Archive for August, 2009

JOINT AND SEVERAL LIABILITY: Boilerplate Term With a Bite

The phrase “joint and several liability” is often used in contract matters.  This type of liability occurs when more than one party is involved in a contract and where both joint liability (that of all the parties to the contract) and several liability (that of each individual party to the contract) promise the action in the contract (ex. payment of the debt).  It is important that you understand the additional commitment that you are making when you agree to joint and several liability because you may find yourself solely responsible for payment under the terms of the contract.

If the terms of the contract are not fulfilled, the injured party (i.e. landlord, vendor, or bank) has the ability to seek a legal remedy from all the parties involved (joint) or each individual party (several).  If your partners are unable to pay, the injured party can look to you individually for payment of the whole debt.  The injured party has the right to collect all of its damages from any one party.  Then the party who gets stuck with the bill has the burden of seeking contributions from the other parties to the contract.  In other words, if two parties have “joint and several liability,” this means that both of the parties are in essence individually responsible for the entire amount of the contractual obligation.

If you are asked to sign an agreement as one of the parties that will be jointly and severally liable, take steps to protect yourself.  Try to negotiate an agreement that does not call for joint and several liability or ask that your individual liability be limited and separately stated.  If your only option is to sign the agreement with a joint and several liability provision, make sure that your co-party is responsible and will pay the obligation.  Remember, if he or she does not hold up their end of the bargain, you may have to pay the entire bill.

Another option is to prepare a separate written agreement with your co-party defining responsibility for the contractual obligations.  With a written agreement, if your co-party defaults and you are forced to pay the entire amount, you will have a better chance of collecting your co-party’s share of the obligation in a lawsuit.

Joint and several liability provisions are very common in many different types of contracts.  It provides added protection to the other party that they will be able to collect from someone for the debt owed.  Each party that signs a contract should appreciate that “joint and several liability” means that each of the parties are in essence individually responsible for the entire amount of the contractual obligation.

Disclaimer: The information provided in this article is for general information purposes only and should not be construed as specific legal advice.  The application of any matter discussed in this article to anyone’s particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 2009, Peak Law Group, LLC
ALL RIGHTS RESERVED

Contact the Portland Attorneys at Peak Law Group for more information.

Advertisements

Small Business: What Type of Insurance Do I Need?

Protecting your business investment with insurance is a critical part of small business ownership.  It minimizes the risks associated with unexpected events, liabilities, and losses.  However, as with all insurance markets, knowing and finding the best insurance for your needs is not an easy task.

Whether you are starting a business, taking on employees for the first time, or evolving your business structure, there are many variables that determine the right insurance for your small business, including your business structure, business activities, location, whether or not you hire employees, and so on.

Most of the information published in the public domain comes directly from those with the greatest amount of vested interest – the insurance companies and their agents. So it’s no surprise that navigating the maze of small business insurance laws and best practices can be confusing.

There are two fundamental types of insurance – commercial business insurance, which is not necessarily required by law, and employer insurance, which is.  Below is a summary of the types of insurance you may wish to consider to protect your assets and investments, as well as the insurance requirements you must comply with as an employer.

Types of Commercial Business Insurance

This section covers the types of insurance policies available to you as a small business owner.  Although not necessarily required by law, you would be wise to purchase enough business insurance to protect your assets against events such as the death of a partner, a natural disaster, or lawsuit.

It’s a common misconception to think that structuring your business as a corporation or LLC limits the need for business insurance.  While these business structures do protect the personal assets of the owner from business liabilities, relying on business structure alone to protect your assets is not a substitute for liability insurance, which covers your business from losses.

It’s also important to know that, in certain instances, state law may require that your particular business activity is covered by some form of insurance.  For example, if you use a car or truck for business purposes, Oregon requires that you purchase commercial auto insurance for its use.  Refer to the Oregon Insurance Division (http://www.cbs.state.or.us/external/ins/
consumer/consumer.html) for more information about what insurance is required in Oregon.

Here is a summary of the kinds of business insurance policies to consider for your small business:

  • General Liability Insurance – This insurance broadly covers and provides protection against the legal hassles associated with accidents, injuries and claims of negligence.
  • Product Liability Insurance – If you manufacture, wholesale, distribute and retail a product, this insurance protects against financial loss as a result of a product defect that can cause injury.
  • Professional Liability Insurance – If you provide a service to a customer, this insurance can protect against malpractice, errors, and negligence in the provision of those services to your customers.  Oregon requires certain professions (e.g. physicians and attorneys) to carry such a policy.
  • Commercial Property Insurance – This covers everything related to the loss and damage of company property due to a wide variety of events such as fire, smoke, severe weather, vandalism, etc.  The definition of “property” is broad, and includes lost income, business interruption, buildings, computers, company papers and money.  This is definitely one you should talk to an insurance expert about to understand your specific needs.
  • Home-Based Business Insurance – Contrary to popular belief, homeowners’ insurance policies do not generally cover home-based business losses.  Depending on risks to your business, you may add riders to your homeowners’ policy to cover normal business risks such as property damage.  However, homeowners policies only go so far in covering home-based businesses and you may need to purchase additional policies to cover other risks, such as general and professional liability.

Since there are such a wide variety of insurance policies available, always discuss your individual business insurance needs with an insurance agent or broker.

Insurance Requirements for Employers

If your small business hires employees, you are required by state law to pay for certain types of insurance. Here is a breakdown of the three key employee insurance requirements:

  • Workers Compensation Insurance – In general, Oregon businesses with employees are required to carry Workers’ Compensation Insurance coverage.  However, some workers don’t have to be covered by workers’ compensation, even if they are employees (i.e. sole proprietor, limited liability company members, etc.).  Visit the Oregon Workers’ Compensation Division page (http://www.cbs.state.or.us/wcd/communications/
    emp_info.html) for more information.
  • Unemployment Insurance Tax – If you have employees you are required to pay unemployment insurance taxes.  Employers need to register with the Oregon Employment Department by completing and sending a Combined Employer’s Registration to the Oregon Department of Revenue.  Check the Employer’s Handbook provided by the Oregon Department of Employment (http://www.oregon.gov/EMPLOY/
    TAX/docs/EDPub117.pdf) for more information.
  • Disability Insurance – In the U.S., it is mandatory to purchase disability insurance only if your business is in one of six locations – California, Hawaii, New Jersey, New York, Puerto Rico and Rhode Island.  If your business is located elsewhere, the law does not require you to purchase disability insurance for your employees; however it can be purchased and provided as part of an “employee benefit” scheme to your employees through commercial insurance companies.

Insurance coverage is available for every conceivable risk your business might face.  Cost and amount of coverage of policies vary among insurers.  You should discuss your specific business risks and the types of insurance available with your insurance agent or broker.  Your agency can advise you on the exact types of insurance you should consider purchasing.

Disclaimer: The information provided in this article is for general information purposes only and should not be construed as specific legal advice.  The application of any matter discussed in this article to anyone’s particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 2009, Peak Law Group LLC
ALL RIGHTS RESERVED

Contact the Portland Attorneys at Peak Law Group for more information.