July 4, 2009, is the date for the next “national” TEA Party rally. Like the April 15 “Tax-Day TEA Party,” the upcoming “Independence Day TEA party’s” intent is to make government aware of citizens’ concerns over the current and planned tax policy, spending policy and movement towards an apparent socialist agenda.
Local TEA Party organizations are popping up all over the country, each independent from the other with no set of rules or centralized “governing” body dictating how the local organization should manage their July 4 party. In fact, a representative from one of the national organizations said that the whole point is to get away from centralization.
There is no contractual agreement, “letter of understanding” or even a solidified relationship between the national organization and any local TEA Party. Neither does the national organization(s) contact, designate or appoint anyone within a particular area as an organizer. Local TEA Parties only occur if someone or a group of people in the community decide to take charge and put the rally together. Truly a decentralized grass roots campaign comprised of citizens peacefully protesting against the direction the government is going.
But our current litigious society requires someone to blame in the case of an injury or damage; but without a national structure or even a local “governing” body, any responsibility for injury or damage appears to land on the shoulders of the local voluntary organizer(s). Taking on the responsibility as an organizer may create liability and potentially expensive consequences for these volunteers.
Granted, these local organizers are simply volunteers exercising their rights to peaceable assemblage, but they have set themselves apart by: applying for the permits to use public space, broadcasting (in the broadest sense of the term) the location and time of the rally, printing fliers, organizing speakers and entertainment, and taking on any other duties related to the day. Leadership in organizing an event begets some level of responsibility for its outcome. Since these local TEA Parties are not necessarily legal entities, the individual leaders should want some form of insurance protection in place to respond should the unexpected occur.
Beyond the individual exposures triggering the need for coverage, some municipal jurisdictions require any organization using public property to supply proof of insurance and even name the jurisdiction as an additional insured. However, this insurance requirement is not true of all jurisdictions; many will allow public access with the only requirement being the application for and issuance of a permit for use – which comes back around to the person whose name is on the permit being considered the or one of the organizers and potentially individually liable (yes, it’s a circle).
Insurance for the Organization and the Organizers
These TEA Parties are one-day events, but is the liability potential limited to just that one day? Like many answers to questions of liability, the best answer might be, “it depends.”
Prior to the actual day of the Party, the organizers are buying ads, applying for permits, printing fliers, arranging speakers and any other activity necessary to assure the day accomplishes its intended purpose. Each of these “duties” holds the potential of some level of liability. For instance, on the way to the printer to order the fliers, the volunteer organizer is in an auto accident. Will or can the pseudo organization be held liable for the accident?
Personal auto policies state that any person or organization legally responsible for the actions of the policy’s “you” are also covered by the policy as a defined insured. In the above example, the volunteer’s personal auto policy would supply coverage for him and the local TEA Party’s vicarious liability, if necessary (not likely it will be named in a suit, but just in case). The idea, were it not for the driver’s duties as a volunteer of the TEA Party, he would not have been on the road and involved in the accident.
Most foreseeable bodily injury and property damage liability-creating situations arising out of the planning of the TEA Party prior to the event are relatively minimal and basically covered by each individual’s personal policies. But what about the day of the TEA Party, what is the potential for bodily injury or property damage claims against the non-entity and its organizers?
The presence of “protestors” often creates the presence of counter-protestors; words and sometimes even blows are exchanged resulting in bodily injury. A food vendor may unintentionally pass a food-borne illness to attendees. Security personnel hired by the organizers could inappropriately treat a participant resulting in personal and/or bodily injury. Stands built for the occasion could collapse. Property could be damaged or destroyed by the crowd; and so on. The potential for bodily injury, personal injury or property damage on the day of the Party is great and the organizers’ homeowners’ policy will not protect them for any liability assigned to them as a result of these activities. Separate and specialized coverage is required to avoid a potentially huge out-of-pocket expense.
A Special Events Policy would likely cover these and other exposures faced by the organization and its volunteer leaders. Such a policy would also satisfy most, if not all, municipalities requiring insurance coverage of the organization. These policies are available from many Excess & Surplus Lines carriers. There also exists a program known as TULIP – Tenant User Liability Insurance Program.
TULIP programs are generally available through the individual city or town. Jurisdictions that participate in a TULIP program give the “tenant” desiring to use the public facility a link to a website where they can quote, bind and pay for coverage online. Because these programs are set up through the municipality, the subject jurisdiction is automatically named as an additional insured and receives a certificate of insurance. Not every municipal district has access to TULIP programs.
Special events policies and TULIP program coverages are most commonly based on Insurance Services Office’s (ISO’s) commercial general liability policy (CG 00 01). Premiums for both policy types are generally based on the nature of the event and activities, the number of days, the expected number of participants and any perceived special risks.
Assigning the correct Named Insured designation requires some consideration since the local TEA Party organization is most often a “non-entity.” Remembering that it is always best to be the “you” in the policy, naming the organization AND individual organizers as additional named insureds (which is different than “additional insureds”) is preferable. Although “volunteers” are included as insureds under the definition of “Who Is An Insured,” it is far better to actually name the few primary organizers to assure them the broadest protection available. Primary organizers may be best defined as the ones that sign for the permit, arrange the speakers and act as the “voice” of the local movement.
TEA Party Risk Management
Just because the local TEA Party organization is not a “business” does not mean it should not protect itself like a business. There are a lot of moving parts to putting together a successful “Party.” Speakers must be “hired,” entertainment may be a part of the day, food vendors might be contracted and some TEA Party organizations might think it necessary to hire onsite security to head off or respond to trouble.
The local TEA Party and the primary organizers can be collectively and individually held vicariously liable for the actions of any outside entity hired to work the rally or allowed to offer their services or products at the meeting. Due to this possibility, the organizers should have contractual risk transfer practices in place to protect the organization and the organizers.
Any contract between the local organization and any third party should clearly state that the outside person or entity agrees to indemnify and hold the organization and its organizers harmless to the extent allowed by the law. Specific contractual wording should be created or reviewed by an attorney and is outside the scope of this article.
Beyond contractual risk transfer, the local TEA Party organization should require every service or product supplying entity involved in the rally to name it and the primary organizers as additional insureds on their commercial general liability policy. Combining contractual risk transfer with additional insured status accomplishes the risk management goal of putting the financial burden for an injury on the shoulders of the entity that caused the injury or damage and is best able to control the situation.
The End of the “Party”
With municipalities asking for proof of insurance and the potential liability faced by local organizers (with no national backup), knowing the exposures created by TEA Parties and the proper insurance and risk management techniques allow proper preparation and planning.
Written by: Christopher J. Boggs, Mynewmarkets.com, 5/26/09