Why In-Service Documentation Is an Excellent Risk Management Tool

In-service documentation may seem like just more admin work for your crews, but it is a powerful form of insurance that can protect your business from serious legal expenses.

Claims arise for every type of business. While good documentation is a common practice for those in snow and ice management, it is also a strong form of risk management against workers’ compensation claims, breach of contract claims, and trip and fall cases.

“We are seeing an increase in trips and falls on properties, for holes or uneven sidewalks, and then they try to bring in every contractor under the sun,” says Josh Ferguson, a partner at Freeman, Mathis & Gary, LLP. “Contractors in the landscape and hardscape industries are going to start seeing that as well.”

How In-Service Documentation Is A Game Changer

Ferguson says there is a direct connection between companies that are sued often and a lack of documentation.

Whether a property manager is suing you for failing to complete your services pursuant to the agreement or a third party tripping and falling on a property, Ferguson says they are more likely to believe and support your position if you have documentation to back it up.

“If you have documentation to support what you’re saying, it is much more significant, important and provable than just saying you did something because then people have to rely on and believe your credibility,” Ferguson says.

When you fail to practice in-service documentation, and a claim arises, everyone involved will say what they need to say to protect themselves.

“I have litigated maybe thousands of claims at this point, and I can’t tell you how many times I’ve had a contractor tell me, ‘Oh no, the property manager is going to say exactly what I’m saying,’” Ferguson says. “And then we get into a deposition, which is that question and answer session under oath, and during that, the property manager says, ‘Oh no, no, no. That’s not what happened. This is what happened.’ and it’s not at all what the contractor thinks happened, but you don’t have documentation to prove it, so it turns into this credibility fight.”

Ferguson says having documentation changes the outcome in almost every case. This could mean a case being dismissed by a judge or a jury ruling in your favor. Providing in-service documentation can also make insurance companies more likely to fight for your case.

“If a company doesn’t have any documentation to prove what they did and how they did it, an insurance company is not going to take the risk, and they may settle out a case, even if you think you did everything right,” Ferguson says.

When an insurance company wants to settle out of court, it can impact your insurance loss runs, which can, in turn, affect your insurance costs and your ability to get insurance coverage.

What You Should Document

When conducting in-service documentation, focus on collecting information related to who, what, when, where and how.

“You want to indicate what employees were on the property, the dates and times they were there, the materials and equipment that they used, and exactly how they perform those services,” Ferguson says. “Photographs are also helpful. We want to include every piece to the puzzle because you don’t know what aspect of the services that were to be performed and were performed could end up being the ‘issue’ that arises.”

Ferguson acknowledges that some may be concerned that if they start documentation, they’ll get in trouble by failing to capture some specific portion of the property.

“Look, anything can be used as both a sword and a shield,” Ferguson says. “But in my opinion, it is much better to take those steps and risk that one in 100 chance that you just didn’t photograph somewhere, or the GPS doesn’t show everything under the sun. More likely than not, the information, whether it’s a photograph or in-event tracking or GPS, is going to probably provide some pieces of information as to what you did and didn’t do, but it also big picture-wise shows that you are trying to, as a business, do things the right way, and it makes it easier to defend to a jury.”

Technology such as GPS tracking in trucks and equipment, fleet cameras, and mobile devices with geofencing can all help with in-service documentation. While GPS tracking is an excellent form of documentation, Ferguson says even old-school pen and paper records kept on file can suffice as proof of service.

“It still has value,” Ferguson says. “I wouldn’t say the same level as using technology that is clearly marked to prove exactly when, where and how everything was done. But it doesn’t mean that old pen and paper is worthless.”

Whether you’re using some form of technology or paper documents, Ferguson recommends you standardize the information collected, as this allows you to highlight how your business does things systematically, and employees are trained in exact policies and procedures.

“Cases are fought partially on the facts, but partially on theming and optics,” Ferguson says. “If we’re able to present that this is a company that’s doing things the right way, everything is formatted. There’s a thought process that has gone into this, and that goes through the standardization of things.”

Ensuring Adoption

To ensure crews are consistent with their in-service documentation, business owners and managers need to have frank conversations with their teams and explain why this practice matters.

“If you can educate your employees that the lack of documentation can lead to lawsuits, can lead to the company paying extra money, and as a result, less profits and ability to pay those employees and give them benefits, that directly impacts them,” Ferguson says.

Ferguson says it is critical to educate your team members to document conversations they have with property managers because they may be told not to do something, and that eventually turns into a lawsuit that costs your company millions of dollars down the road.

“If a property manager tells you not to service a particular portion of the property or not to cut the grass that day, even though you’re supposed to and then two years down the road, you find about a lawsuit because some doctor tripped and fell in a hole, hit his head and can never perform surgery again and is suing for $5 million,” Ferguson says. “It would be really helpful if your employee knew the potential exposures from not documenting and as a result, told you about it, or saved the text or in some way communicated so you had written proof at the time that said, ‘Hey, property owner/property manager, you told us not to service the site this day.’”

Ferguson stresses that you can create the perfect documentation form, but it doesn’t matter if your employees don’t appreciate the value of the practice and how it protects the company and themselves. They also need to understand the importance of logging on-site conversations they have with property managers or HOA presidents when they make requests.

“It’s the offhand conversations that needs to be documented by email, by text, so you can be better protected down the road,” Ferguson says.

Advice for Others

Ferguson says a good rule of thumb for keeping these types of documentation files on hand is seven years. Depending on the claim and the state, the statute of limitations ranges from two to four years, but the litigation process could stretch out to six years before you are asked for documentation.

“Oftentimes in lawsuits – and we could be talking about a slip and fall, a trip and fall, an employee suing, a breach of contract claim – these things arise months and years down the road,” Ferguson says. “So you need to be able to show, as a company, what you did on February 15, 2022, and you may need to show that in March of 2027.”

Aside from conducting in-service documentation, having clear and concise contract language can also help protect your company from exposure to various claims.

“As a landscaper and hardscape company, or really anyone performing services on a site, you do not want to sign monitoring and inspection provisions,” Ferguson says. “If a contract says that you have some type of duty to monitor and inspect and report on site defects, you as a company can be brought into almost any lawsuit.”

Ferguson says the best thing you can own is a red pen and have general counsel review your contracts to remove unfair language in the agreement. He says it is rare for clients to reject these changes wholeheartedly and even when they do, you are at least better informed so you can make a risk management decision whether it’s still worthwhile to work with that customer.