In this first episode of a special two-part series, Landscape Group Vice President Drew Garcia, is joined by Josh Ferguson, attorney with Freeman Mathis & Gary, to discuss risk management for snow and ice operations and what landscape contractors should know.
Show Notes: Subscribe to Rancho Mesa's Newsletter.
Host: Drew Garcia
Guests: Josh Ferguson
Producer/Editor: Jadyn Brant
Music: “Hiking” by Silent Partner, "Home" by JHS Pedals, “News Room News” by Spence
© Copyright 2025. Rancho Mesa Insurance Services, Inc. All rights reserved.
transcript
Drew Garcia: Welcome back everybody. I'm Drew Garcia, Vice President and Landscape Group Leader here at Rancho Mesa. Today we have a great opportunity to connect with Josh Ferguson from Freeman, Mathis and Gary. Josh and I had a chance to get to know each other over the last couple of years through different trade associations. Josh has a big focus on the landscape and snow contracting community. Josh, welcome to the show. If you could share a little bit of your background with the listening group.
Josh Ferguson: Yeah, thanks for having me. I appreciate it. So as you said, I'm Josh Ferguson. I'm an attorney with the law firm of Freeman Mathis and Gary. I'm based in our Philadelphia office, admitted to practice in several states up and down the Mid-Atlantic. And I've been a litigator for 20 years now. I've litigated hundreds of slip and fall and trip and fall claims, developed the specialty over the last dozen years or so in the landscapes, snow and ice management, power sweeping industries, and have relationships with some of the trade associations in those industries like Snow and Ice Management Association, Accredited Snow Contractors Association, Planet and some of the state and regional landscape and snow contractor associations.
DG: Josh, your background's perfect timing for us because I can't tell you how many conversations with our clients lead to contracts and the contracts that they're signing with their customers, whether they're signing the customer's contract or are they putting their contract in front of the customer to sign; opportunities to review that and make sure things are up to speed before they start to get the work done. So I'm really excited for you to be able to comment a little bit on, you know, one, in the snow and ice management world, obviously the contract is super important. What are some things that these landscape contractors should be focused on pre-work, and before the contract gets signed, what are some things that they need to focus on to make sure that things are in order in the event something happens later on down the line?
JF: In the snow and ice management world especially, they're risk managers first and foremost. It starts and ends with documentation. So that's from the very beginning when they're starting to develop an RFP to if they get a contract and they need to do a preseason site inspection through in-event performance, post-event performance and invoicing all that needs to be documented. Because if it's not documented when these claims arise whether it's your client on the site telling you, you damaged something or two years later somebody said they slipped and fell you're going to need to prove through a document ideally what you did six months or two years before otherwise again it comes down to credibility and you don't want those claims to turn into intersectional car accidents where everybody claims they have the green light.
DG: That lines up so well with insurance right now because, you know, before we started recording this I was talking about just the carrier underwriting capacity for this type of work. It's really dwindling. There's a lot of questions that surround the pre–underwriting process or pre -quoting process for any landscape company that's in any portion of their work doing snow and ice operations. And you know, one of the key pieces that I think is starting to push the industry in the right direction is the ability to document and there's a lot of technology and software that's making that a little bit easier. Have you seen some improvements in the contractors’ ability to document based on the technology that's available to them today?
JF: Yeah, look, at the end of the day, from an attorney perspective, we're asking for the sun, the stars, and the moon from these contractors. And in the middle of an event, things are more challenging. It's why we probably didn't get as much documentation back in the '70s and '80s and '90s, but technology has really changed the ability for them to do things without a ton of extra work, whether it's right on their phone with an app or it's the actual pieces of equipment, recording it, GPS, or application of de-icing material, whatever it is. And we are seeing that more and more in claims when a suit arises and we're asking for documentation that's coming. And it really does make a big difference in our ability to prove that what you say you did, you actually did.
DG: And I mean, so important in today's world to be able to have that proof. And when there's the ability to do it, it's on the contractor to develop those processes so that it becomes routine so that they don't miss that one opportunity and that opportunity becomes the one that comes back to get them in the end. How about when that work’s being subbed out, so not self -performed, maybe by the landscape business, but they're using service partners to form that segment of the business. Is it same concept there? Are you holding your subcontractor to those same standards? Should they be doing anything different with that work?
JF: Yeah, I mean, absolutely the subcontractor should be doing meeting industry standards and what's in the contract. One area I see contractors that are really good and do good work fall down a little bit when they subcontract out work is that they may have one base subcontractor agreement that they hand out to all of their subs. But each and every one of their client contracts might be different. And you want to make sure the terms that you're obligated to are then passed down to your subcontractor so there's not a gap. So we're talking about the actual scope of services, we may even be talking about the insurance policy limits. These claims have gotten larger and larger in size. What used to be a slip and fall that costs $200,000 now costs half a million dollars in some locations. And sometimes that impacts policy. So you want to make sure you are really comparing and contrasting and making sure that your subcontractors are meeting all the burdens that you would have had to meet should you have kept the work.
DG: Absolutely. And do you see, is that something that a contractor should be looking at routinely? So how often should they review their subcontract agreement to make sure, “am I up to speed with today's terms?” Or is that like once a year you should be looking at that? What's a good cadence on just reviewing that and making sure that you're up to speed?
JF: Yeah. I mean, I think both on your client contract and then your subcontractor agreement, I would look at those yearly. As someone who reviews, especially this time of year over the last few months, dozens of contracts sometimes a day from my various direct hire clients that I serve as outside general counsel for, it's a living and breathing document, right? So even this many years into litigating and serving as general counsel, things come up each year where then we're adjusting a base agreement for. And in addition to that, things change over time. So I think it's something, and business models change. You may do less retail shops and more HOA work. And that may change the type of language you want in your agreements. So I think those are things you should revisit on a yearly basis.
DG: And so that the people listening on the other end have an idea is how to get that done is that having somebody like you in their corner where, you know, annually they're sending these over to you for review? So having some sort of partnership with a firm so that they have this ability to manage those contracts throughout the year or when they're annually recreating their subcontract agreement. Is that how you get that done?
JF: Yeah, I think that makes the most sense, you know, if you have a counsel or somebody you're comfortable with that makes a ton of sense. Again, something we do we do a fair amount and we revisit those annually and then, again, we know there's peak season for those contract review negotiations especially if you're getting a client agreement pushed down on you and you have some concerns with the language, that's something we look at routinely. But whether it's us or someone else the thing that I hope folks come away with the most is that you should always try to review that that contract that's put in front of you and mark it up so it's at least fair. The worst thing that's going to happen is it's all rejected, but you still have the benefit of reviewing it, understanding it, and so at least you know your risk management there.
DG: Good point. I think I like that term, just being fair, because I think a lot of the audience listening that is in this space and performing some snow and ice service or some winter services, they understand that at the end of the day, they want to be there to provide coverage if there's an issue that they inadvertently did. If it was an issue that came up as a result of the service that they rendered, then absolutely, you want to be there for that. I think it's where it might be a little bit of a gray area in terms of who's really at fault with this, that's where I think a lot of the businesses today. Are you seeing more where the contractor's able to put their contract in front of the customer or is it shifted now where the customer's more imposing their contract to the contractor? Has there been any change in that recently?
JF: I think it's pretty consistent that the big box stores, the retail establishments, the large property managers are still trying to put their agreement in front of folks in the snow and ice management industry. We are seeing, I think, an overall uptick in the willingness to engage in a back-and-forth process on the language. Again, depending on the size and folks involved on the other side. You may get one thing out of 10 changed, you never know. But again, most of the time it's worth those efforts.
I am seeing more contractors that have at least drafted up their own contract. And so sometimes then we try to add our contract—meaning the snow and ice management contractor—in as an addendum or an exhibit to then the say property managers contract to help balance out some of the risk and liability-limiting language.
DG: Got it, very good. Anything else that you wanted to share in your experience with snow and ice? I know this could go a number of different ways and we're trying to keep the time down to a 12 –minute segment, but anything else that you wanted to share on the snow and ice side for the listeners?
JF: Yeah again, the importance of having a contract that's clear on your obligations and documentation to prove what you did in January 15, 2021 at 2:30 A.M. If you've got a contract that says the time you were supposed to come out, exactly what you're supposed to put down—and you have the documentation to prove it, it allows your insurance company and their attorney, if a claim arises, to put it in the best position to defend those claims instead of paying out. And that will protect you and the industry as a whole over the long run.
DG: That's a great point. Well said. Well said. Well we appreciate it, Josh. Thanks for the comments on snow and ice, and hopefully we can do this again soon.
JF: Thanks for having me.
