Fw: Onondaga Cycling Club Time Trial parking
Again, this is my personal opinion as a Board Member. Listen to it or ignore it as you see fit (as usual, lol).
1.
Did you ask her about whether contractual liability is an exclusion from our coverage? I believe it often is, which means there might be a question
of coverage on our promise to indemnify the third party.
2.
I don’t think she read the Indemnity Agreement correctly. It basically says we are indemnifying the bus company from
any claims arising out of our parking there, regardless of whether we are negligent at all (“whether or not caused in whole or part by“ our members’ acts or omissions (our negligence)). If you remove the “or part”, you are still left with “whether
or not caused” wholly by our negligence. That still means we would be indemnifying them even if we are not fully responsible. As an example, if a truck goes out of control and turns into the parking lot and strikes a cyclist, and both OCC and
the bus company are sued, I still read that to mean we would have to indemnify and defend the bus company even if neither us nor the bus company was at fault. Apart from the fairness of the language, that is a real problem if there is no coverage (as per
number 1 above).
I understand the bus company is doing us a favor, but this seems more fair (assuming there is coverage): remove “whether or not caused in whole or part” and
replace it with “to the extent caused by the acts or omissions of Onondaga Cycling Club’s agents,” etc. That means we would only indemnify them up to the extent of our own negligence. They may not agree to that, but the other just doesn’t make sense to me.
Finally, my concerns remain regarding the release language (the third paragraph), but as long as everyone understands that we would be releasing them from any
damage caused by their negligence (just not releasing them from are their intentional acts or gross negligence), I will go with whatever everybody wants.
I am interested in hearing what Steve and Colleen think about the suggestion to remove “or part”.
Tom
Thomas J. Fucillo
Counselor at Law
Menter, Rudin & Trivelpiece, P.C.
Counselors at Law
308 Maltbie Street, Suite 200
Syracuse, NY 13204-1498
Telephone: (315) 474-7541
Fax: (315) 474-4040
www.menterlaw.com
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From: bikebod_test@PROTECTED [mailto:bikebod_test@PROTECTED]
Sent: Tuesday, May 05, 2015 10:52 AM
To: bikebod_test
Cc: Steve Ransford
Subject: [bikebod_test] Fw: Onondaga Cycling Club Time Trial parking
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All,
I had a discussion yesterday with our insurance agent Kristee Emshwiller from American Specialty Insurance about our proposed utilization of the parking
area at New York Bus Sales. I sent her a copy of the Indemnity Agreement that was sent to us by, JoMarie Hanggi, the security Director at NY Bus Sales. The email below is Kristee's assessment of the Indemnity Agreement. I have already mentioned to
JoMarie (NY Bus Sales) that we had some concerns with the phrase "intentional acts or gross negligence" and I asked if she would consider removing the word "gross". She stated she would look into it and let me know.
Anyone have a comment about Kristee's assessment/recommendation? For the most part she don't have much problem with what New York Bus Sales wanted
from us.
Thanks,
Brian
----- Forwarded Message -----
From: Kristee Emshwiller <KEmshwiller@PROTECTED>
To: 'Brian Goetke' <goetke1@PROTECTED>
Sent: Tuesday, May 5, 2015 9:28 AM
Subject: RE: Onondaga Cycling Club Time Trial parking
Hello Brian,
I have reviewed the Indemnity Agreement for New York Bus Sales. In the second paragraph, I would recommend removing the words “or part”
(see below) as this is describing that your club would accept full responsibility should you only be partially responsible for the acts or omissions of your club.
“In consideration thereof, Onondaga Cycling Club (a) agrees and hereby does defend, indemnify and hold NY Bus and its employees, agents
and representative harmless from and against any and all liability, loss, cost (including reasonable attorney’s fees), judgment, damage, claim (including any claim or charge by an governmental authority), suit or responsibility whatsoever (including without
limited the generality of the foregoing, any liability for personal injury, death or property damage) arising out of or relating to the Onondaga Cycling Club’s members parking their cars on the Premises and utilization of the Premises for such purpose, whether
or not caused in whole or part by the acts or omissions of Onondaga Cycling Club’s agents, members, or representatives and (b) warrants that it maintains and agrees to maintain for as long as it uses the Premises, comprehensive
general liability insurance naming NY Bus as an additional insured and shall furnish proof of the same as of this date and each anniversary date thereafter for as long as NY Bus allows Onondaga Cycling Club the courtesy to park cars on the Premises.”
Paragraph three discusses property. Having your property (car, bikes, etc.) in a public location is a risk that you would have to take
regardless. I do not see any changes that would need to be made with paragraph three.
Please let me know if you wish to move forward with the Additional Insured Certificate request. I did look into the Primary and Non-Contributory
wording and I would be able to add this on without a charge. When you are ready, please complete the attached certificate request form and I will be able to process the cert. and send to you.
As promised, I have also attached a copy of your policy for your records.
Best regards,
Kristee Emshwiller
FastCov Account Executive
AMERICAN SPECIALTY INSURANCE & RISK SERVICES, INC.
7609 W. Jefferson Boulevard, Suite 100
Fort Wayne, Indiana 46804-4133
Direct: 260.755.7266
Toll Free: 877.441.4011 | Fax: 260.969.4729
Insuring America's Pastimes and Future Times
®
From: Brian Goetke [mailto:goetke1@PROTECTED]
Sent: Monday, May 4, 2015 11:36 PM
To: Kristee Emshwiller
Subject: Onondaga Cycling Club Time Trial parking
Hello Kristi,
As I mentioned on the phone today, we are looking to utilize a parking lot near a Time Trial course for we like to use on alternating Tuesday evenings
from May - mid-September. The parking lot is the property of New York Bus Sales. New York Bus Sales is willing to allow the club to use the parking area if we sign an indemnity agreement and add them to our policy.
I have attached a copy of the indemnity agreement put forth by New York Bus Sales for your review.
As we discussed, New York Bus Sales would like to be named as an additional insured on a primary, non-contributory basis on our policy. We don't want
to execute any changes yet. We need some pieces to fall into place first. We need to know how we would handle the New York Bus Sales requirements.
Let me know what you think of the indemnity agreement.
Thank you,
Brian
Brian Goetke
Board Member, OCC
TIme Trial co-Directer
315-727-1458
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