It’s that time of year again. At malls and department stores across the country, children are lining up hoping to get a picture with the big man in the red suit, and maybe get him to lend a conspiratorial ear about the most exciting Frozen-themed toy of the moment. But just because Jolly Old Saint Nick has made his list and checked it twice, it does not mean that he’s ready for the holidays. He should quadruple check to make sure that he is covered in the event a wide-eyed child knocks her noggin on an ornament or trips over a stray elf shoe. Santa should look at picking up some entertainers liability coverage. Malls and other locations that host Kris Kringle on his world tour carry commercial general liability policies that protect the business and its employees from liability for such incidents. These CGL policies typically including a provision excluding coverage for temporary workers, which one such policy defines as those workers “furnished . . . to meet seasonal or short-term workload conditions.” In the event one of his adoring fans claims injury, this CGL exclusion can often leave Father Christmas high and dry, on the roof without a sled, or up candy cane creek without a reindeer. As a result, many malls and other private parties hiring Pere Noel for seasonal festivities now require him to have proof of insurance. An entertainers liability policy generally covers Santa’s customers and anyone visiting, but does not cover for injury to Santa himself, Mrs. Claus, or any elf helpers. The coverage limits are typically around $1 million per occurrence or incident, and $2 million general aggregate or total coverage. Santa can find this type of coverage by speaking with a local insurance broker, but he should carefully read each policy and
The 3PL world is expanding seemingly exponentially as shippers or other BCOs outsource their logistics management work. Essentially this competition among freight brokers for customers and all the varieties of logistics intermediaries is shifting the risk of loss onto the intermediary. I may have said this previously, but some people will sign just about anything to get some freight to broker or manage. Intermediaries agree to take on risks that are either uninsurable, not covered by the underlying carrier or not covered by the underlying carrier’s insurance policy. The exposure varies greatly. If the cargo moves are strictly domestic, there’s one type of exposure. If it had an international leg (air and water are slightly varied) on a through Bill, contracting with the shipper (BCO) to take a greater share or type of risk WILL result in uncovered or minimally covered cargo claims, breach of agreement, and E&O mistakes for which the Intermediary will answer for. Shippers and other BCOs are pushing out onerous contract terms to Intermediaries. You should take a moment before booking that freight to understand the exposures and take precautions. You may not even see the exposure then and it could hurt. These contracts will generally trump any and all language on the BOL, any tariffs of motor carriers, your load sheets. The Intermediary ends up with the loss because it can’t be passed on to the underlying carrier – rail or motor. Carmack Amendment limitations to liability for damage or loss to cargo can be totally excluded in a contract. Contract damages can be much more than what the underlying carrier agrees with you to accept. Some of the uncovered and minimally covered losses that an Intermediary may take on, and which cannot – or are not – easily transferred to the motor carrier are:
Register to Attend the PLRB Claims Conference in San Antonio Texas on April 17th- April 20th to hear Mitchell J. Resnick present on Geotechnical and Geologic claims. View the presentation HERE.
Very often we in the U.S. presume that an individual performing work for a business is an employee of that business. This is true today, even with significant changes occurring around us. It seems that each recession brings slower employment recoveries. Many of us are now, more accurately, independent contractors rather than employees. That’s true in virtually all industries and among all our business clients. This is especially so when the terms of that individual’s work are closely regulated, as in interstate trucking.  In fact, because the motor transport industry is a “highly regulated business,” the U.S. Supreme Court exempts law enforcement officers, generally, from the search warrant requirement under the Fourth Amendment.  A warrantless stop and search of a truck and driver’s possessions is, to a degree, Constitutional, with significant exceptions. The misclassification business is quite active. Courts and legislators across the country have created a patchwork of rules and tests to determine if a worker is an employee; tests that may subject the employer to withholding tax, penalties and added insurance costs. The flip side of direct employment - independent contracting - is determined by whether the worker, assigned a task for a fee, performs that task with as little supervision as needed for regulatory compliance. Each state has its own test. Unfortunately, the status of a worker is not visibly obvious to all who review our clients’ industries, whether by choice or force of habit that continues since the 1930s. States, particularly California, have split with other states and Circuits regarding how much control is allowable before the worker is to be considered an employee. The U.S. Supreme Court may soon be asked to address a 9th Circuit holding that state laws on meal time and work rules do not conflict with the FAAAA, the 1994 act
Every company has to survive in the wild and woolly world of the marketplace. Just about every business has a transportation relationship that is ultimately (or should be) put into a formal contract. Whether you’re a shipper, freight broker, transport intermediary, motor carrier, third-party logistics provider, freight forwarder or some other variation, here’s a list of terms for that contract that you simply should not forget to include. The clauses are not always titled as specifically as these, but inclusion of the terms is absolutely crucial. Billing and Payment.   Contract language must discuss the issues of when payment is due, penalties for late payment, including interests, costs of collections and suit and attorney fees. Certifications, Warranties and Guarantees.   You should never promise the total accuracy of anything, e.g., pickup or on-time delivery, 100% satisfaction, or complete compliance with all possible regulatory controls. If faced with such high expectations, you can substitute contract language that reduces that promise to a reasonable expectation. Consequential Damages.   You should be sure to include a waiver of consequential damages. These include indirect loss, such as loss of profits, or shut down of manufacturing process, which are only remotely connected to the services you’re rendering. Safety.   Your contract should include a clause on safety that makes it clear the responsibility for job safety remains with the person or entity performing the specific task. For example, if you are a motor carrier and your driver slips on oil on the shipper’s dock while counting the piece loading, you should not accept responsibility for an unsafe work condition over which you have zero control. Limitation of Liability.   Look to include a limitation of liability clause, which is an agreement between you and your customer that establishes a maximum amount of liability exposure you will be responsible for in