Claims against attorneys alleging malpractice in the handling of real estate matters have risen sharply in the past decade.¹ Real estate attorneys perform tasks that are highly specific, technically complex and very repetitive which can often lead to claims. This Risk Management Bulletin will look at five top claims faced by real estate practitioners and risk management suggestions on how to best manage the risk.

1. Inaccurate property description

Claim facts: Attorney agreed to be a scrivener to prepare a deed for a buyer and seller of real estate. Attorney drew up the sale, subdividing 28 of 72 acres owned by seller. Emails between the parties and negotiations all demonstrated the intent of parties to buy and sell 28 acres. Attorney used an old reference deed and inadvertently prepared a deed purporting to convey all 72 acres of property instead of 28. Buyer decided to try to take advantage of the obvious error forcing the seller to file an action to fix the error to the deed. Seller pursued a claim against the attorney.

Risk management: While not the main thrust of the claim, it is best for attorneys not to represent both parties in a real estate transaction. The conflict of interest was used by both buyer and seller tangentially to their advantage in the legal malpractice action. They each claimed that the attorney was looking out for the other party's interests. In this case, the main error was the attorney not being careful in the preparation of the deed due to its routine nature. Attention to detail is paramount in real estate matters. Attorneys need to double and triple check the essential details in preparing documents prior to execution and filing. If using assistants, attorneys also need to use competent assistants who also pay close attention to detail.

2. Cash back at closing

Claim facts: Attorney represented the buyer in a purchase of residential real estate. Purchase price was agreed upon, but the lender refused to fund a mortgage over a fixed percentage of the overall deal. Buyers and sellers agreed to "inflate" the purchase price and then "refund" the overage back to the buyer at closing. A secondary lender pursued a claim against buyer's attorney for fraud in that it had relied on in error what it thought were acceptable debt to asset ratios in the loan and the true market value of the home. The attorney faced both an ethical grievance and a legal malpractice claim. The attorney was not specifically involved in the negotiations, but was still held to be participating in the scheme.

Risk management: To avoid being brought into "cash back at closing" schemes, attorneys need to carefully review all closing documents and insist on full disclosure of all elements of a transaction. Attorneys need to watch for two sets of settlement statement numbers. If the settlement statement does not give the lender the true value of the home, the attorney should not go forward with the closing.

3. Vague lease language

Claim facts: Attorney represented the landlord leasing space to a buyer/lessee who wanted to retrofit the property to the buyer's business requirements. The landlord agreed to pay up to $10,000 for the retrofit of the property with the buyer responsible for any costs over $10,000. Emails during negotiations confirmed this fact. The landlord retained counsel to draft the lease agreement. The attorney used language that did not make it clear that the cap on the retrofit contribution from the landlord was $10,000. The buyer incurred over $75,000 in retrofit costs and sued the landlord. The landlord then sued his attorney.

Risk management: The attorney appeared to have used a form lease and spent little time amending the lease form indicating the retrofit cap expenses. The buyer appeared to notice this and took advantage of the vague language. Attorneys need to be careful to not overly rely on forms to practice law. Part of the responsibility of a lawyer (and what the client is paying the lawyer to do) is to protect a client's interests, even in the event of an unusual situation that requires more than using a standard form to make sure that the client's interests are served. Proofreading contract language is paramount.

4. Inadvertently creating attorney/client relationship

Claim facts: Attorney represented the seller in a residential real estate transaction. The buyer was pro se. At the closing, the buyer asked the seller's attorney several questions about the meaning of certain disclosures. Trying to be helpful and finalize the transaction, the attorney patiently answered all of the buyer's questions. One of the questions involved the meaning of an environmental disclosure about an old fuel tank buried on the property. The buyer claimed he relied upon the attorney's explanation to his detriment and stated he would not have gone through with the closing had he known how much removal of the tank would cost him.

Risk management: The attorney had only the best of intentions. However, the formation of the attorney/client relationship is a subjective one from the purported client's perspective. The attorney should have had the buyer execute a document indicating that he understands that the attorney represented the seller only and that he had the right to retain his own independent counsel. In addition, even with that document executed, the attorney should have stated to the buyer that while he would like to help him, he simply cannot answer his questions.

5. Attorney acting as escrow agent

Claim facts: Attorney represented the seller in a residential real estate transaction. At the closing, the buyer demanded that money be set aside for repairs noticed in the walk-through. Seller's attorney agreed to hold $9,000 in escrow to ensure the completion of the repairs. Attorney prepared an escrow agreement executed by seller and buyer that stated only that "$9,000 would be held in escrow to ensure that seller completed the following repairs." Seller completed repairs within days. Buyer refused to agree to release the funds held in escrow. Buyer claimed the repairs were not done properly. After a year, the seller's attorney released the funds to his clients. Buyer filed a disciplinary grievance and a claim against the attorney. While the attorney was able to return the full amount of money in escrow to his clients, the attorney had often allowed the balance in his client trust account to fall below $9,000.

Risk management: The attorney was ultimately vindicated on the release of the funds in that buyer had unreasonably withheld her consent. However, the attorney would have been wise to have drafted a clause in the escrow agreement indicating that the funds could be released if buyer unreasonably withheld consent. Also, it would have been better for the attorney to have had the title company hold the funds as he was formally charged with conversion of the $9,000 in funds. In mitigation, he had returned the funds, but the attorney was accused by his clients of waiting until he had replaced them before releasing the funds. If an attorney must hold funds in escrow from a real estate transaction, the attorney must treat those funds as if they belong to the client and never let the balance fall below the full amount of the amount held.

About the author
Gawain Charlton-Perrin, Esq., Director of Risk Management, Professional Liability, focuses on risk management for professional liability programs, including accountants, architects and engineers, lawyers, and miscellaneous professionals. He is also a nationally-recognized author and lecturer on professional liability, ethics and risk management.

1 Profile of Legal Malpractice Claims 2004-2007 and 2008-2011 ABA Standing Committee on Lawyers' Professional Liability.

Copyright 2014

April 2018 LC 2016-299

According to the American Bar Association (ABA), real estate-related claims are now the most frequently filed among legal malpractice claims. Attorneys are held to a high standard of service, and if their service falls below this standard and the client suffers as a result, that attorney can be found to have been negligent, and be sued for malpractice.

Below are the most frequent of claims filed by clients against their attorneys

1. Inaccurate property description — an error is made in the preparation of a deed
2. Cash back at closing fraud — buyer and seller collude to inflate purchase price in order to receive cash back at closing
3. Vague lease language — a form lease agreement wasn't properly amended to protect the client's interest.
4. Inadvertent attorney-client relationship — answering unrepresented party's questions at closing can inadvertently create an attorney-client relationship
5. Attorney acting as escrow agent — holding escrow funds and letting a balance fall below full amount and/or releasing funds without an agreement from both parties

April 2018

Many durable medical equipment (DME) companies are diversifying their business models, establishing new ways to generate revenue while seeking to improve their market position.

If you are leading a small- or mid-size DME company that's in a growth mode, it's wise to take a good look at your present insurance coverage. Never take for granted that your current policy will provide adequate protection against newly emerging business risks.

A smart place to start is with an independent insurance agent who understands the unique risks of DME businesses and who has the expertise and knowledge to recommend the right combination of general and/or professional liability coverage for your unique needs.

Most companies carry general liability coverage, which usually protects against claims due to equipment failure by ensuring every piece of equipment you sell or lease is covered along the supply route — in the warehouse, in transit, and onsite when it is in use.

But many DME companies often overlook professional liability coverage, because they don't think of their businesses as providing professional services. For insurance purposes though, even explaining the proper use of equipment to a customer is considered a professional service — and, therefore, represents a potential exposure.

Your agent can help you identify additional coverages you may need to protect your company. For example, "blanket additional insured" coverage will usually fulfill your contractual obligations with other contractors or facilities, entities that have leased or financed equipment, landlord requirements, etc. A "supplemental payments" endorsement normally provides coverage against legal and other expenses incurred for any alleged violations of state, federal, or HIPPA regulations or statutes. And, a "data breach" endorsement offers protection against claims that arise from the theft of personal or patient data, which has become a growing concern.

Of course, it's always best to reduce risk factors and prevent losses before they occur. With that in mind, be sure your agent recommends a carrier that offers risk management services.

The Hanover Insurance Group provides a comprehensive risk management program in which our professionals work with agents to assess their clients' business operations and recommend ways to reduce exposures. Then, we customize our policies to the clients' needs and risks, drawing on a full range of coverage solutions like Hanover Home Medical Equipment Advantage. If and when it is needed, The Hanover's claims operations is staffed by experienced field adjustors, appraisers, nurses, and special investigators.

May 2018

Serious safety events continue despite the best of intentions by highly-educated and well-trained professionals. In December 2017, a woman in California brought suit against Shasta Regional Medical Center, alleging forceps were left in her abdomen after surgery.¹ Preventable medical errors persist as the number three killer in the U.S. — third only to heart disease and cancer.² According to the World Health Organization there is a one in a million chance of a traveler being harmed while in an aircraft — yet a one in 300 chance of being harmed in healthcare.³

Everyone makes mistakes

Humans are fallible, errors will occur. However, processes and systems need to be designed to prevent or detect these prior to an error causing harm.⁴ But, systems too can fail. When systems fail they are known as latent errors. Active errors are those that occur at the sharp end of the process — a nurse, for example, giving the wrong medication, or surgical staff leaving an instrument behind. When we hear about a wrong medication being given to a patient, or a fall while walking with a caregiver, we quite frequently decide it is because someone did something wrong. Historically in healthcare when these types of events happen we have played the blame game. Immediate termination or suspension shows action and provides an easy answer. This is extremely short sighted and does nothing to prevent the event from reoccurring, which it does quite often. When that type of response does occur, it has repercussions beyond the event and sets the stage for even more errors and harm to occur.

Avoiding the blame game

Reporting of errors as well as near misses are very important functions in healthcare organizations. However, the ease of reporting as well as what happens with that information is also critical. Staff needs to know that they are free to report without fear of retribution. This is often easier said than done; but it is imperative that management stand firm on this concept and have zero tolerance for any type of retributive behavior from anyone. Additionally, follow-up and corrective actions implemented after the report need to occur in a timely fashion. In other words the loop needs to be closed.

Reliance on just one system of error reporting to alert an organization is not wise. In addition to having a robust occurrence reporting system, additional processes should be put in place. Consideration should be given to developing triggers or metrics to indicate a potential problem, and caregivers should be encouraged for feedback regarding patient safety — some of the best information about what is actually occurring in an organization comes from front line staff. Anonymous safety surveys can also be an important tool to highlight safety concerns before an incident occurs.

The Swiss cheese model

Systems analysis pioneered by British psychologist James Reason reveals that catastrophic safety failures are almost never caused by isolated errors committed by individuals. Instead, Reason states, they are a result of a multiple of smaller errors in an environment with serious system flaws.

The "Swiss cheese model", introduced by Reason illustrates the concept that the cheese is layers of protection, but with holes representing system flaws. When the holes line up, an error occurs.^5.

Why report:

• To identify early and resolve events with the potential to cause harm.
• To provide measures to evaluate care and reduce hazards that can lead to harm.
• To provide optimal patient care.

What to report:

• Any event that is not within normal operations or within the expected course of care for a patient. These events are not expected in the normal course of a patient's illness or course of treatment. This is meant to be broad in an effort to capture events that may cause harm and therefore prevent their occurrence/reoccurrence.
• Incidents which may involve patients, staff, family members, visitors or any other individual affiliated with the healthcare entity.

Who can report events?

• Anyone in the healthcare organization should be able to complete a report. To encourage the completion of occurrence reporting there should be a non-punitive culture of safety throughout the organization.

Examples of events to report:

• A fall or an event where the patient is found on the floor and that was not the intended placement.
• Events involving medications. Examples can include handing patient the wrong pill box, transporting patients to appointments without current medication lists, or not updating medication lists after physician or urgent care visits.
• Failure or delay in providing care. Missed shifts without coverage.
• Disruptive conduct from anyone such as a patient, family member, visitor or another employee.
• Failure to document events that result in or have potential to harm.
• Equipment failure or injury that occurs while equipment is in use. Can include collapsing walker, Hoyer lift that breaks, or bed that malfunctions.
• Damage or alleged theft of property.
• Notification of police or fire.
• Patient or family threatens to sue.
• Unexpected death or suicide.
• Near misses — events that did not happen because they were caught prior to occurring.
• The use of a "nanny/granny cam."
• Any accusation made by a patient or family member.

How to report:

• Write only the facts. This should be done clearly, without providing opinions or conclusions.
• The report of the occurrence should occur as close to the actual event or within 24 hours of event.
• The medical record should contain information on the facts surrounding the event. It should not include a statement regarding the completion of an occurrence report.

Should the unexpected occur, it is crucial to have the right insurance protection. The Hanover offers tailored coverages that address the unique risks faced by healthcare providers and facilities. In addition our risk solutions team provide an array of tools and resources to help you minimize risk and create a culture of safety.

References

1. Arthur, Damon. Record Searchlight Part of the USA Today Network. Susanville woman says forceps left in her after surgery at Shasta Regional Medical Center. Published Dec. 27, 2017
2. McCann E. Deaths by Medical Mistakes Hit Records. Healthcare IT News.  Available at: http://www.healthcareitnews.com/news/deaths-by-medical-mistakes-hit-records. July 18, 2014. Accessed February 24, 2017.
3. World Health Organization, 10 Facts on Patient Safety. Fact Files. Accessed February 24, 2017.
4. http://patientsafetyed.duhs.duke.edu/module_e/reduce_errors.html Accessed 1/8/2018
5. PSNet Patient Safety Network. Reporting Patient Safety Events. U.S. Department of Health and Human Services AHRQ. June 2017.

This material is provided for informational purposes only and does not provide any coverage or guarantee loss prevention. The examples in this material are provided as hypothetical and for illustration purposes only. The Hanover Insurance Company and its affiliates and subsidiaries (“The Hanover”) specifically disclaim any warranty or representation that acceptance of any recommendations contained herein will make any premises, or operation safe or in compliance with any law or regulation.  By providing this information to you, The Hanover does not assume (and specifically disclaims) any duty, undertaking or responsibility to you.  The decision to accept or implement any recommendation(s) or advice contained in this material must be made by you.

LC 2018-004

Home medical equipment (HME) providers are diversifying their products and services to establish new ways to generate revenue, meet the needs of clients, and improve their overall market position. With the ongoing evolution of your business, new, unexpected, and complex risks can follow. That's why it's important to consult with an independent agent who understands the unique risks your business faces and has the industry expertise to recommend the right insurance solution to help ensure you have the protection you need.

So, what are the key insurance coverages you should be aware of to help protect your business?

Professional liability

Many HME companies often overlook professional liability coverage, because they don't think of their businesses as providing professional services. However, even explaining the proper use of equipment to a customer is considered a professional service — and presents risk. Professional liability coverage protects your business from errors related to the sale or rental of medical products and medical gas, including demonstrating, furnishing, installing, adjusting, or providing instruction regarding medical or surgical equipment or appliances.

Data breach

Today the risks from cyber, data and privacy are a growing concern and can be difficult to navigate. Data breach and privacy coverage is fairly inexpensive, but can provide valuable protection, including covering the costs of credit monitoring, forensic investigations, regulatory fines and penalties for your facility arising from the release of personal or patient data.

Client property

Your employees work in many of your clients' homes to setup, adjust, or provide instruction for use of equipment. With that comes the risk of lost, stolen, or damaged client money, securities, or property and could give rise to a claim. This coverage is oftentimes not provided on a standard policy, but upon request can usually be added to protect you from this risk.

Products liability

As a home medical equipment provider, you face liability related to products you sell, install or service. You can face claims arising from defective products, no matter where in the distribution channel — manufacturers, wholesalers, or retailers — so it's important to have products liability coverage in place to protect your business if faced with such a claim.

Hanover Healthcare offers one-stop shopping with tailored coverages to help address the risks facing healthcare companies in the following sectors: Allied health centers, eldercare, home healthcare, home medical equipment, orthotics and prosthetics and select physicians and healthcare professionals.

April 2018

Business professionals enter into agreements or transactions with other individuals and businesses nearly every day. The transaction may include an agreement to purchase supplies and raw materials from another party. Agreements may also include services or work to be performed by the professional for another party or work to be performed by another party for the professional. These agreements or transactions are also referred to as contracts. Contracts typically include what work or services will be provided, how much the work or services will cost, and who will pay and when.

Contracts can be made orally (verbally) or in writing. Both oral and written contracts can be legally binding. However, if a misunderstanding arises between two parties concerning an oral contract, the dispute becomes a “he said, she said” situation that is far harder to prove in court than a written contract. At best, memories can fade over time and create legitimate disputes between two well-meaning parties. At worst, parties to an oral contract have more opportunity to be disingenuous. Therefore, a well-drafted written contract is a good risk management technique to help avoid misunderstandings and disputes that can lead to professional liability claims and other legal disputes and better protect the interests of a business professional.

Elements of a well-drafted written contract for professionals

To help professionals in drafting written contracts, the following are some of the elements that should be addressed and included in a well-drafted written contract: 

• Format of the contract. There is no specific format required for a written contract. Essentially, to be legally binding, most contracts should contain an offer, an acceptance of that offer and the consideration for that offer, which is typically money. A contract cannot offend public policy, such as involving an illegal act or a fraudulent transaction. The contract must be entered into by parties that are legal adults, and those adults should not be under the influence of alcohol or illegal drugs or otherwise under duress.
• Parties, fees and timing of services. The written contract should identify all parties to the transaction, whether they are individual or corporate. The contract should use the full legal name of the business or individual. The fees should be explained in detail, and the contract should outline when payment of fees is required. In addition, it is important to state when the services or work need to be started and completed.
• Scope of the work to be performed. The scope of work section of the contract is critical to spell out exactly what the terms and conditions are in the business transaction. The scope of work section should outline what work or services are to be performed or what materials or products need to be provided. The contract should identify each party’s responsibilities, including what one party is promising to deliver and what the other party agrees to pay or do in exchange. The contract should also indicate any limitations of the services or work or quality of product.
• How to identify when the contract is complete and what occurs in the event of a breach of contract. The contract should identify how the contract will be terminated or how long the contract will be in place. If it is a one-time exchange of goods or services, the contract should state that the contract will be terminated upon completion of the transaction. If the agreement is for continuing services, the contract should indicate how and when the parties can terminate the agreement. In the event of a breach of contract or a failure to perform by one or more of the parties, the contract should outline how a dispute will be handled, including whether there will be mandatory mediation or arbitration, which is often less expensive than a dispute in court. The contract could designate what state or jurisdiction any dispute should be adjudicated in and whether attorneys’ fees and/or court costs should be awarded. The contract could also state whether some form of liquidated damages should be awarded.
• Signatures and execution of the contract. All parties to the agreement should sign or execute the contract. Professionals should ensure that the person executing the contract has the legal authority to do so, such as an authorized officer signing for a corporation. All parties should keep copies of the contract for easy reference in the event of a dispute.

Additional considerations

There are numerous additional considerations for professionals in drafting a written contract that may not apply to every situation. First, it is advisable that professionals consult with an attorney in drafting a contract. Attorneys can often help draft a “form” contract for a business that can be used for the type of work the business conducts. These form contracts then can be utilized on a day-to-day basis to help the business avoid reinventing the wheel for each transaction. In addition, consulting with an attorney can ensure that the written contract will be enforceable in the event of a breach.

Second, the parties may wish to keep certain information confidential especially if the transaction involves the exchange of trade secrets or other proprietary information. Third, the parties may wish to provide for any warranties and/or indemnification by one party to the other party to the transaction. Fourth, the contract may address if one party or all parties need to purchase insurance or a bond to protect the other parties to the transaction. Last, if the contract uses key terms, it may be helpful to include a definitions section and explain what each term means to the understanding of the parties.

Conclusion

Professionals can minimize their risks by reducing all transactions and agreements to written contracts. By utilizing well-drafted written contracts, businesses and professionals can manage the risks and avoid misunderstandings and confusion that can lead to costly professional liability claims and lawsuits.

LC NOV 2018-535 (11/2018)

According to the U.S. Bureau of Labor Statistics, almost half of all jobs in the country involve some degree of outdoor work. When winter blows in, it becomes even more critical to take steps to keep those employees safe.

Understanding cold stress

The negative effects of prolonged exposure to cold can take on several forms. These conditions — sometimes collectively referred to as “cold stress” — can be exacerbated for workers who perform physical tasks outdoors, as the body has to work harder to stay warm.

Here’s what to watch for¹. If you have a worker exhibiting any of these symptoms, get them out of the cold immediately.

• Hypothermia – This occurs when body temperature drops below 95 degrees. One of the early signs of hypothermia is shivering, so it’s important to note when employees begin to show this symptom. Encourage outdoor workers to keep an eye on one another, as hypothermia is easier to reverse when detected early. These workers should be taken indoors and giving a hot meal or drink to increase body temperature. In more severe cases, a doctor should be called.
• Frostbite – Tell-tale signs include redness, pain, numbness, a gray-yellow color to the skin, or an unusually “waxy” feel. In the event of frostbite, gently warm the affected area with warm (and not hot) water, until its appearance becomes closer to normal.²
• Trench foot or “immersion foot” – This can take the form of redness, pain, tingling, cramps, blisters and numbness due the prolonged wetness, especially when combined with the cold. Remove any wet clothing, and, as with frostbite, treat the affected areas with warm water. ³

Don’t brrr-ave the wind

One of the biggest hazards of winter weather is the wind, and if the temperature is low enough, even a slight breeze can make prolonged exposure dangerous. The Occupational Safety and Health Administration (OSHA) provides a printable chart outlining recommended scheduling for outdoor workers, including warm-up times, shift lengths and frequency of breaks.

Dress the part

Make sure non-uniformed workers are making responsible clothing choices when they head out in the cold. These include:

• Avoiding cotton clothing, which doesn’t retain heat as well as some other fabrics. Thermal wear, wool and “moisture-wicking” material are effective alternatives.
• Wearing loose clothing, in layers, which leads to increased insulation and circulation. Plus, layers can easily be removed when a worker gets too warm.
• Removing wet clothing immediately. One statistic shows that the body loses heat five times faster through wet clothing.⁴

Don’t slip up

Exposure isn’t the only hazard presented by winter conditions. In fact, slips, trips and falls are among the most common workers’ compensation claims — in the winter, and all year round — comprising roughly 25% of such claims.⁵ Additionally, more than 80% of these claims result from falls that don’t involve heights.⁶ There are many preventative measures — some common sense, some lesser known — that can help you avoid these sorts of claims.

Don’t get left out in the cold

Having the right protection applies not just to clothing, but also to insurance. The Hanover offers expertise and resources that can help keep your outdoor staff safe in the winter months. Also, talk to your independent insurance agent to see how The Hanover’s workers' compensation coverage can form part of a total insurance solution for your business.

Sources:
1. OSHA
2. Mayo Clinic
3. Center for Disease Control
4. Princeton University
5. OSHA Slips, Trips & Falls: Identification & Prevention
6. Bureau of Labor Statistics

This material is provided for informational purposes only and does not provide any coverage or guarantee loss prevention. The examples in this material are provided as hypothetical and for illustration purposes only. The Hanover Insurance Company and its affiliates and subsidiaries (“The Hanover”) specifically disclaim any warranty or representation that acceptance of any recommendations contained herein will make any premises, or operation safe or in compliance with any law or regulation. By providing this information to you.The Hanover does not assume (and specifically disclaims) any duty, undertaking or responsibility to you. The decision to accept or implement any recommendation(s) or advice contained in this material must be made by you.

LC Jan 2019-01

Mistakes are part of life for everyone including land surveyors. Surveyors are so familiar with mistakes that they call them "blunders." In a profession where accuracy and precision are important, even the smallest mistake can be costly. Dealing with a surveying problem is never a good thing. Dealing with a surveying problem without professional liability insurance is always a bad thing. Here are reasons why contracting with insured surveyors makes good business sense:

1. Mistakes can be costly to fix

Alignment and elevation errors often involve the tearing out and rebuild of in-place construction. Often the most feasible, though expensive, solution requires purchasing additional land from an adjacent property owner.

2. Time is money

When a surveyor makes a mistake there is often little dispute over liability. Insured surveyors look to their professional liability insurer to provide the funds to fix the problem. Uninsured surveyors may simply not have the financial stability to weather the storm putting critical real estate and construction project timelines in jeopardy.

3. Addressing risk is good business

Successful businesses understand the important role that insurance plays in managing risk. This includes the vicarious liability they assume when they contract for professional services. It doesn't make sense to assume the liability of an uninsured surveyor.

4. Insured surveyors understand

Surveyors who carry professional liability insurance understand mistakes are inherent in any business endeavor. Insured surveyors understand that professional liability insurance not only protects them but also their clients when the things go wrong.

5. Fees are comparable

While the fees charged by insured surveyors may be more, they certainly aren't so much higher that they should be the single determining factor in the selection process. Is saving a few dollars worth the risk?

Surveyors that carry professional liability insurance are good for everyone. When it comes to managing risk and minimizing liability, it's always good to know that you are working with someone that will be there if things go sideways. Mistakes happen. Insured surveyors understand they are not immune to making mistakes. 

For the potential risks and exposures on your jobsite, you should be aware that it is your responsibility to designate a competent person to oversee the safety of your work crews.

What is a “competent person”?

Some Occupational Safety and Health Administration (OSHA) standards have specific requirements for a competent person, including: excavation work, working at heights, when exposed to silica, daily crane inspections and demolition work. The competent person must be familiar with the hazards of the work and the proper controls to use for employee protection. For example, if the jobsite includes workers being exposed to heights, a competent person must provide training to workers on fall hazards and the equipment or other controls that will be used to protect them from falls. While there is no set amount of training time or certification required, it is imperative that a competent person has adequate training and knowledge about fall hazards and equipment before providing training to others. The determination of whether an employee is capable of being a competent person rests completely on their employer.

Be sure the designated competent person:

• Understands the hazards of the work and the applicable OSHA standards
• Has knowledge of the selection, use and installation of controls to use to protect workers from the hazards they face
• Is given the authority to correct hazards and stop work, if needed, to protect employees
• Can provide training to other employees and answer frequently asked safety questions
• Is periodically retrained to help maintain the highest and most current safety knowledge

Your Hanover resources

Hanover policyholder benefits include not only our comprehensive coverage, but also access to risk solutions partner services, including:

• Equipment theft prevention and recovery products
• Background check services
• Disaster and recovery planning services
• Industry-specific training resources
• Alarm system testing and maintenance services
• Automatic sprinkler testing and maintenance services

Visit our Hanover construction risk solutions page to learn more about our risk solutions partners.

This material is provided for informational purposes only and does not provide any coverage or guarantee loss prevention. The examples in this material are provided as hypothetical and for illustration purposes only. The Hanover Insurance Company and its affiliates and subsidiaries (“The Hanover”) specifically disclaim any warranty or representation that acceptance of any recommendations contained herein will make any premises, or operation safe or in compliance with any law or regulation. By providing this information to you, The Hanover does not assume (and specifically disclaims) any duty, undertaking or responsibility to you. The decision to accept or implement any recommendation(s) or advice contained in this material must be made by you.

LC 2017-409

Jobsite safety is about more than protecting workers. It's about protecting the public, and your business, too. Risk management efforts must be in place to address potential exposures and ensure work areas will not create uncontrolled hazards that may result in injuries to others. Make sure your business is protected with insurance coverage including general liability, workers’ compensation, commercial auto, commercial umbrella and more.

On-site guidelines

• All contractors should be required to maintain clean work areas by frequently removing debris and materials that could result in falling objects or slips/trips by others.
• When work is performed that could result in falling objects or tools, lower levels should be barricaded to prevent other workers from walking below.
• When work requires removal of protective controls such as guardrails or floor cover, the work area should be barricaded to keep other contractors out.
• When trucks are used for material delivery that require backing up, a spotter should be used when such operations are in congested work areas.
• Swing radius areas near cranes and other equipment should be barricaded to prevent workers from being struck by equipment.
• A site traffic control plan should be developed to allow for the safe flow of construction vehicles through the project.
• When work is near public walking areas, protection from building materials and tools falling from heights needs to be considered, including sidewalk canopies or rerouting sidewalk access.
• Nightly project exterior inspections should be conducted to ensure no slip/trip hazards are present on public walking areas.
• Proper signs/cones and flaggers should be available when offloading materials requires partial use of an active street near the project.

Off-site guidelines

• Work performed on streets and roads must follow a traffic control program that is designed per the manual of uniform traffic control devices (MUTCD).
• Only properly trained flaggers should be used to control traffic through work zones when required by MUTCD standards.
• Sidewalks near projects should be rerouted or closed to prevent the public from walking near equipment and hazardous work areas.
• When digging:
  • Always use the 811 National One-Call Hotline or contact your state diggers number before any work disturbing the ground
  • Train workers in emergency procedures should an underground utility be struck
  • Assist utility locaters by “white lining” the dig area
  • Always verify exact utility locations by potholing or daylighting
  • Always look around the location for evidence of utilities that may not have been marked
  • Always take photo/video of location marks/flags for documentation purposes before beginning your work
  • Always instruct workers on emergency procedures for responding to a utility strike
  • Always review the one-call ticket for “work begin date” and know for how long the ticket is valid

Our underwriting, claims and risk management professionals have worked with contractors for many years. We offer comprehensive solutions that are cost-effective and convenient. The Hanover Risk Solutions website has additional information that you can review or use for worker training.

This material is provided for informational purposes only and does not provide any coverage or guarantee loss prevention. The examples in this material are provided as hypothetical and for illustration purposes only. The Hanover Insurance Company and its affiliates and subsidiaries (“The Hanover”) specifically disclaim any warranty or representation that acceptance of any recommendations contained herein will make any premises, or operation safe or in compliance with any law or regulation. By providing this information to you, The Hanover does not assume (and specifically disclaims) any duty, undertaking or responsibility to you. The decision to accept or implement any recommendation(s) or advice contained in this material must be made by you.

LC 2017-423
May 2018