Plow Vendors Indemnification Clause and Insurance

My previous association was located in Fairfax County, VA.

I went through my old files and all the snow removal contracts I have copies of does include an indemnity clause. It was for falls, accidents and lack of ingress/egress. I was on the Board for 8 years and never had an issue over falls. People complained that we weren't high enough on the contractors list to be one of the first properties plowed, but nothing concerning falls. If someone complained about ice, we would contact the contractor to make an extra salt run.

Not plowing, I think would place the Association at more risk than hiring a good contractor to remove snow from private streets.
Worst case, someone dies because an ambulance couldn't access the property due to Associations failure to plow.

I will also point out that residents need to expect ice even with sidewalks and streets plowed. Ice can cause falls. Virginia has contributory negligence clauses (i.e. did the resident use enough precaution when venturing out into the snow/ice?)

To prove fault/negligence on part of the Association, one would have to show the Association failed to take reasonable steps to address snow and ice. Reasonable steps would be to plow, salt roadway, plow again later in the day if needed, salt roadway again as needed throughout the next few days.

I offer this article from 2021:

Shoveling Out - Snow Removal Responsibilities and Liability for Community Associations

Thank you Tim. If anything the unit owners would have some coverage thru their HO-6. And re the roads, etc - I guess the D&O for the Board would have to cover if claims arose. So so unbelievable - just can;t get through on the exposure issue. It is pushing rope up a hill

I am wrestling with two issues (I am non Board member trying to help)
1) Will the HOA be covered under the liability portion of the Bus Owner Policy if it accepts the indemnification clause of the vendor, thus accepting more liability?

2) And the Board now has made the decision that they won't do which a) they have to do per the bylaws, and b) can be sued under the D&O for negligence. I am hoping that if the BOP policy will still cover liability for the plow vendor with no liability - the Board will change its decision. It is so short sighted at the moment.

Actually, the companies we used accepted blame for major damage.
They would not accept blame for minor damage.

Having worked with the contractors, the good one's will accept responsibility for hitting a car.

"Subject to compliance by Client with the notice provisions detailed below, [CONTRACTOR] will assume responsibility for damages to physical property caused by its gross negligence or intentional misconduct The preceding notwithstanding, [CONTRACTOR] is not responsible for minor damage which may result from performing this type of service."

Considering how insurance companies are putting in all sorts of clauses where they won't pay thus ir that if certain things happen, this doesn't surprise me (Dean's correct in that this could be why HOAs are having a hard time finding contractors).

That said, have you read the ENTIRE snow removal contract? What is your community's snow removal policy and are homeowners aware of it? Has anyone spoken to the community's master insurance carrier to see what could be done to reduce risk? You say you're trying to help the board,which is good, but since you're not on it, be sure you're passing on your suggestions to them, since making these decisions is their responsibility - hopefully they're listening.

I dont think this is a D & O insurance issue, unless they're not addressing this at all, despite a history of major snowballs and/or skirmishes with insurance over property damages. Even then, you'd have to prove negligence and that stuff, so focus on the contracts for now. In light of this clause, the board may have to decide if they want to try finding another vendor or reviewing the snow removal policy and inform homeowners what's changing and why.

For example, if people park in a street that gets plowed, you may need to remind them to move the cars as quickly as possible to ensure complete cleaning. Otherwise neither the association nor the contractor will be responsible for damages

This topic is one of the reasons I live in SC. Yes we can get freak snow storm, but it melts fast.