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Multiple liabilities lurk for those using cranes on construction projects

Mary Reid and Tim Walsh

HOUSTON — On par with a construction crane’s towering multifunctional capabilities are the multiple ways in which a firm could be liable for mishaps if the complicated risk scenario is not tackled, sometimes even before the equipment shows up on site, according to panelists at the 38th annual International Risk Management Institute Inc. Construction Risk Conference in Houston on Wednesday.

Crane exposure creates a potentially complex claim and risk situation, triggering several different insurance coverages and a multitude of questions to ask, panelists told attendees in a presentation peppered with photos of tipped-over and damaged cranes, and brick buildings that bore the brunt of several tons of materials dangling from a massive hook.

“I am always thinking of the cat exposures,” said Tim Walsh, Detroit-based director of the design and construction practice for Oswald Cos., a Cleveland-based brokerage and risk management firm. “There are probably six major calamities that can happen on a construction site … (but) there is very little written on crane exposure,” he said

There’s even some confusion as to what is classified as a crane, he added.

Mary Reid, Cleveland-based general counsel with Donley’s Inc., a construction company specializing in construction management, restoration and other projects, read the definition provided by the U.S. Occupational Safety and Health Administration.

On its website, OSHA says a crane is “a machine for lifting and lowering a load and moving it horizontally, with the hoisting mechanism an integral part of the machine. Cranes whether fixed or mobile are driven manually or by power.”

One audience member asked if an excavator — another common and massive piece of equipment on construction sites — be considered a crane by definition. Ms. Reid’s response, summed up: Possibly, given a variety of factors one needs to verify.

Mr. Walsh narrowed the list down to four that the presentation would cover: those that are mobile, usually on wheels; those that operate on multiple kinds of terrain, often rugged; crawler cranes with lattice “booms” that move heavy loads; and tower cranes, the sort often seen alongside skyscrapers.

More lengthy is the list of exposures: everything from property damage, including damages to the actual project, neighboring buildings or the object being hoisted, to injuries, from the workers on the ground and on the crane to bystanders living and/or working nearby, according to the presenters.

“When we get into crane risk, it can get complicated because there are a lot of parties (involved),” said Mr. Walsh, citing a long list that included the equipment owners, the civil engineers, the operators, subcontractors, signalers and riggers. “They can all be (of) different legal parties on a crane.”

In the event of a mishap, “is everybody going to get sued? Yes,” said Ms. Reid, in the midst of a technical presentation on what can go wrong and how to mitigate.

Key are the contracts and insurance obligations, many of which are mandated by law, according to Ms. Reid. For example, embedded in equipment lease contracts are stipulations that the equipment come with an operating crew.

Workers compensation, for example, would fall in the hands of the contractor leasing the vehicle if it is explicitly stated that the worker is a “loaned servant,” which means the contractor “assumes supervision and control of the worker.”

Ms. Reid stressed the importance of contract review and regular upkeep of the contracts and insurance requirements. Equipment manuals are also subject to comprehensive review, she said, relaying the story of examining one crane manual and seeing the manufacturer’s release of liability on the front page, which included a stipulation that the manual must be considered in its full and original form — which happened to have originally been in French.

“The exclusions are where it gets really interesting,” said Mr. Walsh, citing a long list of what is typically excluded from general liability and other policies, from the crane going airborne to provisions that state the insurer does not have to pay damages if the equipment was not mounted or used properly.

Ms. Reid told attendees to constantly review policies and maintain consistency; if there is a change in the work order, address it in documents, including rental agreements and insurance. “Make sure you are insuring what you are taking responsibility for,” she said.