Contributed by: Jennifer Costanzo, Risk Manager - Promark Agency
Here's the scenario; you are on site with your rented lift for a bridge inspection. Mary Person, a contractor on the project, asks if she can use your lift for her own work. On the last project you worked together, Marcus Otherguy rented a lift and you and Mary both used it for your own purposes. You’ve been on several project sites where this is the case. So, this should be no big deal, right?
Unfortunately, the truth is, it puts you in the line of fire for a fall from height claim. Under the scaffolding law, labor law 240, you are exempted from liability if you do not direct or control the work for activities other than planning and design. Providing a lift for a contractor at the very least clouds that distinction and your insurance programs are not designed for those exposures. Here’s an extract from 240.1 and a replica exists in 241.9 for construction, excavation and demo work:
No liability pursuant to this subdivision for the failure to provide protection to a person so employed shall be imposed on professional engineers as provided for in article one hundred forty-five of the education law, architects as provided for in article one hundred forty-seven of such law or landscape architects as provided for in article one hundred forty-eight of such law who do not direct or control the work for activities other than planning and design. (http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:)
A contractor allowing other contractors to use the lift may be increasing their odds of a claim, certainly, but you are redefining your role AND increasing the odds of a potentially uninsured claim against your firm. Professional liability policies are designed to respond to allegations of negligent performance of professional services (providing equipment isn’t really a fit). Standard business owners policies for design firms exclude coverage for professional services and supervision, inspection, quality control and job site safety as excluded services.
At the very least, if you become the target in a claim with a contractor injury, you may be creating a narrative for your firm that is unseemly and unacceptable to carriers. In short, you may jeopardize your ability to be insured in the standard market and at reasonable terms.
Now, of course, knowing all this doesn’t mean you can’t do it. It means that you’ll need to assess whether you are comfortable with the potential for loss and make a business decision about the exposure.
I get it, no one wants to be the one to not share, but for an architect or engineer, the consequences can be particularly frightful. And if you feel like you are regularly engaging in activities that put you in the danger zone, call us to discuss what options we may have to help you cover that exposure.