Risk Management for Special Events

One of the more important risk management concerns for my community association clients is the management of potential legal liability risks arising from special events.  Whether an association hosts a special event itself or permits its members to use its facilities to host their own special events, there are a number of risk exposures to be considered and addressed in order to protect the event participants and the association.  Stephanie Dufour’s blog post, Safety Considerations for Your “SPECIAL” Day,  is an excellent overview of the risk management issues to be considered.

In addition to Stephanie’s excellent post, I offer the following, addressed to the risk management needs of the venue owner (typically, in my case, a community association):

• In her 2nd point, Stephanie points out important considerations for the event sponsor regarding location selection.  For the property owner offering its facilities for use (a community association which permits use of its clubhouse for private parties, for example), a similar analysis is important.  The type of use and number of participants for which your facility is safely suited should be carefully considered, and described in your lease, permit or use agreement.  It should go without saying (but I’ll say it anyway ’cause that’s what we lawyer types so often do), that you should in fact have a written agreement for a member’s (or other third party’s) use of your facilities, and that agreement should cover the scope of permitted use, indemnity obligations, insurance requirements and liability waivers.  
• In her 3rd point, regarding food service, Stephanie notes the importance of proper food preparation and handling.  From the property owner’s perspective, if food will be sold by vendors at an event held at your facilities (an Octoberfest, for example), your written agreement for that event should include appropriate requirements pertaining to any government-required licensing or food handling procedures.
• Stephanie’s 4th point addresses risk management issues for events where alcohol will be served.  Whether the facility owner is hosting such an event itself or is permitting another party to host the event, Stephanie’s suggestions regarding procedures to institute to ensure the responsible service of alcohol are important.  In addition, liquor liability insurance coverage should be obtained (for a community association, this would typically be done via appropriate endorsement to the association’s commercial general liability – CGL – insurance policy) and, if alcohol is to be served by a third party host, by requiring appropriate liquor liability insurance coverage to be provided by the host via the property use agreement.  The potential need for a temporary liquor license should also be considered.  For example, a wine tasting event may require a one day liquor license.  Information regarding liquor licenses for special events in California can be found here (scroll to the 3rd page). 
• I cannot endorse strongly enough Stephanie’s comments concerning vendors/collaborative events (Stephanie’s 8th point).  I would add only one thing to Stephanie’s comments – if there will be vendors (booths, entertainment, food, etc.) at your special event, which party will assume liability risks and provide insurance coverage should not only be discussed, but must be carefully memorialized in writing in a binding legal document. 
• Regarding waivers (Stephanie’s 9th point), keep in mind that the law regarding enforceable terms, scope and format differs from jurisdiction to jurisdiction.  In addition, there are specific legal issues pertaining to waiver and release agreements pertaining to minors.  Do not rely on a form document found on the internet.  Seek the assistance of an attorney licensed in your jurisdiction with experience addressing these issues.
• Similarly, laws vary from state to state regarding the meaning, scope and enforceability of indemnity agreements.  You need an indemnification clause in any use agreement granting a third party permission to use your property; again, seek the assistance of an attorney licensed in your jurisdiction with experience addressing these issues to prepare your agreement, to ensure that indemnity obligations are addressed in a manner consistent with the law in your jurisdiction.
• Further to Stephanie’s 10th point, regarding photo/media releases, another issue to consider is how to protect your organization against potential breach/violation of copyright, license and/or publicity rights and similar issues.  One scenario in which a community association may be vulnerable to such claims is when the association hosts outdoor concerts.  Your contracts with live entertainment vendors must be written in such a way as to protect the association against such claims, particularly since such claims may not be covered by the association’s own insurance policies.  It is also important to determine whether there is a sound ordinance controlling the allowable decibel levels of the music, and be sure to address such rules in the vendor’s contract as well.  In my experience, such issues are rarely addressed in the entertainment vendor’s own contract (and when they are the issues are not addressed in a way which protects the association), so I would further add the recommendation that you have the association’s legal counsel review and negotiate the terms of that vendor’s contract as necessary.

The Never Pay Insurance Policy

Earlier this year, attorney John L. Watkins posted an entertaining and very informative series of blog posts about what a business should do if its insurer denies coverage for a claim.  Now, I know what you’re thinking.  “An attorney, huh?  Sure, that means an overly informative series of blog posts.  But entertaining?  Oh, come on, now!”  But really, as dry (and scary) as the topic may be, Mr. Watkins made it entertaining.  I mean, he even quoted Monty Python, for goodness sake.  The only thing I can figure is that his ability to make this topic entertaining must have something to do with the fact that he hails from Atlanta, Georgia.  Interestingly, he and I share similar professional backgrounds and, though located on opposite sides of the country, are seeing the same trends when it comes to insurers’ denial of insurance claims (both for an insured’s own property damage claims and, more scary, when it comes to defending and indemnifying insureds against liability insurance claims). 

At any rate, the posts, here, here, here, and here, are very good.  I couldn’t have said it better myself good.  So, rather than saying it myself, I’m pointing you in their direction.

In addition to the important points Mr. Watkins raises:

1.  Treat your insurance policies as if they were valuable financial documents, because they are.  Keep every piece of paper the insurance company sends you, in chronological order.  You will likely not receive a new copy of the entire insurance policy every year, so keep all of the documents you receive the first year the policy is in place (which will be lengthy, and should include declarations pages, coverage parts – sometimes in the form of a booklet – and endorsements) and then all of the documents you receive after that.  Keep them forever. 

2.  Read your insurance policies! Don’t wait until you have a claim (or a claim has been made against you). Insurance policies are notoriously difficult to understand, particularly when it comes to figuring out how the parts of the policy (the declarations, coverage parts and endorsements) work together. Get your coverage questions answered when you first receive a policy, not when you need it to respond to a claim, because then it’s too late to change your coverage if that’s necessary.

3.  Report claims or events which may give rise to a claim promptly.  Don’t do it by calling or e-mailing your insurance broker.  It’s okay to do that, too (certainly you will want to keep your broker “in the loop”), but your insurance policy or policies will have a section that tells you exactly how and where you are to send notices.  Do it that way.  Exactly the way the policy says you should. 

With respect to a claim against you by a third party (as opposed to a claim you may make to your insurer for damage to your own business property), provide your insurance policies to an attorney with knowledge regarding insurance coverage, and have the attorney decide which insurers to tender a claim to, and how.  Don’t assume which insurers should be notified (commercial general liability or professional liability insurer, current insurers or past insurers too), or whether or not the claim should also be tendered to your umbrella carrier.   

While we’re on this topic, the question of what is (or is not) a potentially covered third party claim is not always clear.  Certainly, if you are served with a lawsuit it should be tendered to the appropriate insurer(s) immediately.  But what if you receive notice of an administrative law hearing, or you receive a demand letter that threatens litigation in the future?  Again, this is when you need to consult with an attorney, since failure to notify an insurer when you should could deprive you of any coverage you would otherwise have had.   

4.  If you ask an insurer to defend you against a third party’s claim, and receive a reservation of rights letter (a letter from or on behalf of the insurer telling you that you will be provided a defense but the insurer reserves the right to contest coverage), take it very seriously.  If you haven’t already consulted an attorney by now, this is absolutely the time when you should.  A number of issues arise from an insurer’s reservation of rights letter, such as (depending upon your jurisdiction), your potential right to independent counsel (instead of, or in addition to, the insurer’s choice of defense counsel) at the insurer’s expense, and/or the insurer’s potential right to allocate the cost of some (or, given the outcome of the litigation, potentially all) of the defense costs incurred by the insurer to you (yes, that’s right, you could end up having to reimburse your insurer).  Statutory and case law applicable to these issues differs from jurisdiction to jurisdiction, so you will need the advice of an attorney who knows the law regarding insurance coverage and claims handling in your State.    

5.  Rather than (or in addition to) a reservation of rights letter, your insurer may ask you to sign a non-waiver agreement.  This document should be taken just as seriously as a reservation of rights letter.  More seriously, even.  Here’s why.  Generally, an insurer has the burden of identifying all potential grounds for denying coverage.  Failure to do so in its reservation of rights letter to the insured may be held to be a waiver of any grounds not identified.  Among other things, a non-waiver agreement typically is written in such a way as to avoid such a waiver.  Do not sign it until you have consulted with an attorney who is knowledgable regarding insurance coverage.

Small Business Answers About the Americans With Disabilities Act

Inc. Magazine recently posted a good article, How to Comply With the Americans With Disabilities Act, addressed specifically to small businesses.  Given the very recent publication of revised ADA regulations (which you can find here), the article is timely.  It also contains links to other resources, including the Department of Justice’s “ADA Business Connection” (where, among many other resources, you will find a 13 minute video entitled “Ten Small Business Mistakes”) and the “ADA Guide for Small Businesses“. 

I won’t repeat the information given in the article, just leave you with the following “teasers” to encourage you to read the article yourself and download the resources it links to:

Teaser #1:  No matter how small your business may be, the ADA may still apply to you in some way.

Teaser #2:  The ADA applies both to employment relationships and to customer relationships (including, but not limited to, the physical space your business occupies).

If you are starting a new business it would be well worth your while to familiarize yourself with the requirements of the ADA; even seasoned business owners will likely find something in the article or the resource links that they didn’t know or have forgotten, however.  Forewarned is forearmed!

New Statutes California Business Owners Should Know About

Earlier this week, I wrote about new statutes California community association managers and board members should know about.  So, I thought I should also talk about new statutes California business owners should know about.  Surely our legislators put great effort into passing lots of legislation to materially improve the business climate in our economically hard hit state. 

Well, no, not really.  I suppose there is a silver lining, though.  At least the folks in Sacramento didn’t go out of their way to make the business climate even worse.

Better luck next year, I suppose.

In the meantime, what to blog about?  I’ve got it! 

Considering the impending Super Bowl game, you may be happy to hear that Assembly Bill 58 amended Penal Code Section 337a, and added Penal Code Section 336.9, to eliminate misdemeanor and/or felony criminal penalties for friendly sports betting pools.  That Super Bowl pool at work?  Now it is only punishable by a fine.  If the stakes are small enough.  Or it doesn’t fall under some other exception.  So okay, these new statutes aren’t perfect (not even for California).  And I should warn you to read the full text of the law yourself, if you are considering doing anything which it may pertain to, because it’s full of all sorts of complexities (and I know less about criminal law than most criminals do).  (You can find it at:  http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0051-0100/ab_58_bill_20090806_chaptered.pdf.)   

But it is nice to know that our state lawmakers spent their time on issues which are of such importance to our economy this past year.  I mean, in addition to these new Penal Code provisions, they also passed a law allowing a motor vehicle passenger to turn on a DVD screen in the front seat, as long as the driver can’t see it (Assembly Bill 62).  Oh, and California dentists are now prohibited from making credit arrangements with patients who are under anesthesia (Assembly Bill 171), which makes me wonder how widespread this practice was before (a scary thought). 

Tongue-in-cheek comments aside, there are a few new statutes which, depending upon the business you are in, could be important for you to familiarize yourself with.  If your business is a restaurant, remember that the ban on trans fats kicks in this year (okay, that’s still a bit sarcastic).  If you sell a product or service using recurring periodic fees or charges (an “evergreen clause”, for example), you must be careful to disclose the details and obtain your customer’s specific written consent (Assembly Bill 340).  If you do home remodeling or other contracting work, be very sure that you have the necessary license(s), as a first offense will now cost you up to a $5,000 fine and up to six months in jail (Assembly Bill 370).  And if yours is a small, home-based child care business (for six or less children), you must be licensed in pediatric first aid and CPR (Assembly Bill 1368), just like larger child care facilities.

Starting a Business? Remember That Hope Isn’t a Plan.

Optimism is a necessary component of the entrepreneurial spirit.  When it comes to starting and running a business, however, ignoring legal risks and hoping that nothing bad will happen is not a plan.  There is just too much that can go wrong.  Identifying your legal risks and then addressing them to eliminate the risks you can and minimize and manage the risks you cannot eliminate is not a failure of optimism.  Instead, knowing what your business liability risks are and managing those risks should free you to move forward with developing and growing your business with realistic hope, not nagging worries.

What are the most common (and most important) legal liability issues businesses (no matter how small) face?  I don’t know that any business attorney would be able to produce a comprehensive list of every possibility, but here’s my attempt at a reasonably complete outline of the issues which should at least be considered by every entrepreneur:

1.  Business Formation Issues:  Should the business entity be a sole proprietorship, partnership, LLC or corporation?  Even a single owner can incorporate or form a single-member LLC, and this decision is not strictly a legal matter, but should be made in consultation with an experienced business accountant as well.    

 2.  Business Governance Issues:  Once a decision regarding the type of legal entity the business should be is made, creating governing documents for that entity must be considered.  Even a single-member LLC should, ideally, have an operating agreement (and may have to have one to keep its legal status, depending on the jurisdiction).  A business with more than one owner (whether LLC members, shareholders or partners) needs governing documents, period, even when the business is family owned and operated.  What happens if someone wants “out”?  What happens if someone wants someone else “out”?  How will decisions be made if everyone doesn’t agree (particularly if there are only two owners)?  How do you get paid, how much, and how is that to be decided?  And, something which is very important to cover (but often entirely overlooked) – what happens when it’s all over (also known as the “exit strategy”)?  You have a choice – hire a lawyer at the beginning, while everyone still likes each other, to formalize your relationship, or wait until a conflict develops and then hire a lawyer to litigate it.  I’ll give you three guesses about which approach costs less, and the first two guesses don’t count.      

3.  Employment Issues:  Whether the business has employees or independent contractors, there are legal liability issues which should be addressed and managed with appropriate written agreements.  See here for a related post on some of these issues.  As far as I am concerned, there is no good reason not to have a written employment and/or independent contractor agreement.  In addition, serious consideration should be given to creating an employee handbook to cover not only the terms and conditions of employment, but such issues as technology use and potential abuse (including e-mail, social media, your website, etc.) and intellectual property issues such as non-disclosure agreements and/or assignments (if pertinent to your business). 

4.  Transactional Issues:  What will your business buy, rent or sell?  Whatever it is, you’ll need a contract.  See here for a related post on this issue.  As discussed below, form agreements from the internet are worth just about what you pay for them (probably much less).  If you start there, be sure not to end there, if you’d like to keep the money you earn.         

 5.  Capitalization Issues:  Unless you are a sole proprietor bootstrapping the startup of a business with your own personal savings, the manner in which the business will be capitalized must be considered and the associated legal issues handled appropriately.  Venture capital, equity and stock option compensation all give rise to legal liability issues which must be effectively managed in order for the business to succeed.  Even small businesses with no employees, in which the owners provide all of the “sweat equity”, can benefit greatly from an agreement which explains just exactly what in the way of rolling up the sleeves is expected of every member; it sure helps to prevent misunderstandings, hurt feelings and, ultimately, deadlock or worse among the business owners.

Can you handle some of this stuff yourself, and save some money?  This may sound strange coming from an attorney, but yes, I think you can.  One can easily stumble into “penny wise, pound foolish” territory in doing so, however.  Several times over the past year, for example, I have been consulted by sole proprietors who used an online service to create their business entities a while back, but then didn’t have any guidance on what to do with them (required filings with the Secretary of State, tax payments, corporate formalities such as minutes and meetings, that sort of thing).  As a result, they derived no protection against personal liability by forming their business entities.  They may as well have saved the money creating a corporation or LLC altogether, purchased great insurance coverage, and operated as a sole proprietor for a while, until they were ready to take on a partner or investor, or hire an employee.  A corporation or LLC you don’t know what to do with is really a waste of time and money to create, even through an online source.

Another example is using form contracts you buy (or find) on the internet.  Again, this may sound strange coming from an attorney, but you may be able to save some legal fees that way.  If you’ve found some contracts on the internet the terms of which you like, there’s no harm in giving them to your lawyer and explaining what it is you like about them.  Certainly, lawyers use their own template contract terms when they create new agreements (you didn’t think we start from scratch every time, did you?)  My own templates are only valuable to me because they are the end product of years of learning and “tweaking”, and they are only the beginning (there is a significant amount of customized drafting required to tailor a template to fit the specific needs of a particular business transaction).  Here’s a perhaps more concrete example.  An employment agreement you found on the internet may be worse than not using an employment agreement at all if its terms violate the employment law of your specific jurisdiction.  So for heaven’s sake, at a minimum you will want to have a business attorney at least review the contracts you intend to use in your business.  And by that I mean all of them.  Because using agreements with conflicting provisions may (you’ve got it) be worse than using no agreements at all.  So, strictly from a cost-benefit analysis perspective, you have two choices.  You can hire a business lawyer to create your business contracts for you up front (i.e., template contracts you can actually use to make money), or you can hire an attorney to litigate disputes over inapplicable or misused internet forms later.  I’ll leave it up to you to guess which approach is the most cost effective for your business.        

 My sense is that there are three big reasons why small business owners (particularly start-ups) don’t want to hire an attorney to help them.  They are ego, money and fear, and I’d say they vary in order of importance depending upon whether or not the business owner(s) has/have prior entrepreneurial experience.  What I mean is this:

 1.  Ego:  You have to be a pretty confident, self-assured person to start a business.  Often, the belief that one knows all one needs to know about all things related to that business, and better than anyone else could possibly, is an associated personality trait.  Of course, most entrepreneurs who try to start and run a business, and actually succeed at it, learn at some point in time that failing to enlist the assistance of a trusted legal advisor is a mistake.  For those entrepreneurs, the second time around is usually the charm, because they have learned to set aside ego in favor of effective legal assistance.

 2.  Money:  If you don’t have it, it’s hard to spend it.  Or, there may be some ego overlap (why pay for something you don’t need?)  Again, there are things you can do yourself to save money, but “penny wise and pound foolish” just doesn’t work for most businesses.  If you can’t afford a large, expensive business law firm, find an experienced solo practitioner who will agree to help you by “unbundling” his or her legal services and performing work for a flat fee, and at least get the basics covered so you can make money and keep some of it too.  It won’t get easier (or cheaper) to handle the legal “basics” than at the very beginning of a business.    

 3.  Fear:  Entrepreneurs who have tried to work with attorneys in the past who tended to thwart rather than facilitate getting business transactions done are understandably fearful of travelling that path again.  The best I can recommend here is that you find a lawyer who advises but doesn’t dictate, and that you spend some time with that lawyer explaining your business and your tolerance for risk.  Treat your attorney as a part of your business team.  It is his or her job to advise you on how to manage your legal risks, but ultimately (unless you propose to do something illegal) it’s your call.  Legal liability risks won’t go away because you refuse to hire a lawyer at all, or do but then avoid discussing your business risks with your lawyer.  And you won’t save yourself any legal fees that way either.  One of the best explanations of this “universal rule” I’ve ever seen can be found here (and in a more humorous way, here).