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ParrisG (North Carolina)
Posts: 9
Posted:
We are trying to renew our HOA insurance.
However, several of our vendors have an indemnification clauses in the contract.
None of the insurance companies will take our insurance with this wording in vendor contracts.
The vendors refuse to remove the wording and we have not found replacements for the vendors.
What other options do we have?
CathyA3 (Ohio)
Posts: 6,299
Posted:
Just so I understand the question: who is indemnifying whom in these clauses? Is the association supposed to indemnify the vendor, or is it the other way around?
ParrisG (North Carolina)
Posts: 9
Posted:
Thanks for the clarification question.
The vendor has the indemnification clause in the contract.
Which means that the HOA needs to indemnify the vendor. That is why it is an HOA insurance issue.
The HOA insurance company does not want the HOA to indemnify the vendor.
SheliaH (Indiana)
Posts: 6,964
Posted:
I wasn't completely familiar with this, so I did some Googling - for those of you who didn't know either, you might find this article eye-opening:

https://www.stephenson.law/blog/dont-get-us-started-on-indemnity-clauses#:~:text=Why%20are%20indemnity%20clauses%20misused,loss%20if%20the%20risk%20materialises

As for ParrisG's question, this is a toughie. You may need to keep looking for master association insurance, which is getting tougher in light of recent natural disasters and Surfside (which is probably the real reason this is happening. Have your attorney look into this for options - I'm thinking you may be looking at a considerably higher deductible or premium (maybe both).

I'm also wondering what type of vendors are you talking about? Normally, our vendor contracts state the vendor has to release us from any liens from subcontractors (that is, if they don't get paid by the main contractor, they can't put a lien on association property to get the money). In some instances, certain types of professions in my county are required to have performance bonds (if the work doesn't comply with county code or the vendor doesn't finish the job, a claim can be filed against the bond).

Maybe you can ask the vendors about getting a performance bond if they want to keep your business. Asking the insurance companies how other clients have addressed this issue (especially the ones in your area) may also help. I know car insurance companies will guarantee repair work if you use repair companies in its network - if this is a long winded way of getting you to agree to that, see if you can find out who's in the network and send them a RFP and do your due diligence to see if this is someone you want to contract with.

Again, these are all guesses, but I hope they might lead to other strategies that can help. Good luck and do keep us updated (I'd like to know the answer to this myself)


If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
SheliaH (Indiana)
Posts: 6,964
Posted:
Now that I think about it, I recall we did come up with a similar issue when the association was considering renting out an area outside our clubhouse for a pop machine (we used to own one, but it was damaged after someone broke into it and stole the money, and a replacement met the same fate). We'd used the revenue for extras for maintenance and improvements to the common area, but after we were presented with this requirement, we said "no thank you" and haven't had a pop machine since. You may need to take a look at those services to see how often you use them - if it's only once a year, for example, it may be worth it to pay more money for someone who doesn't have have that language in the contract.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
CathyA3 (Ohio)
Posts: 6,299
Posted:
If it comes down to a decision between good quality insurance and keeping the vendors you've used in the past, I'd say the insurance is more important (ie. look for different vendors or at a minimum - which I don't recommend - negotiate price concessions in exchange for assuming the vendors' liability). I don't recommend it because your price reductions are capped at what you negotiate while the HOA's liability may be unlimited. If you can negotiate an indemnity clause that's capped at some level close to your cost savings, that's maybe OK, but I don't expect the vendors to agree to that.

Sheila's suggestion of talking to your insurance agent about other associations' experiences is a good one.

Thinking out loud here... It may depend on what the vendor expects to be indemnified for - some things may be reasonable and others not. If they're using an indemnity clause to get around providing the normal sorts of warranties or guarantees that you'd expect, that's not good. Or if they're using it to avoid insuring their own workers, ditto.

Accidents can happen on the job, and even excellent workers can do things that damage their clients' property. But I think that accountability for such things is part of the risk of doing business. The client has no control over the things for which the vendor wants them to assume liability, and the client's insurer may not be able to accurately assess the risk. Meanwhile the vendor does have some level of control. IMHO vendors should properly price their services to account for these added costs.

If associations assume the risk, it's also counterproductive for them in the long run since the vendors have less incentive to perform at a high level. I imagine the marketplace will probably sort this out eventually: vendors who demand indemnity clauses will get less work - and if they lose enough clients, they'll maybe rethink their approach.

Another interesting article written by a lawyer whose firm represents co-ops and condos:

Indemnity Clauses: What Your Board Needs to Know

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