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Production's insurance not covering owner/operator?

Insurance contractor owner operator

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#1 Koji Kojima

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Posted 11 January 2017 - 12:46 AM

Hi, all

I just got the first job as Steadicam Op. I was really excited but the producer told me this and am really worried now.

 

Here's what he said:

 

"Just so you know, our insurance may not cover you if you are "owner-operator" (because CA state requires you carry your insurance as contractor; thus many production insurances don't cover owner-operators who are contractors).  So use your company as a rental company then there's no problem."

 

As a new guy, I haven't set up a company for my Steadicam yet.

 

I'm just wondering if what he's saying is true and I have to use my own insurance or if it's false and there's a way to get it covered.

 

Thanks, 


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#2 David Allen Grove

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Posted 11 January 2017 - 12:17 PM

If he sets your hours, tells you when and where to work and if you are using their equipment that is not your own, like the camera, then according to the IRS  you are considered an employee. Not an independent contractor. He's responsible for you. 

https://www.irs.gov/...yed-or-employee

Check this out as well. 
https://www.hg.org/a...le.asp?id=28453

"Pursuant to California labor law, the basic test for determining whether a worker is an independent contractor versus an employee is whether the principal has the right to direct and control the manner and means by which the work is performed. If the employer is unclear whether the worker or the employer has the “right of control”, the employer should review and analyze a list of secondary factors that serve as evidence of the existence or nonexistence of the right of control. 

The IRS has a checklist of 20 factors, which are based on the common law as developed in past court cases and administrative hearings. These factors, found at 4600 IRS manual, are:

1. PROFIT OR LOSS. Can the worker make a profit or suffer a loss as a result of the work aside from the money earned on the project?
2. INVESTMENT. Does the worker have an investment in the equipment and facilities used to do the work? The greater the investment, the more likely independent contractor status will be found.
3. WORK FOR MORE THAN ONE CLIENT. Does the worker perform services for more than one client at a time?
4. SERVICES OFFERED TO THE GENERAL PUBLIC. Does the worker offer services to the general public?
5. INSTRUCTIONS. Does the business have the right to give the worker instructions about when, where and how to perform the services?
6. TRAINING. Does the business train the worker to do the job in a particular manner?
7. INTEGRATION. Are the worker’s services so important to the business that those services have become a necessary part of the business?
8. HIRING ASSISTANTS. Does the business hire, supervise and pay the worker’s assistants or staff?
9. SERVICES RENDERED PERSONALLY. Does the business require that the worker provide the services personally or may the services be delegated to someone else?
10. WORK HOURS. Does the business set the work hours or is the worker the master of his/her own time?
11. CONTINUING RELATIONSHIP. Is there an ongoing relationship between the worker and the business?
12. WORK PERFORMED ON PREMISES OF BUSINESS. Must the worker perform the services on the premises of the business, or does the business control the route or location where the services are performed?
13. SEQUENCE OF SERVICES. Does the business have the right to control and determine the order in which services are performed?
14. REPORTS REQUIRED. Is the worker required to submit reports accounting for the worker’s actions?
15. PAY SCHEDULE. Is the worker paid by the hours, day, week, or month as opposed to being paid by the job or on commission?
16. EXPENSES. Is the worker reimbursed for expenses for business or travel costs?
17. TOOLS AND MATERIALS. Is the worker provided by the business with the equipment, tools and/or materials necessary to perform the services?
18. EMPLOYER’S RIGHT TO TERMINATE. May the business fire the worker at any time?
19. FULL TIME EMPLOYMENT. Is the individual required to work full time for your company? 
20. LIMITATION OF SERVICES. Does the individual limit the availability of his services to the general public?

Bear in mind that these factors are only a guide for determining whether or not a worker is an employee, and the IRS recognizes that the degree of importance of each factor varies depending upon the occupation and the actual context in which the services are performed.

The business must exercise sound judgment in its classification of workers and thereby in distinguishing whether a worker is an employee versus an independent contractor. The business can implement methods such as the ones below, to help mitigate a potential misclassification:

1. Ensure that the business has a written agreement (an independent contractor agreement) with its independent contractors and that the independent contractor agreement describes the scope of the work to be performed, the compensation paid, the timing of the work and clearly define the independent contractor’s tax obligations;
2. Ensure that the independent contractor has liability insurance, particularly if that contractor is a professional.
3. Ensure that the independent contractor who is a professional has his or her pertinent license and that such license is current;
4. Ensure that the independent contractor has a current business license from the city/county in which he or she is operating;
5. Do not set independent contractor’s work hours;
6. Do not provide the independent contractor with tools, equipment, software or supplies with which to perform his or her work;
7. Do not provide the independent contractor any benefits, which the business provides to its employees.
8. Do not retain or terminate or attempt to retain or terminate assistants or employees for or of the independent contractor.
9. Ensure that the independent contractor submits invoices for his or her work."




 


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#3 Koji Kojima

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Posted 13 January 2017 - 02:52 AM

Thank you for your reply in details!! Very informative!!

 

I'm learning so much here! Sounds like whether I'm treated as an employee or and an contractor makes a difference.

I feel like I should be an employee.

I'll talk to the producer again. I'm hoping to have a decent conversation instead of fight.

 

Again, thank you!!

 

Koji


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#4 brett.mayfield

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Posted 13 January 2017 - 10:21 AM

David is totally correct in this regard. However it can be very hard to convince a producer that you arent technically "freelance" when they are hiring you.

There are a few types of insurance to consider here:

 

-Equipment insurance. There are a variety of companies that can cover your gear. Peruse the forum. Many operators are signed up with WP Dolle. You have to joing the Steadicam Operators Association in order to get a policy with them.

 

-Business liability insurance. I use Hartford to insure myself / my business, very easy to work with them.

 

The production should absolutely issue you a COI for your gear. Whether or not your gear is insured by yourself, the production company should be able to sow you proof that they have insurance that could cover your gear in the case of a loss / claim. THAT BEING SAID-A COI IS NOT A CONTRACT AND ENTITLES YOU TO NOTHING. There is always a battle when bringing a claim to the producer on their insurance, but it is there for a reason. They should not hesitate to give you this. IT ONLY APPLIES TO YOUR GEAR.

 

To work on most sets, you are supposed to be covered for workman's comp, which usually is the responsibility of the payroll company. However, if you are working as a vendor (I used to have a contract with Kohl's where I would rent gear and hire crew and was brought on to the shoot like a production support company-thus a vendor), you will sign a contrcat that will necessitate that you are insuring yourself and your hires.

 

In Los Angeles, you have to register yourself with the Los Angeles Tax Commission whether or not you are an LLC, SCorp, etc. Its a pretty simple process. This will make you a "business" in the eyes of the county. Then you can set up an LLC in the state.

 

The way that the producer is framing it, makes me think that hes telling you to be a loan out of your company, as if both you and your equipment are loan out. which could be possible, but it doesnt actually insure you. it just masks the requirement of your person being insured.

 

Many of these insurance companies will also provide short term (1-day or more) coverage. It is expensive, but can be helpful in a pinch.

Get used to and ready for insurance. Nowadays I think I have almost ten different kinds-health, equipment, homeowners, car, business, umbrella policy, etc.

 

brett.


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#5 Dan Coplan

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Posted 15 February 2017 - 11:03 PM

I don't see why it matters. They're renting gear - who cares the nature of the entity they're renting from. I've worked as both an employee and contractor and, as is STANDARD in our business, I insist on production insurance. No insurance, no workie-workie from me. I also typically have the client sign a simple agreement that they are responsible for the gear and if they have a deal memo that has a section noting that they're not responsible, I cross it out. I think I've only come up against a production once that told me they wouldn't cover the gear and I told them [see above], "No insurance, no workie-workie from me." (not in those exact words). They buckled, as they should have, and provided me with insurance. This is one issue I absolutely will not compromise on.


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#6 Victor Lazaro

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Posted 18 February 2017 - 08:29 AM

I have a deal memo that I can use a rider for theirs that states that the client need insurance for the minimum value of my gear and that any gear broken,lost or stolen not covered by the insurance is to be paid by the production. That covers me for the $1000 deductibles some prods are getting.
If they don't agree to that then I don't agree to work with them.
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#7 John Densmore

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Posted 18 February 2017 - 12:51 PM

Victor - A deal memo sounds like a great document to have.  Also sounds like it should be something that every operator should incorporate into every job.  Does anyone have a deal memo they could share with the community?  Each operator could then tweak it to their own.  Just another way to unify the Steadicam community. 

 

Thanks,

 

John


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