July 2015

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Using Drones On Construction Projects

Joining us to discuss the regulations regarding theMCN Podcast 130x130 Brown use of drones on construction projects is Jackson B. Boyd an associate with Ober|Kaler’s Construction and Litigation Groups.

Can anyone use a drone on a construction project?

The simple answer is no. This may surprise people who’ve seen people flying drones in neighborhood parks and assume they can use them for work as well

  • The Federal Aviation Administration does not regulate the recreational use of drones.
  • The FAA, however, does regulate the commercial use of drones (meaning if they’re being used for a business purpose).
  • The FAA does not currently permit the commercial use of drones unless you have a Section 333 exemption.

Are there any regulations in place governing the commercial use of drones?

The FAA released proposed regulations earlier this year. Once the regulations are finalized, you will be able to use drones for commercial purposes as long as you follow the regulations. Until then, you must get the Section 333 exemption we discussed a few minutes ago. And it could take a year or more for the regulations to become final.

What’s in the regulations?

The proposed regulations are lengthy, but some of the key points are:

  • They would apply to drones that weigh less than 55 pounds. This weight limit includes anything carried on a drone, like video or imaging equipment.
  • Drones will not be allowed to fly more than 500 feet above ground level.
  • Drones will not be allowed to fly over any person who is not directly participating in the drone flight, unless that person is underneath a covered structure that can provide reasonable protection in the event of a crash.
  • Operators will be required to see their drones at all times without the aid of any devices like binoculars.
  • Drones will need to be registered with the FAA, and any operator must obtain an unmanned aircraft operator certificate.

Currently, are there penalties if you don’t get an exemption to fly?

  • The FAA has authority under existing aviation regulations to ban commercial drone operations that don’t have exemptions.
  • The FAA has used this authority to impose fines for unapproved drone use.
  • The FAA also has issued subpoenas in cases involving commercial drones – most notably to realtors who have used drones to take aerial photographs of property.

Do you need insurance coverage if you’re using a drone at work?

  • Yes, you need coverage … but don’t assume that your commercial general liability policy provides it. Most CGL policies exclude coverage for bodily injury or property damage caused by an insured’s use of an aircraft, automobile, or watercraft. The FAA defines a drone as an unmanned aircraft system, and insurers are applying the standard CGL aircraft exclusion broadly to exclude coverage for an insured’s use of a drone.
  • Many insurers, however, are starting to offer coverage options for commercial drone flights. This coverage is offered through separate unmanned aircraft policies or endorsements to existing CGL policies.
  • Make sure all individuals in your company who are participating in the drone flights are covered as additional insureds.
  • Also make sure there is no exclusion in the policy for an electronic malfunction or equipment failure that may cause your drone to crash.

What kind of liability can you be exposed to for flying a drone?

There’s a lot of potential risks – many of them obvious.

  • A crash on your job site could cause property damage to your work, property damage to the work of other contractors, or personal injury to anyone on the site. And a crash off the job site could cause property damage and personal injury to third-parties.
  • Drone flights create the risk of trespassing on someone else’s property if your flight goes off course.
  • Privacy concerns because drones can carry video and audio recording equipment.

How do you minimize these risks?

  • Get an exemption from the FAA
  • Get adequate insurance coverage.
  • Develop specific guidelines for how your company will use drones and then strictly follow those guidelines.
  • The guidelines should address issues such as:
    • Define the intent or purpose of the drone flights;
    • Identifying the individuals participating, defining what their roles are, and providing the qualifications that a person must possess to fill each role;
    • Identifying where take-offs and landings will occur; and
    • Identifying the flight path (exactly where the drone will go, whether it will go over any populated areas, etc.).

These are just some of the issues that you need to consider before using a drone on a construction project. We need to stay tuned to see how the FAA, insurers, and the law adjust and respond as commercial drone use increases.

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