Reopening your ASSOCIATION

05.04.20 03:41 PM

STEPS TO A SAFER COMMUNITY DURING COVID-19

Watch the recorded Panel Discussion with our Ascend Advisors on Reopening Your Association, Steps to a Safer Community During COVID-19. Learn ways to protect your community association members while reopening your community's common elements. Our group of industry experts will equip you with steps to input a protocol for these unprecedented times.

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don johnson

PARADIGM BROADBAND GROUP

Owner


www.pbgsolutions.com

dj@pbgsolutions.com

352.267.7447

jarad pizzuti

SIHLE INSURANCE GROUP

Equity Partner


www.sihle.com

JPizzuti@sihle.com

407.389.8436

KELSEY MCGARY

SERVPRO

Commercial Sales and Marketing Representative


www.ServProSouthwestOrlando.com

kmcgary@servpro10856.com

941.900.6722



pATRICK HOWELL

BEKCER AND POLIAKOFF

Office Managing Shareholder

Board Certified Construction Law and Litigation Attorney


www.beckerlawyers.com

phowell@beckerlawyers.com

407.215.9660



SIHLE INSURANCE GROUP RECOMMENDATIONS

I offer the following as you consider re-opening amenities which should be used in whole or in part in concert with local and state emergency orders.  Please review and I will be available to further discuss:

 

First, there have been no guidelines sent down by the insurance companies relative to proper risk management upon re-opening.  You will find that all policies have an absolute bacteria exclusion but currently most do not have a specific viral or communicable disease exclusion. There are also no specific exclusions should you decide to open your facilities under the circumstances we face.  However, failing to take reasonable precautions can open the door for a lawsuit that results in a claim and potentially more cost for your insurance.

 

It is my experience that just following the rules or even having the owners sign a waiver or disclaimer will not relieve the Association of their responsibility for the safety of the premises and only becomes a measure of your defense and a possible suit deterrent, no more.  While you can and maybe should have a sign in sheet for use of amenities to include a waiver/disclaimer and recognition of conditions, you cannot rely on it to absolve you of liability.  Nor can you rely on simply following the rules of government order to protect you.

 

As we see things begin relax a bit it is appropriate to establish a plan for re-opening of amenities for the use of the owners.  However it is important to phase it in with good management of the facilities in an effort to give the greatest degree of protection to all users.  I would suggest the following minimum protocol as you consider opening of facilities.  You may add or delete as you believe best for your communities:

 

1) Swimming Pool areas:

*Face masks to be worn when not in the water 

*Providing hand wipes and hand sanitizer or requiring users to bring their own

*Consider removing all pool furniture in the short term but allow users to bring their own lawn chairs

*Proper social distancing etiquette of 6’ to be practiced by all users

*Posting the temporary rules and virus warning at all points of access consistent with approved guidelines

*Restrict occupancy to allow proper distancing

*Attendant should be on site to oversee adherence to social distancing

 

2) Exercise/Workout Room:
*Face masks to be worn and each owner will also need to wear protective gloves  to handle the equipment

*Providing hand wipes and hand sanitizer or requiring users to bring their own

*Attendant on site to wipe down equipment after use regardless of users efforts

*Proper social distancing etiquette of 6’ to be practiced by all users

*Posting temporary rules and virus warning at all points of access consistent with approved guidelines

*Restrict occupancy to allow proper distancing

 

3) Tennis Courts, Pickleball Courts, Playgrounds, Bocce Courts and Shuffleboard Courts:

*Face masks to be worn  

*Providing hand wipes and hand sanitizer or requiring users to bring their own

*Consider removing or restricting use of all spectator seating but allow users to bring their own lawn chairs

*Proper social distancing etiquette of 6’ to be practiced by all users and spectators

*Posting temporary rules and virus warning at the courts consistent with approved guidelines

*Restrict participants on each side of the court to the minimum number required to play the game.  All others to stand aside with proper distancing protocol

*Any Association provided equipment shall be wiped down by the user before returning to storage or prior to giving to the next user in line

 

4) Spa/Jacuzzi/Sauna./SteamRoom:

*These facilities should remain closed (preferably) or restricted to one or two at a time. 

 If not closed then:

*Face masks to be worn when not in the water or room

*Providing hand wipes and hand sanitizer or requiring users to bring their own

*Consider removing all area furniture in the short term but allow users to bring their own lawn chairs

*Proper social distancing etiquette of 6’ to be practiced by all users

*Posting temporary rules and virus warning at all points of access consistent with approved guidelines

*Restrict occupancy to allow proper distancing

*Attendant should be on site to oversee adherence to social distancing

 

5) Docks or viewing areas:

*Face masks to be worn  

*Providing hand wipes and hand sanitizer or requiring users to bring their own

*Proper social distancing etiquette of 6’ to be practiced by all users

*Posting temporary rules and virus warning at the courts consistent with approved guidelines

 

6)  Clubhouse or other indoor facilities:

*Face masks to be worn and gloves where appropriate  

*Providing hand wipes and hand sanitizer or requiring users to bring their own

*Where appropriate consider removing or restricting use of all seating but allow users to bring their own chairs

*Proper social distancing etiquette of 6’ to be practiced by all attendees

*No games, meetings, gatherings or events with more than 10 participants and then with proper distancing and wipe down of all surfaces after use.

*Posting temporary rules at the door with the approved guidelines

*Restrict occupancy of the facility to allow for proper social distancing; all others to stand aside (or outside) with proper distancing protocol until space may open up within the facility

 

7) Restaurant, Bar or Concession areas:

* These facilities should remain closed until the Governor authorizes restaurants, bars and other areas where people may gather in social groups to re-open; no exceptions

There is no question that failing reasonable controls and someone gets sick could lend itself to a suit as some people will likely look for any way to file claims against others.  It comes down to a “damned if you do and damned if you don’t” review.  

On the one hand it would be hard for anyone to argue that they were not aware of the virus issue and, in, spite thereof,  chose to use the pool, spa, sport courts, playground or clubhouse.  On the other hand, the association and management is also aware of the same issues, so someone could argue that the association or management didn’t take sufficient steps to insure the safety of the attendees (e.g. Why didn’t you wipe down the access gates and pool furniture more often?).   

To add further importance to controls being implemented, there may be a question of coverage under your general liability.  As mentioned above, virtually all general liability policies have at least an exclusion for Fungi or Bacteria.  A viral infection such as Corona is NOT a bacterial infection (bacterial infections are caused by bacteria, while viral infections are caused by viruses).  The industry has not fully caught up with addition of viral and/or communicable disease exclusions but I anticipate they will be added upon renewal.  One must carefully review their policy to confirm whether specific viral exclusions exist.  You will want to have the agent for each contracted community advise on the viral and communicable disease limitations applicable to that particular community as each liability insurance company’s exclusions and limitations can be different from the next.   

However, to complicate matters even more, the very first exclusion in all liability policies is:

This insurance does not apply to:  

 

  1. Expected Or Intended Injury
    "Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury"

resulting from the use of reasonable force to protect persons or property.

 

The question being whether the presence of the virus and related sickness or death could have been an “expected” condition that the Board/Management was aware of and failed to act upon to the safety of the owners and thus trigger this exclusion.  I find that when faced with the likes of a wrongful death suit for policy limits insurance companies try to find a way out and are running the fastest when you need them the most. General liability coverage can therefore be questionable.


Please take all appropriate steps for the safety of your residents. As noted above, that includes controls for use of pool, exercise facilities, sport courts, meeting rooms and other places where groups of people may gather and risk the spread of any sickness; viral, bacterial or otherwise.

While the insurance companies have no specific exclusions relative to your decisions on re-opening it is expected that the Board will do its best to apply good risk management control to avoid claims.  And lack of action will most certainly invite a suit should the worst occur.

 I hope this helps.  Give me a call to further discuss.