USING VOLUNTEERS
Because
of the economy, readers have been asking about volunteers.
QUESTION #1: Our landscape committee would like to do
pruning instead of using the landscape service. Will this create liability for us?
QUESTION #2: Several owners asked if we could use
volunteers for small maintenance jobs around the complex. Our funds are low so
this seems like a good idea. What do you think?
ANSWER: There is
always risk whenever an association uses volunteers. However, depending on the
task, the risk may be
acceptable. There are two sources of potential liability, (i) injuries to
volunteers, and (ii) negligence by a volunteer that results in a lawsuit against
the association.
Injuries. When it comes to injuries, there are steps boards can take
to reduce risk.
a. Workers' Compensation Insurance. If a
board member or committee member is injured while carrying out his/her duties,
most insurance carriers will not cover the injuries because volunteers are not
considered employees under Labor Code §3352(i). According to Tim Cline of the
Timothy Cline Insurance Agency, only two carriers offer coverage for volunteers, OneBeacon Insurance and Republic Indemnity. To receive
coverage, boards must appoint volunteers to committees and the appointments must be
recorded in the minutes. Otherwise, the volunteers are not covered.
b. General Liability Insurance. According to Carol
Fulton of the LaBarre/Oksnee Insurance Agency, if volunteers are not covered
under the association's workers' comp policy, injuries should be covered under
the medical and general liability coverage on the association's master insurance
policy. Like Tim Cline, Carol Fulton cautioned that volunteers should be on
committees approved by the board of directors.
c. Hold Harmless Agreement. Another precaution is to have volunteers sign a hold harmless agreement
releasing the association of liability in the event the volunteer
is injured. However, this may discourage volunteers if they have no protection in the event of an injury. Boards need to discuss this with legal counsel.
d. Safety. Another way to reduce risk is to make
sure volunteers have safe working conditions. This means no faulty ladders or
damaged tools. Another is to only allow
low-risk tasks (clerical work, picking up trash, sweeping sidewalks, planting
flowers, etc). Boards should avoid high risk tasks--anything involving heights
(cleaning gutters, replacing roof tiles) or power tools (chain saws, lawn
mowers, and so on).
Negligence. Another source of potential liability involves injury or
damage to third parties. If a volunteer makes a plumbing repair that results in
water damage to an owner's unit, the association could be liable. These kinds of
actions should by covered by the association's general liability and D&O
policies. However, the coverage may be conditional on whether the volunteer was
named to a committee in the board's minutes.
RECOMMENDATION: Boards need to make a
business decision regarding the benefits of volunteers versus the potential
risk. If associations want to use volunteers, boards should check with
their insurance broker and, if available, extend coverage to them. In
addition, boards should be diligent about naming volunteers to committees
and recording the appointments in the minutes.
Contact information for the Timothy Cline Insurance Agency and the
LaBarre/Oksnee Insurance Agency are in our Service Directory.
READER COMMENTS
About Last Week's Newsletter
#1. Architectural Committee. I noticed in the Q&As that
there was no reference to what an association's corporate docs say on the
matter. For instance, our documents require an architectural committee of 3
members, one being an architect. -Sue L. COMMENT:
The board's actions must be in concert with the governing documents. If a board wants to reduce the size of the committee to one, it needs to amend the
CC&Rs. -Adrian
#2. Architectural Committee. Your comments on
whether or not architectural review committee proceedings need to be open to the
members needs a minor qualification. Specifically, I don't think that conclusion
follows during the period when the ACC is under developer control because, at
that time, the committee is not a true committee of the Board and is not
technically under the control of the Association (even though the committee has
an Association representative). -Curt S. COMMENT:
Good point. -Adrian
#3. Rules Committee. I did not think a board could delegate its
responsibility on member discipline. -Sue L. COMMENT:
Boards can delegate their duties but not their liability. Boards routinely
assign their duties to managers. Even so, directors remain responsible for
overseeing their committees and managing agents and may be liable for their actions.
-Adrian
#4. Pool Safety. Thank you for taking the time to put together
such helpful and encouraging information. May I comment on the pool closing
question? I did not realize how SERIOUS a situation it was until I
started researching it on the net because of an article I was working on for our
newsletter. Please encourage all to dig deep into their research, and vote to
CLOSE those pools until they are fixed. -John F., Branson, Missouri. COMMENT: It becomes deadly serious if the
board ignores the law and someone dies as a result. When a child drowns (the
whole point of the law), a board's argument that, in their judgment, the risk of
harm was not great enough to justify closing the pool will not save them from
liability. They will be sued and they will lose. -Adrian