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  • 06/01/2019 4:25 PM | CAI Rocky Mountain Chapter (Administrator)

    By Tressa Bishop, MBA, CIC, CB Insurance

    Let’s face it, no one really “likes” insurance.  Well, that is except those of us who consider ourselves insurance nerds and will take any opportunity to discuss the ins and outs of policies, exclusions, claims, etc., much to the chagrin of our audience, at times.  Insurance is a necessary evil.  Your association’s governing documents require it, lenders require it, and our state statutes require it.  Unfortunately, there is no getting away from having it.  The worst possible case scenario is you have purchased insurance for your association, paid what you feel is way too much for it, and, come claim time, the carrier doesn’t end up paying what you expected them to pay.  

    The old saying “A little knowledge is a dangerous thing” does not necessarily apply to insurance from the layman’s perspective.  While you’re not expected to become an insurance agent, you are expected to gather enough knowledge, with your agent’s expertise and guidance, to ensure your association’s assets are properly protected in case of loss.  Sticking your head in the sand and hoping everything is hunky dory is not a plan.  Developing an insurance process and understanding the common exclusions and limitations within many policies can help along the way.

    When to Start – Well before your association’s policy expiration date (preferably shortly after renewal or mid-term).

    What to Do – Review the governing documents for any information relating to Insurance.  This includes the types of policies required, what coverages within those policies the Association is required to carry, deductibles (amounts allowed and who is responsible for payment/reimbursement at the time of loss), and owner insurance requirements. 

    Next, take out (or pull up on the computer, if you love trees) the association’s insurance policies (the actual contractual policies, not policies and procedures) and organize a document as a sort of a cheat sheet. 

    Basic Information to Gather – List the policy type (Property, General Liability, Association Professional Liability/Directors & Officers Liability, Fidelity and Crime, Cyber Liability, Workers’ Compensation, Umbrella/Excess Liability, Flood, etc.), carrier name, policy effective dates (start and end dates – yes, they are the same day of the month, one year apart), policy number, policy limits, policy deductibles (or retention amounts), and claims reporting information.  For example:

    Property:  Carrier: Travelers Insurance Company

    Effective Dates:  04/01/2019 – 04/01/2020

    Policy Number:  xxx-xxxx-xxxxx

    Policy Limit:  $32,705,000

    Deductibles:  $10,000 All Peril, 5% Wind/Hail

    Claims Reporting:  XYZ Agency, John Davis, 555-555-5555

    Check the requirements of the governing documents for insurance against the policies to ensure there are no gaps.  Also, check that the policies also comply with CCIOA (C.R.S. § 38.33.3-313).  An insurance agent that specializes in HOA insurance should be doing this for you at each renewal and can assist here, if needed.  

    Although you aren’t expected to be an insurance agent and should be utilizing an agent who specializes in community association insurance, there are common exclusions and limitations in most policies that you should be aware of.  These can lead to big headaches, and potential assessments, after a loss (note: this list is not all-inclusive, and you should consult with the association’s insurance agent for details on your association’s specific policies).

    Common Exclusions or Limitations in Many Insurance Policies: 

    Ordinance or Law - Coverage available by endorsement when a community has building ordinances that state when a building is damaged to a specific extent (typically more than 50%), it must be completely demolished and rebuilt in accordance with current building codes rather than repaired.  There is very little automatic Ordinance and Law coverage in most property policies.  Most governing documents require Ordinance and Law coverage, as well as FHA and many other lenders.

    Coverage A - Loss to Undamaged Portion of the Building

    In some jurisdictions, ordinance or law requires that a building that is partially damaged be demolished (in other words, it becomes a total loss).  Coverage A states that if such an ordinance is in place and is enforced by local authorities, the insurance policy will treat the claim as a total loss even though the building was only partially damaged.

    Coverage B – Increase Demolition Cost

    This pays the increased cost to demolish and clear the site of the undamaged parts of the building.

    Coverage C – Increased Cost of Construction

    This pays to repair or reconstruct damaged portions of the building and bring them up to current code.  It also covers the cost to reconstruct or remodel undamaged portions of that building, regardless of whether demolition is required.

    Limit Guidelines:

    Coverage A should be included up to the Building limit.  Some policies will show the dollar amount, but many will show “Included” as the limit for this coverage.

    Coverage B – 10% to 20% of the Building limit (general range, age of building, number of stories, etc. should be taken into consideration when setting this limit).

    Coverage C – 10% to 20% of the Building limit (general range, age of building, number of units per building, number of stories, etc. should be taken into consideration when setting this limit).

    Debris Removal - This is the amount the carrier will pay following a covered loss to remove the damaged property from the site.  Common amount included in most policies is 25% of covered loss plus a small amount ($10,000 or $25,000). Since the percentage amount is included within the building limit, if there is a total loss, there may only be the additional small amount since the building limit would be used up replacing the building.  An additional amount should be added to the policy in case of a large or total loss to the community.

    Sewer/Drain Backup – This coverage is for the resulting damage to covered property from a water or sewer backup event, including sump pump failure.  Many policies include a small amount of coverage, usually $25,000 or less. Depending upon the type of interior unit coverage on the policy (All Inclusive or Original Construction, for example – usually driven by the governing documents), this limit may not be adequate.

    Limit Guidelines: $50,000-$100,000 per occurrence. Higher limits should be considered depending upon the number of units per building that may be affected in one loss situation, as well as the type of interior unit coverage the policy has.

    Flood – Excluded in most property policies, this coverage may be required by lenders based on the association’s location.  When it is not required, an association may want to consider adding coverage since it covers water damage to covered property that does not originate on association property.  This includes surface water, mudflow, and water under the ground surface.

    Limit Guidelines: When required by lenders, the coverage limit should match the limit on Property policy.  When not required, it is usually purchased through the property carrier.  They will usually determine how much they are willing to offer (typical amounts are $1,000,000 to $5,000,000).

    Earthquake – This coverage is used to provide protection for loss due to earth movement including earthquake shocks and volcanic eruption.  It is available by endorsement or as a monoline separate policy.  Note that is does not cover subsidence or earth movement.

    Limit Guidelines: When purchased through the property carrier, they will usually determine how much they are willing to offer (typical amounts are $1,000,000 to $5,000,000).

    Equipment/Mechanical Breakdown – This coverage is for loss caused by mechanical or electrical equipment breakdown, including damage to the equipment, damage to the other property of the insured, and damage to the property of others as specified in the policy form.

    Many only think of this coverage for associations that have elevators, pools, or boilers, but the coverage includes damage due to electrical arcing, which is an exclusion on most property policies.

    Limit Guidelines: Coverage limit should match the limit on Property policy, including the Business Income limit and Business Personal Property.  It is often shown as “Included” when purchasing the coverage from the Property carrier.

    The only time people really care about insurance is when they have to write a check for the premium and when they have to file a claim after a loss occurs. To make the claims process as smooth as possible from the start, be sure you are aware of the duties required under each policy.  

    Compliance with Policy Duties and Terms:

    Each policy has a list of duties that the insured agrees to perform.  Not performing these duties can have serious repercussions on any future claim.  Some of the most common duties are:

    • Prompt reporting of claims to the insurance company
    • Cooperation with the investigation of the claim and reasonable requests from the insurer
    • Allowing the insurer to inspect damaged and undamaged property
    • Examination of books and records
    • Submission of Proof of Loss (usually required within a specific timeline from the date requested by the insurer)
    • Examination under oath

    Policy Timelines:

    • Filing a claim: often these involve a specific timeline to report a claim or require that claims are reported within a “reasonable time”
    • Proof of Loss: many policies require this within 60 days from the date requested by the insurer
    • Legal action deadline: Can vary for each policy

    By preparing beforehand and documenting the policy requirements for reporting claims, you can save time and possibly future headaches.  Consult with your association’s insurance agent while setting up your insurance process.

    Acknowledgements: Peter O’Brien – Solutia Consultants, Jonah Hunt – Orten Cavanagh & Holmes, LLC

    The information in this article does not constitute insurance guidance for any specific association. The terms, conditions, exclusions, and endorsements of policies will apply. Every policy and every claim is different. 

  • 06/01/2019 4:23 PM | CAI Rocky Mountain Chapter (Administrator)

    By Ella Washington, Ella Washington Agency, Inc.

    Homeowner association boards face a lot of decisions when it comes to finances. Those decisions involve the responsibility of trying to keep their association within a reasonable budget. 

    With increased costs of doing business, common interest communities are seeking ways to save money. Having volunteers within their community is becoming more common. Often volunteers will perform services that the HOA would otherwise hire contractors for. Examples of volunteer acts within a community are: pulling weeds, removing snow, or planting a tree. Although volunteers in our homeowner association communities are an incredible asset, it can come with a severe price. Trying to save a little on labor costs can end up costing a community in the long run. Injuries to volunteers don’t happen often, but when they do, they can be extremely costly to an association. According to CAIS*, below are recent claims from a National Workers Compensation program built specifically for common interest developments:

    1. President volunteered to maintain light bulbs in a common area and fell from a 14-foot ladder - $65,000 paid claim. 

    2. Volunteer assisting in clubhouse renovation injured his back removing the old stove - $20,000 paid claim.

    3. Volunteer fell while picking up trash in the community - $16,000 paid claim.

    It is a common misconception amongst board members and association managers to think these kind of injuries are covered under the HOA’s General Liability (GL) policy. CAIS* explains that “unfortunately a General Liability policy has specific exclusions for bodily injury to an ‘employee’ because by design, employee injuries are covered under a workers compensation policy. While some minor injuries to volunteers have been paid through the GL policy under ‘guest medical coverage”, it doesn’t take much imagination to see where a GL carrier would use the ‘employee’ exclusion to decline a more serious injury to a volunteer.”

    Having volunteers in an HOA is not the only risk associations face. In 2007, a California Court of Appeals case: Heiman v. Workers Compensation Appeal Board, shed light on the potential liability that associations and their managers face when contracting for on-site service and repair. Below are the case details:

    Pegasus Management (Heiman), the manager for the Montana Villas Homeowners Association, hired the Hruby Company on behalf of the association to install rain gutters on the association’s common areas. An employee of Hruby was electrocuted and seriously injured on the job. Hruby was uninsured so the injured worker’s case was referred to the CA Workers Compensation Appeals Board (WCAB). The absence of a policy to provide benefits for the injured worker left the Workers Compensation Appeals Board assigning payment obligation to the Management Company (Heiman). Heiman took the ruling to court and the disposition from the CA Court of Appeals is outlined below:

    DISPOSITION FROM COURT REPORT

    ‘Heiman v. CA Workers’ compensation Appeals Board (2007) 149 Cal.app.4th 724

    “Hruby and Pegasus were dual employers of Aguilera that are jointly and serially liable for workers’ compensation under the Labor Code. Pegasus was also the agent of the Association, which was a separate legal entity that is liable for workers’ compensation as the principal. Pegasus and the Association were not owners or exempt employers under sections 3351(d) and 3352(h). The WCAB’s decision awards Aguilera workers’ compensation to be paid solely by the Pegasus. We reject that limited conclusion and hold that Hruby is jointly and severely liable with Pegasus and the Association is also liable as Pegasus’ principal. To the extent that WCAB’s decision is inconsistent with our conclusion, it is annulled. The award will otherwise be affirmed.”

    An important fact to consider, if the association carried its own workers compensation policy, it’s likely that the Workers Comp Board would have assigned the benefits of that policy to Aguilera and the case would have most likely been settled. 

    A traditional workers compensation policy is meant to cover employees who are injured on the job. By definition a “volunteer” is a person who provides services without the expectation of compensation of any kind. Most carriers do not offer coverage for organizations without direct employees. The carriers that do offer the “if any” coverage (meaning no direct employees) typically will not offer coverage for volunteers. Ideally, associations really need to protect themselves from both “if any” and “volunteers” under one simple workers compensation policy.

    So how does an HOA protect themselves from such risks? Until recently, there were not many options of a workers’ compensation policy for HOA communities that didn’t hire ‘direct employees’. CAIS* is a carrier that has designed such a policy. CAIS* mentions “it was truly a case of the insurance industry not understanding the niche and the risk associated with the class of business”. The program CAIS* offers was the first of its kind to offer both “if any” and “coverage for volunteers” on a national basis. Local insurance agents offer this “Volunteer” Workers Compensation policy with premiums usually ranging from $350-$400 per year.

    As an asset protection professional, it is my recommendation that every common interest community purchase this policy whether or not the CC&Rs require them. Any association that hires contractors for on-site repairs, or work within the community, or has any volunteers should consider this policy. This risk far outweighs the premiums. After all, the trip to an emergency room will well exceed the annual premium of this type of policy.

    *CAIS, LLC. helped co-write the information inthis article. For more information 

    Ella is a 23 year veteran in the HOA Insurance industry. Her agency has access to over 35 insurance carriers. Ella’s agency was established in 1996. Being an advocate to her HOA Board Members and Managers is always her top priority and is the foundation of her success. The Ella Washington Agency is a national agency insuring HOAs in 19 states.

  • 06/01/2019 4:21 PM | CAI Rocky Mountain Chapter (Administrator)

    By Editorial Committee, CAI Rocky Mountain Chapter

    Finding a business partner who will perform quality work at a reasonable price can be a daunting task.  Taking care to properly vet your community association’s business partners (and potential business partners) can help avoid problems down the road.  You should rely, at least to some extent on information and feedback from your community association manager (their relationships and opinions in the industry matter!).  But what else should you be doing to protect yourself and your association?  Aside from checking with the Better Business Bureau and licensing boards in Colorado, the following will provide a checklist of things your Board should be doing and considering when vetting business partners.  These can help alert you to unscrupulous, inexperienced or financially troubled vendors who may deliver broken promises rather than professional results.

    1. Review your association’s governing documents.  Your documents may have provisions which require business partners to possess certain levels of insurance (make sure their policies do!) and might also provide for other limitations on contract terms.
    2. Beware of low bids.  Price is absolutely an important consideration when selecting a vendor, but don’t let a low price or a special deal blind you to a potential problem.  A bid far lower than others may indicate that the vendor is not experienced enough to know the actual cost of the job or he/she never intends to finish the work.  Disreputable vendors may bid low to secure a contract and then tack on extra work as the scope of work progresses.
    3. Confirm insurance.  Make sure that the business partner will identity the association (and its management company) as additional insured on the business partner’s insurance policies.  Confirm that there are no exclusions in the business partner’s insurance which may prevent the policy from covering damage, claims, injuries or liabilities arising from the business partner’s performance under the contract.
    4. Take your time.  If you are pressured during the bidding process by tactics such as “limited time offers,” look for a different business partner.  Hiring a business partner is not a split-second decision; in fact, hopefully it is the start of a long and beneficial relationship with your association.  Review multiple bids and really understand all that is included in the scope of work requested by your Board and the costs/timelines to perform same.
    5. Call references.  Asking for business partner references and then never reaching out to speak to them is NOT due diligence.  Make sure that you are reviewing the bids, references, AND reaching out to the references to discuss experiences with the business partners.
    6. Have legal counsel review the bid and proposed contract.  Occasionally, community associations will forego this legal review because it is believed that the goods and/or services to be provided are nominal and do not justify the cost of legal review.  The legal review, among other things, is important in order to help your Board understand a contract’s proposed indemnification provisions.

    Taking these steps may not prevent future problems, but they can certainly help to minimize problems that could arise because of failure to perform basic due diligence when selecting business partners to perform work for your association!

  • 06/01/2019 4:18 PM | CAI Rocky Mountain Chapter (Administrator)

    By Clinton Dorris, (L2M) Large Loss Management, LLC

    We all know that most, if not all, insurance policies for wind and hail are going to a percentage based deductible accompanying more denials of coverage for Colorado. But did you realize that natural disaster costs doubled from $188 billion in 2016 to $306 billion in 2017 and continued to exceed the prior 10-year average at $155 billion for 2018[1]? Changes to our industry are here. So, what does this mean to you and why should you (the HOA/owner/management company) care? In short, the insurance carriers stand to “lose” billions of dollars paying for claims well above those estimated/anticipated by their actuary tables for 2016, 2017, and 2018. This translates into a significant catalyst for insurance carriers needing to save money and raise rates. Higher deductibles and more complicated claims and construction processes are just the beginning. It is becoming commonplace for carriers to enforce the policy’s statute of limitations for filing a claim and necessitating more detailed proof of loss while placing higher standards on the documentation required to recapture the recoverable depreciation. If you’re saying to yourself, “this is the way it’s always been,” you aren’t recognizing the half-trillion-dollar loss mentioned above. Additionally, carriers are increasingly more focused on identifying fraud or conflicts of interest, especially in large claims. As an example, if funds from a contractor are paid to the HOA or the management company, it may be considered a deductible buyback, or fraud, and could provide the carrier the leverage to deny coverage or sue all involved[2]. The same influencers affecting premiums and claims also necessitate a new strategy to adequately compensate the HOA management company and community managers for their work conducting assessments and other incurred costs beyond their standard duties. Don’t worry, there is an emerging carrier recognized method of getting those additional expenses paid, but not in the manner that some management companies and contractors have gone about it in the past. 

    Given the increase in carrier scrutiny, now is the time to make sure HOA boards and management companies are reducing their risk on large claims by recognizing a few things. 

    1.What worked yesterday for general contractors, HOA managers, HOA boards,and tradesman, won’t necessarily work tomorrow.•Given the size of carrier losses across the country, the claims environmentis changing significantly and swiftly.2.HOA boards and management companies accepting funds of any kind from contractors isnever a good idea.•If you wouldn’t want to read about it in the Denver Post, don’t do it.3.Not filing a claim because of a high deductible is a bad strategy and works in the carrier'sfavor. It also doesn’t prevent a premium increase.•Premiums are adjusted by the increase in claims based on a specific region, notbased on an individual property’s claim history. In other words, a property’s ratescan go up even if they don’t file a claim.•There are multiple strategies to address high deductibles.•If you have damage and don’t file, you put your property in a pre-existing conditionscenario, setting up an opportunity for a future denial.•Carriers have a statute of limitations on filing a claims which they are now standing behind.4.A changing industry environment requires new perspectives and professionals that canmanage both the claim and the construction.•Management companies are experts at managing HOAs and conducting assessments, rarely are they experts at insurance claims and large construction.•Roofing companies are experts at roofing, rarely are they experts at identifying allthe damage, at negotiating with the carrier, or at construction management. If theyare the roofer and the “general contractor” on the same project, then they are conflicted by self-dealing.5.Whomever you hire to manage the entire project should have a documented process that can withstand an audit.•If they can’t produce a final documented deliverable with a third-party financialaudit, you should reconsider. A deliverable as stated is your greatest asset iflawyers happen to get involved later.•Insurance proceeds should not be commingled with other HOA funds and should be held in an escrow account that requires a dual signature for release (ownerand project manager signature).•Most significant issues with large loss claims revolve around the management ofthe funds. 6.Utilize trades that have been vetted. •Trades should be picked based on their relevant experience along with a currentunderstanding of their debt at the supply vendors, their reputation in thecommunity, if their subcontractors are being paid, and if there is pendinglitigation that they are involved in.•There is never a need to collect multiple bids from contractors on insurance-related work. If you save funds by picking the lowest bidder, the residual funds belong to the carrier, not the owner, unless that was agreed upon in a settlement.

    The insurance carrier industry is making significant and swift adjustments to their process and procedures. Are you taking note? What are you doing to evolve with the changes? 

    Clinton Dorris has leveraged his two engineering degrees to manage billion-dollar programs for better than 20 years and is a managing director for (L2M) Large Loss Management, LLC. 

    Please visit www.4L2M.com for more information or call to schedule a CE credit discussion on this topic and others. 

    [1]Swiss Re https://www.swissre.com/media/news-releases/nr_20181218_sigma_estimates_for_2018.html 

    [2] Colorado State of https://leg.colorado.gov/sites/default/files/images/olls/2012a_sl_267.pdf 

  • 06/01/2019 4:13 PM | CAI Rocky Mountain Chapter (Administrator)

    By Alyssa E. Chirlin, Smith Jadin Johnson, PLLC

    Hail season in Colorado is underway and if recent trends continue, there will be a significant amount of large hail again this year. In 2018, while the total number of severe hail reports was consistent with past years, the percentage of such reports with hail measuring more than 2” in diameter grew substantially. Larger hail means more extensive property damage, both in prevalence and in severity, and insurance companies will want to minimize payments on these increased claims.

    One area where insurance companies limit coverage is in denying their obligation to match the replacement of storm-damaged materials to existing materials. When a storm damages only a portion of a building’s exterior and matching material is unavailable, insurance companies may propose a repair with cosmetically inconsistent materials, creating a mismatch with the undamaged exterior. With aesthetics a high priority in many community associations, it is important to know whether a policyholder is entitled to repairs that preserve a building’s uniform appearance and, inextricably, its market value.

    Some states have passed legislation requiring insurance companies to reasonably match existing exteriors and even to replace undamaged property when necessary to maintain a structure’s uniform appearance. And some insurance companies specifically offer ancillary coverage to avoid a material mismatch. This option, often called matching siding insurance, reimburses a policyholder for the costs of replacing undamaged siding in order to preserve an insured building’s uniform exterior. But even in states without matching legislation, and in policies without explicit matching coverage, courts are finding matching requirements in common homeowner policy language. The Supreme Court of Minnesota recently ruled that policy language that requires repairs of a “comparable material and quality” in fact requires materials of a “reasonable color match.” 

    Colorado has no statute or definitive case law regarding an insurance company’s obligation to match repairs to existing materials, although there is persuasive authority that Colorado will follow the same rationale applied in Minnesota. In 2017, the district court in Hamlet Condominium Association v. American Family Mutual Insurance Co. found that an insurance policy that promised repairs “of comparable material and quality” must cover the cost of obtaining reasonable matching. The court further required the insurance company to pay for “skim-coating” to the undamaged exteriors in order to avoid visible repair patches.

    In keeping with this finding and with other jurisdictions’ recent decisions, the common policy phrases “comparable material and quality” and the similar “materials of like kind and quality” likely do not demand an exact color match, and may not cover matching for weathered or faded materials, but they probably do at least require replacement materials to reasonably match the color of existing materials. And when damaged materials are no longer manufactured and there is no available reasonable color match, these phrases may further require the replacement of even undamaged materials in order to ensure a building’s uniform appearance.

    A cosmetic mismatch among siding or roofing is a “direct, demonstrable, and physical alteration” that can affect a property’s value and consequently the property as a whole can be considered to have sustained a “direct physical loss” when there is no reasonable match to the existing materials. This would trigger coverage under many homeowners policies and allow for the replacement of the entire exterior, even if only a portion of the property has sustained actual, physical damage.

    In Colorado, a policyholder’s best claim to trigger this coverage is to gather evidence that, without matching materials, a repair would not result in a reasonably comparable appearance and the mismatch would leave the policyholder in a worse position than before the damage. Expert evidence that a patch repair could not possibly match can be very effective in persuading an insurance company to cover matching.

    Ultimately, coverage depends on an individual policy’s specific language. So with hail season here and the potential for property damage high, it is crucial to be prepared and informed about your property insurance. Read your policy, ask questions, and make sure that you are comfortable with the coverage your policy provides and that you are familiar with its exclusions.

    And if you do suffer property damage, know that you may not have to settle for repairs that create aesthetic abnormalities. If you have any questions about the coverage that your policy affords, consult an attorney today.

    ______________________________________________________________________________

    Alyssa E. Chirlin is an attorney at Smith Jadin Johnson, PLLC, a law firm specializing in the representation of HOAs in insurance claim disputes as well as general community association law. If you have insurance coverage questions, please call her at 720-550-7280. 

  • 06/01/2019 4:09 PM | CAI Rocky Mountain Chapter (Administrator)

    By Joel W. Meskin, McGowan Program Administrators 

    Community associations are creatures of budget. The primary purpose of a budget is to provide certainty and avoid surprises as the board complies with its obligation to protect, preserve, and enhance the association assets.  

    More often than not, board members primarily focus on “price” when purchasing insurance. However, “price” is only relevant if the options presented substantially provide the same coverage - apples for apples; or there are never any claims. 

    Caveat:  Remember not all insurance is created equal!  

    The reality is most boards never make the ultimate insurance decision, because they defer this task to the CAM.  Not only do they defer to the CAM for insurance decisions, they do not meet in person with the community association insurance professional.   It is one thing to defer the insurance leg work to the CAM, however, it is another thing for the CAM to make the insurance purchase and maintenance decisions on their own. In my humble opinion, focusing primarily on the point of sale premium should be the last decision.  The key obligation is to determine whether the insurance proposal is proper coverage to protect, preserve, and enhance the association assets.  

    CAUTION: BOARD MEMBERS BEWARE

    More often than not, the management agreement with the Association requires that the association unilaterally indemnify the Management Company and the CAM for claims arising out of services provided.

    The board is obligated to protect, preserve, and enhance the association assets. Primarily focusing on price in the insurance decision process is counterintuitive to this duty. Where in the governing documents does it provide that the board has a duty to save the association money when purchasing insurance? Nowhere! Rather, the duty is to determine what insurance will best protect the association assets.

    Boards are authorized to seek counsel from professionals when an issue is beyond the knowledge of the average board member. Insurance is one of those issues. Moreover, why wouldn’t a board always seek counsel from a community association professional?  Why not obtain counsel from a community association insurance professional who does not charge?   

    The “cost of insurance” is not the same as the “point of sale premium.”  The “cost of insurance” is the total amount the association incurs at the time of a loss or claim plus the value of peace of mind that the association receives during the claims process. If the board made sure they purchased the best coverage for the association, the cost of insurance will have been a good deal. However, if the focus was the point of sale price as opposed to coverage, there is a very possible reality that the cost of insurance could be significantly higher than the price, because the association will be self-insured for the coverage that was sacrificed for the cheaper price.

    Caveat: More important for associations than “point of sale insurance premiums” is not being surprised by uncovered claims!

    CAUTION: CAMs BEWARE! 

    Many management agreements expressly provide that the CAMs assume the task of purchasing and maintaining the association’s insurance program. In other situations, many management companies take on this role voluntarily and may involve preferred insurance business partners in the process.

    This practice in and of itself is not necessarily a problem. However, there are a number of traps for the unwary, including who is ultimately responsible for any errors in the purchase and maintenance of insurance. The key individuals that should be most concerned here are management company “owner” and Boards.

    1.  Indemnification 

    Most management agreements have an indemnity provision that provides that if the CAM is sued for something it did for or on behalf of the association, the insured needs to provide the CAM defense and indemnity. Accordingly, the managed association must be able to fund that obligation. Many CAMs and Boards “assume” that this can be funded by the association’s Directors and Officers policy where the CAM is almost certain to be added as an additional insured, or are included in the policy definition of insured. As a result, the funding of the obligation owed the CAM is by the association’s assets, special assessments, or a loan. 

    It is also important that the Management Company or CAM understand the indemnity provisions of your state. Not all states will allow indemnification for someone’s active negligence, and if they do allow indemnity for active negligence, that provision must be expressly set forth in the agreement, and in some states follow a certain formula.

    2.  Community Association D&O Policy 

    Most Boards, Management Companies, and CAMs “assume” that since the management company was working on behalf of the association, and since it is an additional insured on the D&O policy, that the CAM will be covered and that is how the insurance claim against the CAM, for whom the association agreed to provide defense and indemnity will be funded.

    Unfortunately, virtually every D&O policy on the market “excludes” coverage for claims by the association against the management company or CAM. Even worse is that there are some D&O policies where the management company or CAM is not even covered under a policy.

    3. Management Company/CAM Professional Liability Insurance

    Virtually all CAM Professional Liability Insurance “expressly excludes” any claims arising out of insurance claims. This should make sense, because a professional liability policy is intended to cover the professional from its industry professional services. CAMs are not licensed insurance professionals.

    4.  Conflict of Interest

    Some management companies or CAMs have their own preferred insurance professional who in turn has its own preferred insurance carrier. There are also some where the insurance is a division, affiliate, or subsidiary of a management company. These may in fact provide the best products to protect the association’s assets. However, there are two key requirements. First, any such relationships must be expressly disclosed to the association board. Second, under this scenario, the management company or CAM must still conduct its due diligence as to the best available coverage, and not just the best price. 

    5. Business Good Will

    There are “Good Will” issues that can arise from insurance issues. First, very often the management agreement has a unilateral indemnity agreement flowing from the association to the management company or CAM. Theoretically, if the CAM does not purchase and maintain the appropriate coverage, it is still protected, because the association must defend and indemnity the management company or CAM. Who will tell the board that the management company is being sued, but they have to defend them? If the management company is not concerned about losing the client, there is no problem. Does the management company and CAM have an obligation to disclose this to the association before the agreement is entered?

    Second, what will the neighbor associations or other associations think when they hear about this?  What will the impact be on the association property values?

    6.  Management Company CEOs Beware

    One of the biggest mysteries I have encountered in my years in this industry is why there are management company CEOs, executives, and owners who do not make it one of the highest priorities to make sure the association’s insurance program is the best.  Management companies spend so much time making sure they are additional insureds on the association insurance policies, but they do not make sure the association’s policy is the best.  The management company and the CAM’s coverage is only as good as the associations.

    TAKE AWAYS

    • Community Association Insurance Professionals do not charge to meet, counsel, or present to your Board.  Make the Insurance Professional’s E&O on the line, not the Management Company or CAM.  The Insurance Professional, not the CAM, is the licensed insurance expert.
    • Boards should exploit community association insurance professionals for two reasons.  First, boards owe a fiduciary duty to the association, like relying on a licensed community association insurance professional.  By doing so, the board develops a strong defense to a strong business judgment defense.  Second, the counsel is free.
    • CAMS should never sign an application on behalf of an association.  The association does not pay the Management Company or the CAM.
    • Always make the board review the application, make any changes they need, and have the appropriate board member sign the application.
    • Not all insurance coverage is equal.
  • 04/01/2019 9:19 AM | CAI Rocky Mountain Chapter (Administrator)

    By Jason Kleinsmith, SavATree

    Do you manage a community association with numerous and/or aging trees? Chances are, you‘ve had to contend with unexpected tree care costs, and perhaps damage to structures or other property resulting from failed tree limbs. You want to head off future problems and preserve the beauty of your community’s treescape; But where to begin?

    Start with a tree inventory.

    A professional tree inventory and management plan is the most efficient and cost-effective way to care for your trees and keep your community attractive and safe. It can help your association avoid expensive emergency tree services, reduce risk to people and property, and build a data-based care plan tailored to your priorities and budget.

    A professional tree inventory is a detailed report prepared by a certified arborist that lists and describes all the trees and their locations within the specified areas on your property. The assessment of an individual tree consists of a 360-degree, ground-based visual inspection of the tree’s crown, trunk, and above-ground roots. The inventory captures a range of useful data for each tree, including its location, species, age, condition, defects, recommended action, and a priority rating for each recommendation – e.g., “high,” “medium,” or “low” priority of action, or “no action needed at this time.”

    In community associations, all common areas, open space, and recreational areas are typically included in the tree inventory, while residential parcels are not. The inventories are usually performed in “improved areas” marked by grass and mulch. However, if the property includes unimproved areas such as natural areas and woods, the arborist would perform a limited visual assessment of those areas to identify tree conditions which could impact persons or property in the maintained areas. If significant defects are found, those trees are added to the inventory. 

    Due to advancements in technology, tree inventory and management plans are now remarkably functional and accessible. In addition to a written report of the data and recommendations in the tree inventory, the information is also provided on a cloud-based application that can be easily accessed by the property manager, the homeowner’s board, and the tree-care professionals hired to do the work. 

    The many benefits of a tree inventory. 

    The scope of a tree inventory should be tailored to your community’s specific concerns and goals. The focus can be strictly on risk assessment – identifying dead or failing trees that pose a potential risk to people and property -- or can more broadly address the health conditions, suggested interventions, and recommended maintenance of the community’s tree canopy. Here are some of the advantages of having an inventory done in your community:
     
    Safety.

    An expertly-prepared tree inventory will warn you of the potential for tree failure due to pests or disease.

    Data-based decision-making.

    A tree inventory helps your association make clear-eyed spending decisions based on the specific conditions of your trees – i.e., which dead or decayed trees should be removed immediately, which trees with disease or pest problems can be treated to save or extend their life, which healthy trees can be treated to prevent problems. 

    Budgeting.

    The risk ratings and other useful data points on the inventory help the association and its tree care professional establish a scope and timetable for the tree work based on the priority ratings of the recommendations, the estimated costs, and the association’s budget. 
    Completing the work. The detailed inventory report – in its print and web-accessed (mobile-friendly) formats -- becomes a concrete working plan for the property manager and Board to use in conjunction with our tree-care professionals to complete the work. 

    Guidance on new plantings.

    Because the inventory report provides a breakdown by tree species -- and highlights any over-represented species -- it serves as a guide for new plantings to ensure species diversity that will protect your landscape from devastation from a single pest or disease.

    Take the first step.

    Arrange to meet with a certified arborist to discuss your goals for a tree inventory. Once you have a tree inventory in hand, you can work with your tree care professional to devise a comprehensive, reasonable, and multi-phased management plan that will help you keep your community’s landscape in the best possible shape for current and future homeowners.   

    Jason Kleinsmith is an ISA Certified Arborist with SavATree, providing tree care and plant health care services to professionally managed communities throughout the Front Range of Colorado.

  • 04/01/2019 9:18 AM | CAI Rocky Mountain Chapter (Administrator)

    By Mike Colton, Asset Preservation Group, LLC  

    A building’s siding is exposed to Mother Nature all day, every day, for years and years. Water, sunshine, wind, ice, time, fire, and pests can all play a part in determining just how long that siding and ultimately your building may last. Choosing products that are engineered to stand up to the elements, as well as performing routine maintenance are the key factors in a long and effective life for your building. 

    The goal is that in 10 YEARS YOU WILL SAY TO YOURSELF, "I MADE THE RIGHT DECISIONS. I GOT THE RIGHT PRODUCTS. I FOLLOWED THE RIGHT MAINTENANCE PROGRAM.”

    Being ready at all times is instrumental to the success of long-lasting siding. Bad weather and other events can strike at any time. But it's not only extremes that break down siding - the change of seasons does a number on materials such as vinyl (which may crack in the cold or blow off in high winds) or wood products (which expand and contract with changes in moisture and humidity). Studies have also shown the long-term effects that different climates have on siding, which is why the IECC Climate Zone Map was created to help you choose the right products for your region. Zone 5 products, for instance, are made to resist wet, freezing conditions, while Zone 1 and 2 products protect structures from heat, humidity, blistering sun and more.

    THE THINGS WE VALUE MOST SHOULD LAST THE LONGEST AND THEREFORE BE PROTECTED AT ALL TIMES 

    Water can damage your building like nothing else can. It may be gradual or sudden, but it is relentless and can cause extensive structural damage, swelling, cracking, delamination, mold/mildew, and color separation. This is where the right products and maintenance programs are most critical. Regardless of the product you choose based on your climate, proper installation per manufacture recommendations is a must and when possible, having participation of a manufacture’s field representative during installation is ideal for not only ensuring that the product is installed correctly, but also to ensure a full manufacture’s product warranty. Proper flashing installation, sealing all joints that should be sealed, and leaving all recommended joints/seams open for ventilation and moisture transfer is the key to a successful siding installation. 

    Once the product is installed, annual inspections and routine preventative maintenance is highly recommended. Inspections should consist of checking all seals for proper adhesion and cracking and all joints for proper fit and gapping. Inspections should also identify any loose or missing product. If your siding product is painted, it is also important to ensure that the condition of the paint is sound and full coverage is still in place. If areas are peeling or damaged, immediate touch up should be performed.  Depending on the product type, periodic re-painting may be required to ensure proper protection of the siding. This period can range from 6-10 years based on the quality of paint products used and the quality of installation performed. Numerous products, such as pre-colored cementitious siding, vinyl siding, and veneers are engineered to last much longer before surface conditions become an issue and need to be addressed. 

    THE TEST OF TIME 

    One thing's for sure: As the years go on, we all show signs of aging. Choosing the right products created to stand up to the demands of your specific climate and performing routine inspections and maintenance will ensure they will look great for years to come, saving you both time and money.

    Mr. Colton is a graduate of Colorado State University and founder of Asset Preservation Group (APG), a full-service General Contractor based in the Denver, CO and serving the Mid-West. APG has the distinction of being a James Hardie Multi Family Preferred siding installer as well as a multi-product roofing specialist. 

  • 04/01/2019 9:16 AM | CAI Rocky Mountain Chapter (Administrator)

    By Antonio Rojas, Duke Property Inspections

    Spring is fast approaching! With winter days behind us, spring storms are heading our way. This is the time for us to be proactive in our preventative measures against the negative effects of storm water. For true moisture protection, it is necessary to start at the top and work downward. Your first line of defense is located at the roof of a structure. The roof is designed to shed water to the gutters and downspouts. Sidings and gutters shed water away from the structure and foundation of the property. Grading and drainage directs that water away from the structure and toward storm drains and water retentions. Each piece of this structure is affected by the former component. When one part is compromised, it can affect everything that comes after. Our goal is to inform professionals on items to look for this spring in order to help reduce major damages due to storm water. 

    Roof Maintenance 

    Spring storms can be unpredictable. We often see snow, freezing rain, and a mixture of the two. During a storm is the perfect time to see how the downspouts and roof slopes are performing. Observe the drainage patterns of entire building structures. Downspouts, surface gutters, and drains should be directing water away from the foundation of the structure. After a storm is the perfect time to check the roof. Look for damaged or missing shingles and signs of rusting, cracking, or leaking. Having a contractor actively monitoring and repairing these components, as needed, can save from developing major issues. 

    Siding Functions

    Siding is the exterior wall covering of the home that acts as a “skin” for the house exterior. This protects against the elements, particularly to shed precipitation down and away from the foundation. Siding includes wall surfaces, eaves, soffits, fascia, windows, doors, trim, flashing, sealants, and caulking. If there are any part of these components that fail, this may lead to greater structural damage. All of these items should be inspected by a contractor annually to ensure that are operating as intended. 

    Landscape Grading and Drainage

    Well-maintained landscaping and other improvements are important for the enjoyment of a healthy and durable property. One of the most important parts of landscape is maintaining the proper grading and drainage. If the drainage is poor or non-existent, your entire property can potentially suffer. Excess water in your landscape can lead to damage in trees, roots, and soil erosion. If water is directed toward the foundation of structures, it can eventually lead to major structural damage as well. Once water or structural damage occurs, the cost of remediation can be very expensive. If your property does not have enough grading, water can pool or flood. If your property has too much grading, water will drain away too quickly, and plants will have difficulty surviving. Spring is a busy time for landscape contractors as they prepare for the grow season. I recommend scheduling a walk through with your landscaping contractor to effectively determine the grading and drainage of your property. 

    Concrete Flatwork  

    With Denver's soils constantly expanding and contracting as a result of ever-changing temperatures and moisture, it is common for concrete flatwork to settle, sink, and fail in response to soil movement and compaction. Settling creates uneven surfaces that can often result in dangerous trip hazards. Now is a good time to perform those community walks to determine which sidewalks, walkways, and driveways need repair or replacement. There are many factors as to why the pads are settling that can be directly related to storm water mitigation, such as gutter downspouts that are leading directly to concrete pads, and landscape negative grading that leads to areas of a concrete structure instead of water retention areas or storm drains. Having these walk-throughs and assessments of the properties can lead to preventive repairs on other components of the community and can add longevity to the concrete flat work as well.  Concrete cracks should also be noted on these site walks. Many believe that concrete cracks are a non- issue, but this is the first sign of action needed. Cracks can give us a "tell" that there is an underlying problem. Once we have identified the problem, we can then remedy a solution for the area. Work with your concrete contractor this spring to ensure your community’s safe from trip hazards. 

    Spring is a busy time of year. We are starting to see a change in weather and getting ready to ditch our winter coats. Now is the time to be proactive! In order to have sustainable properties that will last for many years, we must start maintaining our environment. By taking the additional time to walk the properties, work with your local contractors, and implement these preventative measures, you can provide storm water protection for your assets.

    Antonio Rojas is Owner and Lead Inspector of Duke Property Inspections. He carries 10+ years of experience in Building Construction and Landscape Management.  Please visit dukepropertyinspections.com for more information.

  • 04/01/2019 9:12 AM | CAI Rocky Mountain Chapter (Administrator)
    By Joshua Johnson, Meridian Fire and Security

    One of the largest maintenance issues that associations can face is corrosion of their current fire sprinkler system. Microbiologically Induced Corrosion (MIC) is only one of several types of corrosion found in wet and dry sprinkler systems. MIC can involve different types of bacteria that colonize on the internal surfaces of sprinkler systems and cause highly localized corrosion, resulting in the common "pinhole" leak. To mitigate the risks associated with potential leakage or even flooding of corroded systems, the need to conduct periodic internal assessments of water-based fire protection system piping is imperative and mandated to comply with the National Fire Protection Association (NFPA) standards. 

    The traditional method of conducting an internal inspection of a sprinkler pipe involves draining the system, opening the piping and associated fittings, and physically looking inside, in order to take pictures and samples of any organic growth. This can be time consuming, costly, and potentially disruptive to owners/tenants due to the labor involved and the smells immitted from the opened pipe. For larger facilities or buildings with multiple systems, this can ultimately equate to days or even weeks where the system will be down. However, there are alternatives available that are less invasive for conducting these assessments such as ultrasound or ultrasonic technology.

    Ultrasonic/ultrasound technology is available as an alternative and is a less-disruptive testing protocol. The sprinkler industry has used two forms of this technology for years with good results. One method is Pulse Echo ultrasonic technology. This measures the remaining wall thickness by bouncing a straight beam signal through the pipe, and off the back wall. The accuracy of this measurement is down to 1/1000th of an inch. The other ultrasonic option is Guided Wrap Wave, which sends a wave signal around the circumference of the pipe, creating a signature. This is then compared against the signature of a pipe in perfect condition. Discrepancies between the two measurements (signature of pipe in perfect condition and Guided Wrap Wave signature) can indicate a number of issues, such as corrosion, ice plugs and other changes. 

    Utilizing these methods of testing also allows the inspection team the ability to test numerous parts of the pipe in numerous locations on each riser without having to shut down the system at all. It is very thorough and effective in identifying if there are any problem spots internally and can rectify and evaluate the results instantaneously. If there is a problem spot detected, the inspection team alerts property manager/maintenance personnel of the findings, and then will attempt to schedule a time to open up the pipe and go through a more hands on investigation as detailed in Chapter 14 of NFPA 25. An inspection team, upon approval from management, will take numerous pictures at this point and investigate with a telescopic flashlight.  The team will clear any obstructions from the branch line or other areas and continue with further testing. 

    Ultimately, if real corrosion has occurred, there is no substitute for manually opening and replacing the pipe. The problem is in identifying where to do that, and ultrasonic testing is an efficient and cost-effective way to identify the spots that are prone to problems. It is one of the reasons many companies are seeking out and researching this new technology in order to provide the best overall value to their customers. Associations that are sensitive to disturbances for their owners or who have a substantial potential for water damage, such as high-rise associations, would benefit from this technology.

    One of the primary goals of a successful management team is to provide effective life safety. As part of this effort, these teams utilize building and fire codes to establish a threshold of acceptable compliance to protect their occupants. These codes are continuously being changed and updated to reflect new technologies and trends (such as sonic testing), as well as lessons learned from historical events. This burden on management teams poses a distinct challenge of not only being aware of the adoption of new codes, but also understanding how the changes in these codes directly effects and impacts both current and future occupants. In order to combat these adversities, it is important to be familiar with individual buildings and the codes that apply to them, periodically check NFPA websites for periodic updates, and being involved with local authorities having jurisdiction.

    Joshua Johnson has worked at Meridian Fire and Security for 15 years and holds a NICET 3 Certification in Fire Alarm Systems and holds inspectors’ licenses in both Colorado and Nebraska. Meridian Fire & Security specializes in the design, engineering, development, supply, installation and service of integrated fire and life safety systems. 







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