Uninsurable Contract Clauses

          We all receive draft contracts from our customers with clauses that are absolutely or mostly uninsurable and often unenforceable – and many are so often throwaways. Some terms to avoid and suggested alternatives:

  • You shall defend, indemnify, and hold harmless [Customer], its officers, directors and employees from and against any and all claims, damages, causes of action, or allegations in any way arising out of or relating to Your work on the project. Your liability policies may only provide coverage, including a legal defense, for your negligence. I can count on one hand the number of times insurers have willingly picked up a defense that’s this broad.


  • You shall perform the services in accordance with the highest standard of care. This proposed language changes the coverage standard—it essentially requires perfect performance. Insurers are not in the business of insuring against a sure thing. Use alternative language.


  • You shall name [Customer] as an additional insured on all policies. Not all policies allow this – Work Comp, professional e&o, etcetera have exclusions for several reasons, including insured vs. insured battles.


  • You warrant that the [service, project, etc.]will comply with all laws, codes and regulations. Much more palatable: You shall make reasonable efforts to comply with applicable laws, codes, and regulations.


  • Then there’s the ominous clause: prevailing party shall be awarded its attorneys’ fees and costs. Delete the clause. There are no great alternatives here. Are “we” really going to go to the mattresses all the way to verdict? Negative. We want to fix anything certainly before suit and very little gets to verdict. What does “prevailing” mean in that regard?


  • You shall inspect the Work to ensure that it is in strict accordance with the contract documents. To the extent that this contractual language amounts to a guarantee of the Work, it is very possibly uninsurable. There is alternative language.
  • You shall report all safety hazards at the job site to Us. Sounds innocent enough, but by agreeing to this language, you are possibly taking responsibility for a duty that belongs to the Owner to protect visitors or its own employees.


When negotiating contracts, the argument that a clause is “not fair” may be of limited value, kinda like the playground arguments that usually fell on deaf ears. “It’s my ball. If you want to play, you gonna play by my rules.” 

It’s much more effective to point out that the Customer has as much interest as you do in having liability insurance coverage for the scope of work under the contract. That’s a valid argument and that’s easy for me to say, but sometimes difficult to get across. Many large and small legal departments review contracts by demanding these uninsurable / unenforceable terms. Rational, measured reasoning generally works out some of these problems.

Temperature controlled Food Transportation

The rule pertaining to transportation under the Food Safety Modernization Act – FSMA – is called the Sanitary Food Transportation Act – SFTA. Effective date is April 6 2017.

  • The final rule applies to shippers, receivers, loaders, and carriers who transport food in the United States by motor or rail vehicle, whether or not the food is offered for or enters interstate commerce. An entity is subject to the regulations in several ways – a shipper can also be a loader; a freight broker can be a shipper. Contractual shifting of responsibilities is allowed – be aware of what you’re signing.
    • Transportation regulations apply to:
      • Foods transported in bulk, e.g., juice, animal feed
      • Packaged foods not fully enclosed by a container, fresh produce
      • Foods that require temperature control for safety

      Key requirements:

      • Transportation operations must be conducted to prevent food from becoming unsafe during transport, including: assuring proper temperature controls; preventing contamination by contact with non-food items or raw food, or allergens. If a shipper, loader, broker, receiver, or carrier becomes aware of a possible material failure of temperature control or other condition that may render the food unsafe during transportation, the food shall not be sold or otherwise distributed. A shipper must develop and implement written procedures – which will then, of course, be contractually transferred to brokers and motor carriers – to assure vehicles and equipment are in appropriate sanitary condition; that previous cargo does not make food unsafe; that food requiring temperature control is transported under adequate temperature control (designation of required temps on the Load Sheet and proof of temperature control at delivery).While the enforcement and effective dates are still a year out, most if not all requirements will start to be enforced by shippers. I see a number of companies gearing up and using compliance as a selling point. You can expect to see language in contracts almost immediately.
      • Small reefer carriers are most likely the first affected. One or two losses in this new environment (of very conscious receivers) will hurt too much. Cargo insurance for reefer loads has too many unscrupulous exceptions to coverage. Freight brokers will see more claims for which they will be responsible – either by contract or contingent to the absence of underlying carrier coverage.
      • The burden will fall onto the motor carrier (and by extension, the broker) to prove – via USDA inspection – that the temperature deviation or other condition did not render the food unsafe.
      • Brokers will look more often to contingent cargo insurance
      • Carriers should buy better cargo coverage; brokers must monitor those policies.

If you own or manage a transportation company, the URS, or Unified Registration System, is about to become reality for you.

It’s the FMCSA’s new, “streamlined” registration system that will improve our collective looks, smooth wrinkles, and do away with paperwork.

It requires regulated transport businesses to register online. It eliminates the MC number, FF or MX number.

As of September 30th new registrants will use this system to obtain a DOT number and register operating authority. Established companies will thereafter edit or update registrations online.

The URS is a single, online federal information system that transport businesses use to register and update their information with the Federal Motor Carrier Safety Administration.

Don’t confuse it with that other registration system, UCR. The Unified Carrier Registration system is not part of the FMCSA; instead, it’s a federally mandated, annual state-administered registration program that exists to collect funds from trucking companies and give funds back to the states to support DOT officers’ ability to write violations and give drivers costly citations that often have nothing to do with safety.

The URS applies to all interstate motor carriers, including private and for-hire passenger and property motor carriers, freight forwarders, brokers, intermodal equipment providers (IEPs), hazardous materials safety permit (HMSP) applicants/holders, and cargo tank manufacturing and repair facilities under FMCSA’s jurisdiction. Mexican-domiciled carriers conducting long-haul, non-cabotage operations into the U.S. are exempt.

Again, the URS will require online registration for all filers, will use only your DOT number as identifier, will have a new fee schedule, and will maintain your records of financial responsibility and statutory process agency…umm, just like it does now, only…umm…better.

Applicants will begin using URS for registrations and changes starting Sept. 30. If you’re already registered with the FMCSA “the old way,” you will have until December 31st to start using the new system – but only as you update biennially or edit your registration.

There will undoubtedly be some changes, so read the FAQs and website updates. I wouldn’t work up a sweat over all of this just yet, though.

Oh, by the way, the Governor of Arizona did sign the independent contractor bill, so, as said previously, it’s effective August 6th.  Arizona-based carriers should review, negotiate, and rewrite their ICOAs with their OOs. And those interstate entities domiciled elsewhere, but who now wish to be Arizona-based carriers – should consider re-domiciling and changing operations a bit to take advantage of  the new law.


Anticipating the Governor’s signature on HB2114 this week, Arizona should have a very strong law defining independent contractors. To paraphrase:


… THE CONTRACTOR is operating an independent business and providing services as an independent contractor; the contractor acknowledges the absence of an employment relationship without any claim to UI benefits or other rights arising from an employment relationships; that the contracting party is not responsible to withhold any tax; the contractor is responsible for his or her tax obligations, for obtaining licensing, registrations, or other authorizations that would be necessary for rendering the contracted services.

There will be six of ten categories that the contractor acknowledges as existing in the relationship, most of which can  – or already are – in practice with our transport partners.

Perhaps the best benefit for those of us in the trenches who spend time educating courts and state agencies to the distinction between independent contractors and company employees is the explanation in the new law that “any supervision or control exercised by the employing unit to comply with any statute, rule, or code adopted by the federal government, this state …may not be considered for the purposes of determining the independent contractor or employment status of any relationship…”

This will eliminate the hang-up that judges and agencies see as indicia of employment control. Since all motor carriers and freight brokers – to some degree – are obligated to enforce drivers to adhere to FMCSR regulations for hours of service, safe operations on the road, off-duty, and in pre-trip operations, as well as in communications with dispatch personnel, customers and general safe and efficient routing, this phrase eliminates that argument.

I would recommend that each of us review and amend – slightly, but quite importantly – our ICOAs with our owner-operators so as to comply with this law. Thereafter I expect a slight learning curve in educating state agencies, Work Comp insurance underwriters, courts and, not the least, negotiating with our contractors.

But this new law – expected to be signed by Governor Ducey this week, and effective August 6th – will unburden Arizona businesses from the vestige of impossible compliance with conflicting federal and state laws, and some costly litigation efforts.

Perhaps another benefit, which was envisioned bringing this Bill to fruition, is making Arizona more attractive to businesses across the West, particularly California companies escaping burdensome – and conflicting – regulations and insurance rates.

Re-domestication efforts can be considered. There are a few boxes to check off as companies consider this, and the benefits and detriments should be considered individually.


Maybe at the top of annoyances coming out of the FMCSA is “Beyond Compliance,” the Agency’s false logic attempt to make trucking “safer” by rewarding motor carriers that buy equipment purportedly leading to better CSA scores. It would be nice to see the empirical data of enhanced safety stemming from the latest doodads, rather than just regulatory guessing.

Using the input received and the Congressional direction in the FAST Act, the notice published in the Federal Register provides details on FMCSA’s proposal and processes to allow “recognition” ( I’m thinking this doesn’t mean a gold star; instead probably some kind of bonus chit to help the carrier bypass inspections or audits) for a motor carrier that:

  1. installs advanced safety equipment; (gee, at a implementation price when shippers are balking at 2% rate increases?)
  2. uses enhanced driver fitness measures; (are we talking sleep apnea testing? If so, another waste of carrier resources and time. Measure neck size, much more reliable; or hire skinny drivers).
  3. adopts fleet safety management tools, technologies, and programs; (robots and algorithms replacing fleet Safety Management?) or
  4. satisfies other standards determined appropriate by the FMCSA. (maybe a realistic new driver training program with a real backing test?)

See more at: https://www.fmcsa.dot.gov/newsroom/fmcsa-seeks-input-%E2%80%9Cbeyond-compliance%E2%80%9D-program#sthash.626nkom0.dpuf

For another prime example of regulatory annoyance, look at the mandate for ELDs. Not one of us would dispute the fact that drivers can shave miles on ELDs just as they could with paper logs.  Even I could do it (not that I would ever).

Then there’s URS. As of September 30th, the Agency will use the singular URS registration number to make our world simpler. But it will cost hours in learning and complying with the new system. The old system and paper filings will no longer be allowed because the Agency believes the Unified Registration System will cut down on phantom registrations by unsafe carriers – all six of them. Gee, no one could ever figure a way to register around the URS if one were so inclined.

Lest we forget the new Food Safety Modernization Act, a safeguard work-in-progress for a non-existent problem, in a year from now shippers, consignees, warehouses, and freight brokers will be looking to one another for assurances and pointing fingers that their part in the logistics system was not the cause of unsanitary or spoiled food conditions.

In the words of the FDA, “In keeping with the overarching food safety goal of FSMA, this rule now solely focuses on practices that create safety risks, rather than on those that affect its quality but don’t necessarily make it dangerous to consume.” Hmm, a fix for a problem that doesn’t necessarily exist.

“Loaders” have been added as covered parties under the FSMA. According to the Act, a loader is a person who physically loads food onto a motor or rail vehicle (rail carriers are exempted from the rule entirely; motor carriers are not. Certainly, that has nothing to do with the strength of the rail lobby).

  • Before loading a food not completely enclosed by a container (oh, you mean those sea-tossed containers of produce that were sitting next to containers leaking toxic battery acid?) , the loader must determine that the transportation equipment is in appropriate sanitary condition.
  • Before loading a food requiring temperature control, the loader must determine that each mechanically refrigerated cold storage compartment is adequately prepared for refrigerated transportation, including precooling, if necessary.

Seriously, who is a loader? A Beneficial Cargo Owner, a Shipper, an Expeditor, a Broker, Warehouse, a Lumper? Who checks the trailer – and who’s qualified to check the trailer – to determine adequate preparation?

Oddly, carriers and brokers are supposed to look to the shippers for guidance in compliance. But the onus will undoubtedly still fall on carriers and brokers.

And the learned outsiders pondering the new law provide a worthless solution: Carriers are going to have to be given notice of what the transport protocols are in order to make “decisions” about whether they want to move the loads or not.


A broker and/or carrier is going to turn down loads because shippers don’t have protocols. It’s presently tough enough for reefer carriers to make a buck,  to be turned away at delivery, and without USDA inspection, or because the carrier didn’t show up at the convenience of the consignee, and the truck is left wandering around while shippers, brokers and carriers fight about responsibility. And it’s most often the carrier that is blamed – wrongly – and then the carrier’s insurer declines the claim for little or no reason. The FSMA is going to fix that?

Equipment must be clean and suitable for safe temperatures. No one has said what “clean” is or how often a trailer needs a washout, but records of prior loads must be kept. For criminal prosecution. As with the ELD mandate and Beyond Compliance, maybe only the better-capitalized brokers and carriers will have an easier time convincing shippers to follow protocols and force them to load those carriers with real cargo coverage that actually covers reefer loads. Ok, on second thought, no they won’t.

Then there’s the proposed Safety Fitness Determination program, a kind of pass / fail system that is to review tens of thousands of carriers based on the methodology of CSA scoring. I can attest that roadside stops are generating non-existent CSA violations because of: 1) DOT officers don’t really understand the regs (“Gee, what’s the 100 air mile exemption again? Don’t drivers have to keep logs with them?” – Ah, no. Or, this one: 2)  “You’ve crossed state lines. The 100 air mile exemption no longer applies.” Ah, yes it does). Or, this one’s popular 3) “Hmmm, your truck looks dirty, so these air lines must be chafing.”

And maybe the grandest incursions are by states into interstate commerce. It’s a tie:

  1. “Owner-operators are cheated by motor carriers. They are paid so little it’s like indentured servitude.” Actually, a recent study showed OOs had almost 30% greater net income than company drivers. Presumably these small business owners pay their share of taxes. But even with proof of their State and Federal returns evidencing that, judges decide they’re really just employees.
  2. FLSA wage and hour claims under the incorrect assumption that intra-state movements of cargo is not interstate commerce and thus not subject to the exemption in the Motor Carrier Act. Distilled down, the applicability of this MCA exemption depends centrally on whether the employee was engaged in interstate commerce. A driver-employee engages in interstate commerce if his delivery “forms a part of a “practical continuity of movement” across state lines from the point of origin to the point of destination, an understanding of the law that harkens back to a 1943 Supreme Court case, Walling v. Jacksonville Paper Co., 317 U.S. 564, 568 (1943).

I suppose ranting isn’t productive.

But instead of fixing non-existent problems, or developing a program of brownie points to skip real safety problems, or weeding out the very few phantom carriers, or owning up to the realization that neck size is a better indicator of fatigue, or that 24 hour sleep apnea tests are driven by the “sleep apnea industry,” why not spend money on fixing the traffic choke points and infrastructure problems that cause drivers to run over hours or become fatigued or use discretion to avoid the California break time rules, which truly affect safety and also delay loads? Wouldn’t that improve our transport system, decrease costs, and increase productivity?

The saving grace of all this is that it’s put my kids through college and I’m still off the streets.



The European Union has long had a type of worker with both the characteristics of employees blended with characteristics of what we in the U.S. call independent contractors. In the latest Uber settlement, the company seems to have played that Euro-card and compromised with lead plaintiffs in two class action suits, one in Northern California and the other in Massachusetts.

This outcome may suggest to us in the transport industry a renewed interest in happy mediums, that is, blended workers. The European model I studied and wrote about last summer is a bit more – okay, a lot more – closely defined and evolved than what Uber and the class members’ lead counsel proposes. If you’ll recall, the EU model of ICs in trucking grants some additional rights of employment despite having contracts and the real freedom to drive for other entities. We needn’t get into all that detail right now because we sure don’t want to sound socialistic again, but the time is probably ripe for us to re-write our ICOAs with a view towards mirroring both the EU model and the EU-lite model that Uber has smartly proposed in its settlement.

We should remember the main reason – or one of them anyway – that there’s opposition to independent contractor work: the fear of losing tax revenue. Real or not, the perception is that Owner-Operators in the transport industry are not self-reporting income or paying mandatory taxes. The EU model takes care of that, but we’re not ready for that just yet. Think of all the ALJs, State, and Federal Court judges whose heads would spin trying to grasp our industry’s regulatory quirks combined with the EU model.

That said, however, the time seems right to continue our efforts to adjust laws of contracting (see Arizona’s business’ efforts now circulating the State House) and also to gingerly approach our OO contracts with revisions that reflect these nascent terms from the EU and Uber’s proposed settlement.


A knowledgeable Lloyd’s broker once told me that the U.S. property and casualty market was but a boil on the rump of the worldwide insurance industry, meaning that while we in the U.S. transportation industry continually postulate on why and how to attract underwriters, our laser-like focus on insurance rates is a bit misguided; our rates are more dependent on the world reinsurance market and its focus on disasters, natural and man-made.

Reinsurance prices will continue to fall this year as competition for customers from hedge funds and other sources of alternative capital send premiums to their lowest in four years, according to Swiss Re AG.

“Price reductions have slowed down but there’s still pressure,” Edouard Schmid, the head of the property & specialty unit at the world’s biggest reinsurer, said in an interview in Zurich. “Having many years without large losses and an oversupply of traditional and alternative capital it’s more difficult for us to charge the prices we used to see for this protection.”

Swiss Re’s Property & Casualty unit posted a 22.2 percent return on equity for 2015, according to its earnings statement. That compares with a 4.7 percent ROE from the Stoxx 600 banking index in the same period, according to data compiled by Bloomberg.

           Hedge funds, sovereign wealth funds and other providers of alternative capital set aside $72 billion for reinsurance last year, a 12 percent increase from 2014, even as allocations from traditional capital fell 4 percent to $493 billion, according to research by Aon Plc. That led to price cuts when policies were renewed on April 1, according to reinsurance broker Willis Re Inc.

Lower than normal claims will indeed draw competitors. So you certainly benefit by watching your CSA scores and fixing your Safety Management Plan, especially in light of the FMCSA plan to expand their ability to monitor poor safety performers. Consider altering the term of your policy, if you see indicators of premium moving south.

Global insured losses from natural catastrophes and man-made disasters in 2015 fell to $37 billion, compared with an average of $62 billion over the previous 10 years, so there should be more capacity entering the U.S. transportation market, with underwriters backed by serious capital taking a flyer at our business.

Nonetheless, a few opportunities do exist despite the overall reinsurance market’s predominance on rates: be safe (have a Safety Management Plan and follow it); correct CSA errors via DataQ (not surprisingly, many DOT violations on DVERs are incorrect – e.g., DOT officers often do not understand the 100 air mile exemption to HOS regulations and violate and criminally charge drivers without legal basis); intervene very early in liability, Comp, and cargo incidents: many can be kept small and out of your loss runs.


This is not a fake story…

In its never-ending efforts at driving its employers to distraction, the California Supreme Court, in a case entitled, Kilby v CVS Pharmacy, clarified for the 9th Circuit the nature of employee seating that had previously been made a requirement in some California wage orders.

California law,  Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A), states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  This strongly suggests that employees are entitled to a seat when their tasks can be accomplished while so seated.

There has been no interpretation as to what seats are “suitable,” who determines the “nature of the work,” or under what circumstances the “nature of the work” “reasonably permits” suitable seats.

According to the California Supreme Court, whether an employee is entitled to a seat depends on an objective assessment of all relevant factors – the totality of the circumstances. But the analysis should begin with the examination by you, the employer, of whether tasks at a particular location may be performed while seated.

Heck, what else do you have to do anyway to run your business?

The requirement applies to individual tasks performed throughout the workday, rather than the entire range of duties performed during a complete shift or contained within a job description. I’d suggest you follow each of your employees for a typical work day and ask (constantly), “Can I get you a comfortable chair?”

Failure to comply with the seating requirement exposes employers to potential class action litigation (seriously), in which the employers will bear the burden to prove the unsuitability of seating (you may want to bring a video camera with you for later use in evidence as you follow your employees around). Oh, but don’t forget the privacy issues you may be raising, so ask permission to film their day.

The lack of funding provided to California’s Department of Labor gave purpose to the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), which “authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees.”  (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360).

I don’t know if you pay attention to TV broadcasts of war correspondents reporting from conflict zones, but there’s obvious ubiquity of the very familiar molded plastic chairs we all know and love.

Presumably these plastic chairs provide accommodative seating arrangements that pass muster with all sorts of rebels in war torn countries, so they should be just fine in your California work settings as well. Buy a set before the price skyrockets – or before a new international conflict puts a strain on their production.

More states are showing disfavor with employer-drafted conditions and restrictive covenants in the employment setting.

Oregon, Utah and Alabama are reflecting that trend.

A good example is Utah.

Its “Post-Employment Restrictions Act,” HB 251 voids any “post-employment restrictive covenant” entered on or after May 10, 2016, that extends beyond one year from the date of separation of employment, unless a non-compete clause is included in a severance agreement; or it’s related to the sale of a business.

That said, the law does not affect non-solicitation, non-disclosure, or confidentiality agreements, which are specifically excluded from the definition of a post-employment restrictive covenant.

The law also does not affect agreements currently in place. But it will limit any agreements entered into on or after May 10, 2016, including any renewals of currently existing agreements.

If you use non-compete agreements – in any state – you may want to limit to one year the term of the post-employment obligation. It’s tough enough to enforce the year in many states because courts see the limitation as an infringement on the ex-employee’s right to make a living.

While you’re at it, take a look at your severance policy in general and form  agreements. Don’t forget to include the fact that the agreement is mutually agreed upon, necessary to protect the goodwill of your business, supported by adequate consideration, and entered in good faith.

Okay, so just what amount is adequate consideration. A “pat on the back and a 15 cent subway token” once was sufficient (if there was a subway around), but I don’t know what Hillary paid recently when she got stuck in that turnstile, but it didn’t seem to be sufficient.

There is no absolute definition of adequate compensation. It depends on the nature of the position, the person’s compensation, but 5% has been bandied about as adequate in some cases.

And that being said, you must be cautious because penalties for employers seeking to enforce non-compete agreements are painful if it is eventually determined in court or via arbitration that the agreement is void. Damages can include lost wages, attorney fees, court costs.

If you must “separate” employees check on the best course of offering severance agreements to include non-compete provisions that don’t run afoul of the existing law or general feeling of judges and /or arbitrators.

When your employee needlessly damages company property or cargo belonging to another, can you dock his/her pay?

In Arizona, the law says you can. ARS 23-352. Withholding of Wages

No employer may withhold or divert any portion of an employee’s wages unless one of the following applies:

  1. The employer is required or empowered to do so by state or federal law.
  2. The employer has prior written authorization from the employee. An employer shall not withhold wages under a written authorization from the employee past the date specified by the employee in a written revocation of the authorization, unless the withholding is to resolve a debt or obligation to the employer or a court orders otherwise.
  3. There is a reasonable good faith dispute as to the amount of wages due, including the amount of any counterclaim or any claim of debt, reimbursement, recoupment or set-off asserted by the employer against the employee.

Accordingly, under Arizona law, an employer who has a written agreement with an employee may withhold wages that represent an amount of any claim of debt, reimbursement, and recoupment or set-off.  The altered wage paid must, however, never fall below the minimum wage in Arizona. Of course, if the employer is otherwise compensated by insurance, suit or subrogation, the employee must be reimbursed the lost wage, even if he’s no longer in your employ.