throw you on the radar screen when pulling the trigger. Paying for insurance, having indemnification and being collateral damage…the only thing missing was a politician offering up his empathy. Sorry Shell…chalk it up to Harlow, Maslow and Pavlov…”get insurance” and “hire a lawyer” all in the same sentence…for me it’s why God created the person who created the scotch we drank after getting out of purgatory. Bean, R.E.T., P.L.(Eng.)Registered Engineering Technologist - Building constructionProfessional Licensee (Engineering) - HVAC IMPORTANT NOTICE: This communication is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by email and delete the message. Thank you. From: iequality [mailto:iequality ] On Behalf Of Shell BleiweissSent: Tuesday, November 22, 2011 11:11 AMTo: iequality Subject: RE: Indemnification Clauses Bob: I suggest that you should not be certifying a remediation complete and correct if you did not oversee it. Beyond that, I continue to think you are being over-cautious and as you admit losing clients over it. Get insurance and go do good work. [And of course, if you do get sued, call me <g>]. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob sSent: Tuesday, November 22, 2011 10:55 AMTo: iequality Subject: Re: Indemnification Clauses Shell, I have a professional friend who used to do fire safety consulting. He would tell companies how to build facilities to comply with the various fire codes. When they didn't follow his advice and the facility burned, he would get repeatedly sued. I got involved in one of these cases. My speciality was how coating ovens explode. The corporation's excuse was " we wanted a chevy and not a cadillac " . Not a good answer to the employee who got burned on 60% of her body. Needless to say, after numerous suits, he could not longer get insurance, and went out of business. I am always reminded of these cases, especially when dealing with mold and whether remediation is complete. Or when the building owner is supposed to remove the water damaged and moldy roofing materials. You are asked whether the job is remediated? You did not supervise the work, you did not see the work and you only have limited sampling to base you opinion on. And we have people like connell who will testify that sampling is worthless. Given this background, indemnity clauses, are some I think are unreasonable. Bob Steve: I don’t think it is realistic to expect that your client will allow you to dictate who he hires or pay you to oversee their work just to protect you from perceived liability. But I also don’t think your concern about being sued for failure to follow your recommendations or shoddy implementation is a real concern. Yes, anyone can be sued for anything in this world. So buy insurance. But it is not likely you will be held liable for failure to follow your advice or doing so poorly. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve TemesSent: Tuesday, November 22, 2011 8:32 AMTo: iequality Subject: Re: Indemnification Clauses Bob,If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel.If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify and resolve a problem, I don't want the job.Steve Temes RE: Indemnification Clauses Bob: I can’t give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob sSent: Monday, November 21, 2011 4:02 PMTo: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob I can’t answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don’t expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob sSent: Monday, November 21, 2011 10:16 AMTo: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? No virus found in this message.Checked by AVG - www.avg.comVersion: 10.0.1411 / Virus Database: 2092/4032 - Release Date: 11/22/11No virus found in this message.Checked by AVG - www.avg.comVersion: 10.0.1411 / Virus Database: 2092/4032 - Release Date: 11/22/11No virus found in this message. Checked by AVG - www.avg.com Version: 10.0.1411 / Virus Database: 2092/4032 - Release Date: 11/22/11 Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 23, 2011 Report Share Posted November 23, 2011 Shell, That definitely gives the insured consultant a better shot at a real defense. In my experience, the defense attorneys assigned by the ins. co. just want to bill hours to the case and settle when they've milked it for long enough. Even if the consultant is completely innocent of all allegations, s/he will never get to prove it in court. As Bob was saying about his fire safety professional friend who was repeatedly sued whenever there was a fire in one of his clients' buildings, between the deductibles and premium increases, you won't remain in business very long even if you've done nothing wrong. Even if you are sued and found to be an improper party to the suit because you had nothing to do with what went wrong, it takes a lot to get out of it (i.e., be dismissed without prejudice, and without costs or fees). Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 23, 2011 Report Share Posted November 23, 2011 Bottom line: Life is not perfect (business climate either) but its better than the other alternative. Would it really have helped your two years of lost time of those lawyers and court reporter were also working for free?Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Chicago and Barrington, Illinois sbleiweiss@... http://www.shell-bleiweiss.com Sent: Tuesday, November 22, 2011 6:04 PMTo: iequality Subject: RE: Indemnification Clauses Re: Insurance and indemnification My company has been a defendant on a case where a room full of lawyers representing various parties on a claim were all pulling in pay cheques except for me. Our only participation in the action was simply being present in the space which involved an episode which triggered the law suit; we were not on-site for the reasons leading up to the action. As such we were eventually found not liable. 8 lawyers and a court stenographer were cash ing cheques from the event - but not I - it was infuriating. An indemnification clause saved our butt, but only as it related to legal costs.at the end of the day, two years of my time and stress was worth zero, notta, ziltch. "Get insurance and go do good work . if you do get sued, call (a lawyer)".sure and just hope some bonehead (present party excluded) doesn't throw you on the radar screen when pulling the trigger. Paying for insurance, having indemnification and being collateral damage.the only thing missing was a politician offering up his empathy. Sorry Shell.chalk it up to Harlow, Maslow and Pavlov."get insurance" and "hire a lawyer" all in the same sentence.for me it's why God created the person who created the scotch we drank after getting out of purgatory. Bean, R.E.T., P.L.(Eng.)Registered Engineering Technologist - Building constructionProfessional Licensee (Engineering) - HVAC IMPORTANT NOTICE: This communication is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by email and delete the message. Thank you. & nbs p;From: iequality [mailto:iequality ] On Behalf Of Shell BleiweissSent: Tuesday, November 22, 2011 11:11 AMTo: iequality Subject: RE: Indemnification Clauses Bob: I suggest that you should not be certifying a remediation complete and correct if you did not oversee it. Beyond that, I continue to think you are being over-cautious and as you admit losing clients over it. Get insurance and go do good work. [And of course, if you do get sued, call me <g>]. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob sSent: Tuesday, November 22, 2011 10:55 AMTo: iequality Subject: Re: Indemnification Clauses < p>Shell, I have a professional friend who used to do fire safety consulting. He would tell companies how to build facilities to comply with the various fire codes. When they didn't follow his advice and the facility burned, he would get repeatedly sued. I got involved in one of these cases. My speciality was how coating ovens explode. The corporation's excuse was "we wanted a chevy and not a cadillac". Not a good answer to the employee who got burned on 60% of her body. Needless to say, after numerous suits, he could not longer get insurance, and went out of business. I am always reminded of these cases, especially when dealing with mold and whether remediation is complete. Or when the building owner is supposed to remove the water damaged and moldy roofing materials. You are asked whether the job is remediated? You did not supervise the work, you did not see the work and you only have limited sampling to base you opinion on. And we have people like connell who will testify that sampling is worthless. Given this background, indemnity clauses, are some I think are unreasonable. Bob Steve: I don't think it is realistic to expect that your client will allow you to dictate who he hires or pay you to oversee their work just to protect you from perceived liability. But I also don't think your concern about being sued for failure to follow your recommendations or shoddy implementation is a real concern. Yes, anyone can be sued for anything in this world. S o buy insurance. But it is not likely you will be held liable for failure to follow your advice or doing so poorly. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve TemesSent: Tuesd ay, November 22, 2011 8:32 AMTo: iequality Subject: Re: Indemnification Clauses Bob,If you do indemnify the corporate client, you might want to include something in your report that requires them to seek your approval of anyone implementing your recommendations or even requires your supervision of the work. This way, when they screw it up when you aren't there, you can say that they hired the wrong contractor or used unqualified in-house personnel.If I sense that I am being hired for the primary purpose of absorbing liability, rather than to help identify an d resolve a problem, I don't want the job.Steve Temes RE: Indemnification Clauses Bob: I can't give you a blanket answer, but I think a consultant should be responsible for its work, and its mistakes. So my simple answer is you should be willing to indemnify in those circumstances. Shell BleiweissLaw Offic es of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@... http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob sSent: Monday, November 21, 2011 4:02 PMTo: iequality Subject: Re: Indemnification Clauses I just have a problem with little consulting firms agreeing to indemnify multi million/billion dollar corporations. No little firm can ever afford any of these legal expenses. If you don't perform, you can give them their money back. These people want the very bottom low price, but they don't want to pay for special insurance policies to cover such indemnifications (themselves) which can cause thousands of dollar for a single job. These clauses essentially move all the liability and expenses to everyone but themselves. Yet, in my experience, their profit motive is why they ignore regulations, standards, and doing the job right. I find it ironic that if they are making sure they comply with standards by hiring competent consultants, why would they need indemnification? Unless we have total control over a job, we don't ever indemnify anyone. This has cost us business many times. But, having been in business for over 27 years, I am glad I don't have to worry about legal expenses related to previous clients not following our advice or regulations (and some of them have got caught.) This is kind of the crux of the question, when should we indemnify and when shouldn't we? Bob I can't answer for the IAQ pros, but I can tell you that environmental contractors of all sorts routinely sign them, as long as they are fair of course. So for example, I don't expect them to sign one making them responsible for the contamination they found at the site, but I do expect them to sign one for any negligence, willful acts or breach of contract. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Bob sSent: Monday, November 21, 2011 10:16 AMTo: iequality Subject: Indemnification Clauses Do you sign indemnification clauses on contracts? No virus found in this message.Checked by AVG - www.avg.comVersion: 10.0.1411 / Virus Database: 2092/4032 - Release Date: 11/22/11No virus found in this message.Checked by AVG - www.avg.comVersion: 10.0.1411 / Virus Database: 2092/4032 - Release Date: 11/22/11No virus found in this message. Checked by AVG - www.avg.com Version: 10.0.1411 / Virus Database: 2092/4032 - Release Date: 11/22/11 Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 23, 2011 Report Share Posted November 23, 2011 All true Steve. Chalk it up to business risks, and yes, some fields like fire safety may have greater risks than others.Shell Bleiweiss Law Offices of Shell J. Bleiweiss Environmental and OSHA Law Chicago and Barrington, Illinois sbleiweiss@... http://www.shell-bleiweiss.com Sent: Wednesday, November 23, 2011 9:23 AMTo: iequality Subject: Re: Indemnification Clauses Shell, That definitely gives the insured consultant a better shot at a real defense. In my experience, the defense attorneys assigned by the ins. co. just want to bill hours to the case and settle when they've milked it for long enough. Even if the consultant is completely innocent of all allegations, s/he will never get to prove it in court. As Bob was saying about his fire safety professional friend who was repeatedly sued whenever there was a fire in one of his clients' buildings, between the deductibles and premium increases, you won't remain in business very long even if you've done nothing wrong. Even if you are sued and found to be an improper party to the suit because you had nothing to do with what went wrong, it takes a lot to get out of it (i.e., be dismissed without prejudice, and without costs or fees). Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
Guest guest Posted November 23, 2011 Report Share Posted November 23, 2011 Shell, Just got involved in another legal case (not in IL) where the remediation firm (controlled by a contractor for the HOA) did not follow the consultants recommendations and now the consultant has received a subpoena from the plaintiffs' (more than 1) personal injury lawyer for the typical reports, "air flow studies" "IICRC requirements""air testing data"etc. This is a lawyer who specializes in mold litigation. I found the subpoena interesting in that the lawyer appears to be implying that IICRC is one "standard of care." Clearly, it is an ANSI std.This is going to be an interesting defense. Establishing more of what a "reasonable" person should have done (especially if they are the expert.) They are claiming air flow caused contamination and no air testing was done. This is so ironic, given the recent discussion about air testing and connells opinions. I find it disappointing that our trade associations have not provided any advice or recommended wording regarding indemnity clauses. On the other hand, neither have they provide reasonable advice on PRV, air testing, data interpretation, and so on. You, of course, know how I have dealt with the lack of advice in these areas. My next book on the need for testing of HEPA filtered equipment will be out at the end of Dec. (157 pages.) This one is really going to stir the pot. Already have 2 governmental agencies looking at it. Your advice is always sound and reasonable.Bob Two things about that Steve. First, insurance companies often don’t have environmental lawyers like they do personal injury lawyers so they often will allow the insured to use the lawyer of their choice. Second, if the insurance company agrees to defend with a reservation of rights the insured always gets to choose its own counsel because of conflict of interest. So in many cases Bob would be free to hire his own lawyer who might be paid directly by the insurer. Shell BleiweissLaw Offices of Shell J. BleiweissEnvironmental and OSHA LawOffices in Chicago and Barrington, Illinois (direct) (general)sbleiweiss@...http://www.shell-bleiweiss.com From: iequality [mailto:iequality ] On Behalf Of Steve Temes Sent: Tuesday, November 22, 2011 2:11 PM To: iequality Subject: Re: RE: Indemnification Clauses Hire you to protect him from the attorneys who are working for his insurance company? Steve Temes Indemnification Clauses Do you sign indemnification clauses on contracts? Quote Link to comment Share on other sites More sharing options...
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