Liability for loss/damage of equipment at DVinfo.net

Martin Pauly · September 6th, 2007, 03:49 PM

I am asked to shoot a wedding video, and I have asked another videographer to help as a second cameraman, providing his own camera (Sony V1). He is a very capable guy, and the price he is asking is reasonable. The one thing I am not sure about is that he wants me to be liable for loss or damage of his equipment, in case anything bad happens during the wedding - basically anything beyond the normal wear and tear.

Is this normal in cases like this one, and if so, how should I limit my risk? Is there equipment insurance available that can flexibly cover equipment owned by subcontractors that I work with on individual assignments?

Thanks in advance for your advise!

- Martin

Chris Barcellos · September 6th, 2007, 04:23 PM

You should have a contract with this gentleman so it is all spelled out who is responsible for what, and what his status is, what he is providing, whether he is a statutory employee, or or a subcontractor, who owns the product being produced, etc. As an attorney, I can tell you that these are the things that, going unclarified, will create issues later.

Josh Laronge · September 6th, 2007, 04:49 PM

Martin,
Heed Chris's words. I had my attorney draw up a work for hire agreement that my assistants, editors and second shooters all have to sign. I have them sign it before any work is started and I tell them signing it is a requirement of the job when we are initially talking about pay/expectations. In the agreement it spells out a number of things that could become a problem later on. Some items are:
Ownership of IP
Liability for equipment
Confidentiality
Non-compete
Indemnification

It's quite a substantial document (5 pages) and seems pretty complete to me (I'm not a lawyer but I trust mine). Hopefully, I'll never have to test it. I think it cost me $300; I'd suggest to you or anyone who hires others that you get a document like this written for you and use it.

Martin Pauly · September 6th, 2007, 07:11 PM

Chris and Josh,

it goes without saying that these things must be captured in writing, and you bring up some important details to include.

My question, though, was more weather the liability for lost or damaged equipment is typically with the person or company hiring the subcontractor. I am curious what agreements others usually make.

- Martin

Don Donatello · September 6th, 2007, 08:05 PM

IMO - independent/subcontractor contractor - they should have their own equipment/liability insurance ( including workmans comp) ...
if you carry insurance they will tell you that if the person you are contacting with does NOT carry workmans comp or liability insurance then do hire them as subcontractor ...

Don Bloom · September 6th, 2007, 08:35 PM

As one who has been on both ends both as a hired IC and one who has hired IC's I am not covered by anyone elses insurance nor would I expect to be any more than anyone I hre would or should be covered by my insurance. IF they don't have their own insurance then it's simple. Do not hire them. To expect YOU to cover them when they are not a full time employee but an independent contractor is to me ridiculous. If they are a professional in this industr then they have their own insurance and you would'nt need to cover them. If they don't have insurance, for thier gear, liability and workmans comp then let them stay home. Too many headaches.
If I sound like a grumpy old man about this issue I am. I knew 1 guy that hired someone as an IC who had no insurance and my friend put him on his policy and wouldn't you know it. His gear got "stolen" and he got "hurt" trying to prevent that from happening. Almost put my friend out of business, his premiums went sky high and the headache he had from this lying cheating scumbag almost gave him a heart attack. He found out later (about 2 years) that this was not the first time this guy did this.
My motto is either they got it or they stay home.

Don

Chris Barcellos · September 6th, 2007, 09:13 PM

Yeap. Definitely hire the person as an independent contractor who is providing equipment and services for the project. You should not take on responsibility for injuries he may sustain, or losses in equipment. He is required to provide and secure his own equipment.

Now I will tell that if he gets hurt on the job, and it is serious, he will try to turn it around into an employer/employee relationship, so you want to be sure your contract meets legal requirements of establishing a legal relationship that is considered contractor /sub contractor relationship under the laws of your state.

Don Donatello · September 6th, 2007, 11:43 PM

you can have signed contracts that state one is working as a IC , and you're not responsible for anything etc but in the end ( at least in CA) if something was to happen - the labor dept will decide if they were working a IC ... in CA one cannot sign away their labor rights ...

now i have to ask is the 2nd camera really a IC ?
seems the Video person hired to shoot the wedding is the IC and those working under him/her are employees ... now true the 2nd person is using their own equipment .. who is supervising them at the wedding ( is the 1st video person telling the 2nd camera what to do and where they should set up camera ? ) ... does the 2nd camera have their own insurance ( workmans comp) ? ... does the 2nd camera file their taxes with a schedule E ( or A and list themselves as a IC ) ... is the 1st camera going to send 2nd camera a 1099 ? ....

in general i have found it best to play it safe - i would hire 2nd camera as a employee - when these persons insist they are IC - i ask for their workmans comp insurance # - no insurance = no IC - just not worth the problems that can happen down the line ... under workmans comp if one gets hurt on the job it is workmans comp insurance that pays the medical bills and pays salary ... no workmans comp then who is going to pay medical bills and loss salary ??? not me !!!

Steve House · September 7th, 2007, 03:27 AM

Quote:

Originally Posted by Don Donatello

you can have signed contracts that state one is working as a IC , and you're not responsible for anything etc but in the end ( at least in CA) if something was to happen - the labor dept will decide if they were working a IC ... in CA one cannot sign away their labor rights ...

now i have to ask is the 2nd camera really a IC ?
seems the Video person hired to shoot the wedding is the IC and those working under him/her are employees ... now true the 2nd person is using their own equipment .. who is supervising them at the wedding ( is the 1st video person telling the 2nd camera what to do and where they should set up camera ? ) ... does the 2nd camera have their own insurance ( workmans comp) ? ... does the 2nd camera file their taxes with a schedule E ( or A and list themselves as a IC ) ... is the 1st camera going to send 2nd camera a 1099 ? ....

in general i have found it best to play it safe - i would hire 2nd camera as a employee - when these persons insist they are IC - i ask for their workmans comp insurance # - no insurance = no IC - just not worth the problems that can happen down the line ... under workmans comp if one gets hurt on the job it is workmans comp insurance that pays the medical bills and pays salary ... no workmans comp then who is going to pay medical bills and loss salary ??? not me !!!

But if you hire them as an employee you have to pay Workman's Comp, file withholding taxes, send a W2 at the end of the year, etc. Is it worth it to use the guy for one or two days?

Don Donatello · September 7th, 2007, 09:34 AM

"Is it worth it to use the guy for one or two days?"

if i ask a person to work as a IC and one of the 1st things they ask me is about INSURANCE ( red flag to me ) - if i go with that person it's worth it ... SS tax , workmans comp , state disability, unemployment tax etc might add on 12 - 22% ... i usually just go thru a payroll company ( looking at 22%)- they then are the employer on record and take care of W2 etc .

Chris Barcellos · September 7th, 2007, 10:13 AM

As Don is indicating, the determination in California as to whether a person is an independent contractor is not necessarily left up to the parties. The state recognizes that employees may not understand the intricacies of of the law, and, and that employers may try to escape their own employer obligation by "sub-contracting" around the law. It is definitely a complex issue, and there is a whole body of law dedicated to making the determination. A decision can involve issues of how much control is exerted, the type of work performed, the requirements placed on the party, whether it specific person is hired, or the company, etc.

And of course, the original poster in this thread lives in Iowa, and these things tend to be decided on a jurisdiction by jurisdiction basis, so I would not pretend to advise someone in Iowa what the best policy is.

Ultimately, your best protection is to see a lawyer in your jurisdiction. In addition, even with advice from your attorney, I would also meet with your Insurance carrier representative, and frankly discuss your insurance needs, advising him that you may hire persons that might be considered casual employees, because even if you have and independent contractor agreement, a court could still set that aside, and find that due to various factors, the employee must be considered a statutory employee. In California, failure to have Workers Compensation Insurance in an employer employee situation has its own penalties that can put you at risk of severe penalty, so casual employee insurance is recommended.

Josh Laronge · September 7th, 2007, 12:42 PM

I came across this site that has pre-written business/legal forms. There is one for an IC multi-media artist which I imagine could easily modified for videographers.

http://allbusiness.legalzoom.com/hir...3472199-1.html

My disclaimer: I'm not a lawyer; I don't know if these forms are any good; If you use one and get sued and the form doesn't hold up - don't come knocking.
--JL

Colin Ard · September 10th, 2007, 03:08 PM

Hey Martin, do you have anything in your initial contract with the client about liability for damage if they cause it? Maybe you could just add a clause in that paragraph that states not just you, but your employees, assignees, and those contracted to work for you to be covered. That way, if a person gets drunk and breaks his V1, he is covered by your contract but you are not liable. If he drops his camera in the parking lot, it's not your fault either.
My attorney charges ~$300 per contract, but it's worth it the first time something happens. Cheap insurance when you're talking the kind of money in equipment that we all are.
My .02

Martin Pauly · September 10th, 2007, 03:18 PM

Thanks a lot for all your suggestions. Right now it seems that everything hinges on whether the other videographer working for me with his V1 would constitute a rental of his camera to me. His insurance does not cover this case. However, I wouldn't even be touching his V1, so I don't see how this could be interpreted as a rental (though he believes it does).

He is going to talk to his insurance agent to find out for sure if he has coverage for his equipment in this particular case or not. If he does, I think we are in good shape. If he doesn't, you'll see my post in the "Helping Hands" area (but I am hoping that won't be necessary)...

- Martin

September 6th, 2007, 03:49 PM	#1
Martin Pauly Major Player Join Date: Apr 2006 Location: Cedar Rapids, IA Posts: 563	Liability for loss/damage of equipment I am asked to shoot a wedding video, and I have asked another videographer to help as a second cameraman, providing his own camera (Sony V1). He is a very capable guy, and the price he is asking is reasonable. The one thing I am not sure about is that he wants me to be liable for loss or damage of his equipment, in case anything bad happens during the wedding - basically anything beyond the normal wear and tear. Is this normal in cases like this one, and if so, how should I limit my risk? Is there equipment insurance available that can flexibly cover equipment owned by subcontractors that I work with on individual assignments? Thanks in advance for your advise! - Martin __________________ Martin Pauly

September 6th, 2007, 04:23 PM	#2
Chris Barcellos Inner Circle Join Date: Nov 2005 Location: Elk Grove CA Posts: 6,838	You should have a contract with this gentleman so it is all spelled out who is responsible for what, and what his status is, what he is providing, whether he is a statutory employee, or or a subcontractor, who owns the product being produced, etc. As an attorney, I can tell you that these are the things that, going unclarified, will create issues later. __________________ Chris J. Barcellos

September 6th, 2007, 07:11 PM	#4
Martin Pauly Major Player Join Date: Apr 2006 Location: Cedar Rapids, IA Posts: 563	Chris and Josh, it goes without saying that these things must be captured in writing, and you bring up some important details to include. My question, though, was more weather the liability for lost or damaged equipment is typically with the person or company hiring the subcontractor. I am curious what agreements others usually make. - Martin __________________ Martin Pauly

September 6th, 2007, 09:13 PM	#7
Chris Barcellos Inner Circle Join Date: Nov 2005 Location: Elk Grove CA Posts: 6,838	Yeap. Definitely hire the person as an independent contractor who is providing equipment and services for the project. You should not take on responsibility for injuries he may sustain, or losses in equipment. He is required to provide and secure his own equipment. Now I will tell that if he gets hurt on the job, and it is serious, he will try to turn it around into an employer/employee relationship, so you want to be sure your contract meets legal requirements of establishing a legal relationship that is considered contractor /sub contractor relationship under the laws of your state. __________________ Chris J. Barcellos

September 7th, 2007, 10:13 AM	#11
Chris Barcellos Inner Circle Join Date: Nov 2005 Location: Elk Grove CA Posts: 6,838	As Don is indicating, the determination in California as to whether a person is an independent contractor is not necessarily left up to the parties. The state recognizes that employees may not understand the intricacies of of the law, and, and that employers may try to escape their own employer obligation by "sub-contracting" around the law. It is definitely a complex issue, and there is a whole body of law dedicated to making the determination. A decision can involve issues of how much control is exerted, the type of work performed, the requirements placed on the party, whether it specific person is hired, or the company, etc. And of course, the original poster in this thread lives in Iowa, and these things tend to be decided on a jurisdiction by jurisdiction basis, so I would not pretend to advise someone in Iowa what the best policy is. Ultimately, your best protection is to see a lawyer in your jurisdiction. In addition, even with advice from your attorney, I would also meet with your Insurance carrier representative, and frankly discuss your insurance needs, advising him that you may hire persons that might be considered casual employees, because even if you have and independent contractor agreement, a court could still set that aside, and find that due to various factors, the employee must be considered a statutory employee. In California, failure to have Workers Compensation Insurance in an employer employee situation has its own penalties that can put you at risk of severe penalty, so casual employee insurance is recommended. __________________ Chris J. Barcellos

September 6th, 2007, 04:49 PM	#3
Josh Laronge Major Player Join Date: Dec 2006 Location: Jupiter, FL Posts: 241	Martin, Heed Chris's words. I had my attorney draw up a work for hire agreement that my assistants, editors and second shooters all have to sign. I have them sign it before any work is started and I tell them signing it is a requirement of the job when we are initially talking about pay/expectations. In the agreement it spells out a number of things that could become a problem later on. Some items are: Ownership of IP Liability for equipment Confidentiality Non-compete Indemnification It's quite a substantial document (5 pages) and seems pretty complete to me (I'm not a lawyer but I trust mine). Hopefully, I'll never have to test it. I think it cost me $300; I'd suggest to you or anyone who hires others that you get a document like this written for you and use it.

September 6th, 2007, 08:05 PM	#5
Don Donatello Hawaiian Shirt Mogul Join Date: Nov 2001 Location: northern cailfornia Posts: 1,261	IMO - independent/subcontractor contractor - they should have their own equipment/liability insurance ( including workmans comp) ... if you carry insurance they will tell you that if the person you are contacting with does NOT carry workmans comp or liability insurance then do hire them as subcontractor ...

September 6th, 2007, 08:35 PM	#6
Don Bloom Inner Circle Join Date: Jan 2003 Location: Chicago, IL Posts: 6,609	As one who has been on both ends both as a hired IC and one who has hired IC's I am not covered by anyone elses insurance nor would I expect to be any more than anyone I hre would or should be covered by my insurance. IF they don't have their own insurance then it's simple. Do not hire them. To expect YOU to cover them when they are not a full time employee but an independent contractor is to me ridiculous. If they are a professional in this industr then they have their own insurance and you would'nt need to cover them. If they don't have insurance, for thier gear, liability and workmans comp then let them stay home. Too many headaches. If I sound like a grumpy old man about this issue I am. I knew 1 guy that hired someone as an IC who had no insurance and my friend put him on his policy and wouldn't you know it. His gear got "stolen" and he got "hurt" trying to prevent that from happening. Almost put my friend out of business, his premiums went sky high and the headache he had from this lying cheating scumbag almost gave him a heart attack. He found out later (about 2 years) that this was not the first time this guy did this. My motto is either they got it or they stay home. Don

September 6th, 2007, 11:43 PM	#8
Don Donatello Hawaiian Shirt Mogul Join Date: Nov 2001 Location: northern cailfornia Posts: 1,261	you can have signed contracts that state one is working as a IC , and you're not responsible for anything etc but in the end ( at least in CA) if something was to happen - the labor dept will decide if they were working a IC ... in CA one cannot sign away their labor rights ... now i have to ask is the 2nd camera really a IC ? seems the Video person hired to shoot the wedding is the IC and those working under him/her are employees ... now true the 2nd person is using their own equipment .. who is supervising them at the wedding ( is the 1st video person telling the 2nd camera what to do and where they should set up camera ? ) ... does the 2nd camera have their own insurance ( workmans comp) ? ... does the 2nd camera file their taxes with a schedule E ( or A and list themselves as a IC ) ... is the 1st camera going to send 2nd camera a 1099 ? .... in general i have found it best to play it safe - i would hire 2nd camera as a employee - when these persons insist they are IC - i ask for their workmans comp insurance # - no insurance = no IC - just not worth the problems that can happen down the line ... under workmans comp if one gets hurt on the job it is workmans comp insurance that pays the medical bills and pays salary ... no workmans comp then who is going to pay medical bills and loss salary ??? not me !!!

September 7th, 2007, 09:34 AM	#10
Don Donatello Hawaiian Shirt Mogul Join Date: Nov 2001 Location: northern cailfornia Posts: 1,261	"Is it worth it to use the guy for one or two days?" if i ask a person to work as a IC and one of the 1st things they ask me is about INSURANCE ( red flag to me ) - if i go with that person it's worth it ... SS tax , workmans comp , state disability, unemployment tax etc might add on 12 - 22% ... i usually just go thru a payroll company ( looking at 22%)- they then are the employer on record and take care of W2 etc .

September 7th, 2007, 12:42 PM	#12
Josh Laronge Major Player Join Date: Dec 2006 Location: Jupiter, FL Posts: 241	Legal Documents I came across this site that has pre-written business/legal forms. There is one for an IC multi-media artist which I imagine could easily modified for videographers. http://allbusiness.legalzoom.com/hir...3472199-1.html My disclaimer: I'm not a lawyer; I don't know if these forms are any good; If you use one and get sued and the form doesn't hold up - don't come knocking. --JL

September 10th, 2007, 03:08 PM	#13
Colin Ard Regular Crew Join Date: Mar 2006 Location: Reno Nevada Posts: 33	Hey Martin, do you have anything in your initial contract with the client about liability for damage if they cause it? Maybe you could just add a clause in that paragraph that states not just you, but your employees, assignees, and those contracted to work for you to be covered. That way, if a person gets drunk and breaks his V1, he is covered by your contract but you are not liable. If he drops his camera in the parking lot, it's not your fault either. My attorney charges ~$300 per contract, but it's worth it the first time something happens. Cheap insurance when you're talking the kind of money in equipment that we all are. My .02

September 10th, 2007, 03:18 PM	#14
Martin Pauly Major Player Join Date: Apr 2006 Location: Cedar Rapids, IA Posts: 563	Thanks a lot for all your suggestions. Right now it seems that everything hinges on whether the other videographer working for me with his V1 would constitute a rental of his camera to me. His insurance does not cover this case. However, I wouldn't even be touching his V1, so I don't see how this could be interpreted as a rental (though he believes it does). He is going to talk to his insurance agent to find out for sure if he has coverage for his equipment in this particular case or not. If he does, I think we are in good shape. If he doesn't, you'll see my post in the "Helping Hands" area (but I am hoping that won't be necessary)... - Martin __________________ Martin Pauly