What is a Hold Harmless Agreement?
A Hold Harmless Agreement is a contract or clause found in a contract that shifts liability for loss from one party to another.
Use of Your Church by Outside Groups
Churches often permit outside groups to use their facilities. Sometimes the arrangement is informal, but often long-term use agreements are completed, particularly if any part of the premises is leased to an outside group. Use-of-Premises Agreements and leases are contracts.
Your church organization’s business-related contracts often require provisions regarding responsibility for insurance and restoration or indemnification of one party by the other following some stated contingency or loss. Contracts for services, major purchases, and particularly leases and construction contracts frequently contain such provisions, which outline obligations for responding to accidental loss that results in bodily injury or property damage to a third party. One or both parties may be responsible for indemnification of the other under certain contingencies, such as legal liability due to one’s negligence. This risk management technique of shifting the risk responsibility from one party to another is referred to as Contractual or Non-insurance Risk Transfer. The applicable clause may be referred to as an indemnification provision or “Hold Harmless Agreement.” Sometimes the contract provisions refer to “Risk of Loss” or the “Limitation of Liability” of the parties.
What are the Insurance Implications?
When done effectively, such agreements are equitable and transfer the responsibility for risk consistent with the ability of each contracting party to control or insure against such risk. A church organization should ask two questions before signing such legally binding contracts:
- Exactly what liabilities are being assumed, and
- How will this affect our insurance coverage?
A separate insurance clause will usually apply independently of the indemnity provision in a contract. This assures that the insurance requirement will survive, even if the indemnity clause is legally flawed or inapplicable.
Risk Management Recommendation
You should seek to accept no more risk than you can reasonably retain or insure. The balance of the risk should be transferred to the other party or the risk should be avoided, if possible. However, keep in mind that some risks may be unavoidable and some liabilities are not insurable. Professional guidance may be needed to ensure that the church is not accepting any unreasonable liabilities or loss exposures. State laws govern the validity of such agreements and may limit or negate indemnity clause use in some cases.
An attorney can recommend acceptable contract provisions or revisions and the UCCIB or your insurance agent can assist you with your insurance concerns.
Protect Your Organization
To support or supplement the church’s ministries and advance community interests, many organizations donate or lease all or part of their facility for use by independent groups and community organizations. Use of your facility for activities that are not controlled or directed by the church creates additional risk management concerns. However, using a Lease Agreement or other use-of-premises agreement form that contains effective indemnification and insurance provisions will allow you to advance the ministry while protecting your organization from unnecessary risk.
The UCCIB can provide some sample agreements, which after review by the church’s local legal counsel, may be incorporated into a lease or use-of-premises agreement.
Proof of Insurance
In leases, the contract should clearly state the insurance obligation. Usually the landlord has the obligation to purchase property insurance on the building. The obligation might also extend to any improvements made by either party. It is desirable for the tenants to insure their own business equipment and personal property. In most cases, the tenant is obligated to purchase liability insurance for their own activities and operations. You should always require proof of insurance from outside groups using your premises, even those using your facility without charge.
When hiring a contractor, it is appropriate to require evidence of insurance. This could mean a “Certificate of Insurance,” insurance company endorsement, a complete policy copy, or some combination. In some cases, it may be important to be added as an “Additional Insured” on a contractor’s policy, with a notice of cancellation provision, obligating the carrier to inform you if the policy is terminated. Others might request this if you are renting a facility and the owner wants protection under the church’s policy. Likewise, you might seek similar protection on the policy of an entity using your facility.
With professional services contracts, seek evidence of professional liability coverage, in addition to general liability. It is not desirable to be included as an additional insured on the liability coverage of one serving you personally, because in most cases, to recover damages under another’s liability coverage, you cannot be an insured on the same policy. However, if you desire to be an indemnitee on the policy of someone using your facility, you may wish to be an additional insured, besides having an indemnity agreement in the contract.
How Much Coverage Do We Need?
In most cases, the church should require insurance equal to the replacement cost of the property, including liability limits of at least $1 million or the replacement cost of the property, whichever is greater. Consult your attorney and insurance agent for guidance. We have seen churches burned to the ground due to negligence of both tenants and contractors that were working at the church.
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