Question on the legal end of accidents
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H2Andy
Contributor
Doc Harry:
just so you know, you are oversimplifying a rather complex market dynamic
i wish it were that easy. then it'd be easy to fix.
but i tell you this, the more morals and ethics lawyers have, the better the system overall can be. can never have too much of that.
WJL
Contributor
Andy, I agree with you that it's not an automatic, incontestable rule. For the benefit of the civilians, and as you already know, like most things in the law, there's no absolute answer. But if for some reason I wanted to try to prove that the relationship was commercial, I'd point to the existence of the waiver, no matter what it said, as something that supported the argument. How well that would work neither you or I can say for sure.H2Andy:
The moral of the story, as we both agree, is avoid risking your own money to find out how this little disagreement would get resolved in court and buy an insurance policy.
H2Andy
Contributor
it will be an argument either way. no matter what you do, there will be an argument
the question is, which course of action will afford you the greatest protection? one that ends with a waiver? or one that ends without a waiver?
let's assume we WILL end up at trial. how do you want to end up there?
and you are absolutely correct that insurance is the way to go here.
the question is, which course of action will afford you the greatest protection? one that ends with a waiver? or one that ends without a waiver?
let's assume we WILL end up at trial. how do you want to end up there?
and you are absolutely correct that insurance is the way to go here.
WJL
Contributor
In a trial I'd rather have the waiver.H2Andy:
But our original poster has more to think about than just winning at trial. The sense I get is that the OP is not running a commercial operation. If by chance the operation is found to be commercial, then other consequences will follow, such as different Coast Guard and licensing rules coming into play, just for example.
Having passengers sign a waiver not required or approved by the insurance company could also have some unintended consequences for the insurance coverage.
This is getting uncomfortably speculative for me at this point.
H2Andy
Contributor
nod, well, your comments make great sense
as you know, one of the frustrating things about the law is that it is rather unpredictable
as you know, one of the frustrating things about the law is that it is rather unpredictable
I've seen this sort of debate on the boards many times. After my three year hiatus from the board, it's depressing to see that people still rely upon the myth that waivers are not enforceable. For those who don't know my screen name, I don't play a lawyer on television--I'm the real thing.
SOME waivers are not effective. That is because the waivers do not meet the requirements for validity or enforceability. When a waiver relating to a voluntary activity is not enforceable, it's usually because the lawyer who drafted it screwed up (yes, it happens) or the operator failed to insist upon the diver reading the waiver and executing it.
In the case of a dive off the coast of the United States, Federal Maritime law governs an accident if the plaintiff so pleads. Also, Federal law will govern the efficacy of a waiver when the accident occurs within its territories (e.g. Puerto Rico, USVI). Therefore, the waiver must meet the tests for validity set forth under maritime law. Those requirements are fairly straightforward: (1) whether person signing waiver had informed consent; (2) whether clause was inconsistent with public policy; and (3) whether clause constitutes valid adhesion contract. Incidentally, state law (at least in the states where I'm admitted to the bar) is identical.
The first prong relates to whether the waiver specifically states what rights the diver waives and the potential risks the diver is assuming. The second prong measures whether a release under the circumstances somehow harms the public interest. Courts have repeatedly stated that no important public interest is harmed by an individual waiving rights when that person voluntarily elects to participate in a hazardous recreational activity. The final prong seeks to determine whether there is inherent unfairness in requiring the waiver or a lack of bargaining power between the diver and the operator. If the waiver meets all of these requirements, it is valid.
In the most recently reported Federal cases on the issue of waivers in scuba diving, the waivers have been upheld as entirely valid and enforceable when the waivers meet the above criteria. See e.g. Murley ex rel. Estate of Murley v. Deep Explorers, Inc., 281 F.Supp. 580 (E.D.N.Y. 2003); Olivelli v. Sappo Corp., Inc., 225 F.Supp. 109 (D. Puerto Rico 2002). However, the other prediction of Murley and Olivelli is that waivers that merely say "I release the local dive shop from liability for all injuries" will certainly not be enforced (prong 1, lack of informed consent). Therefore, careful drafting is crucial.
State law will govern accidents occurring within the confines of state borders, so if you're diving in a New York lake, you should look to New York law (which, incidentally, holds that scuba diving waivers are entirely valid).
I hope this clears up confusion.
SOME waivers are not effective. That is because the waivers do not meet the requirements for validity or enforceability. When a waiver relating to a voluntary activity is not enforceable, it's usually because the lawyer who drafted it screwed up (yes, it happens) or the operator failed to insist upon the diver reading the waiver and executing it.
In the case of a dive off the coast of the United States, Federal Maritime law governs an accident if the plaintiff so pleads. Also, Federal law will govern the efficacy of a waiver when the accident occurs within its territories (e.g. Puerto Rico, USVI). Therefore, the waiver must meet the tests for validity set forth under maritime law. Those requirements are fairly straightforward: (1) whether person signing waiver had informed consent; (2) whether clause was inconsistent with public policy; and (3) whether clause constitutes valid adhesion contract. Incidentally, state law (at least in the states where I'm admitted to the bar) is identical.
The first prong relates to whether the waiver specifically states what rights the diver waives and the potential risks the diver is assuming. The second prong measures whether a release under the circumstances somehow harms the public interest. Courts have repeatedly stated that no important public interest is harmed by an individual waiving rights when that person voluntarily elects to participate in a hazardous recreational activity. The final prong seeks to determine whether there is inherent unfairness in requiring the waiver or a lack of bargaining power between the diver and the operator. If the waiver meets all of these requirements, it is valid.
In the most recently reported Federal cases on the issue of waivers in scuba diving, the waivers have been upheld as entirely valid and enforceable when the waivers meet the above criteria. See e.g. Murley ex rel. Estate of Murley v. Deep Explorers, Inc., 281 F.Supp. 580 (E.D.N.Y. 2003); Olivelli v. Sappo Corp., Inc., 225 F.Supp. 109 (D. Puerto Rico 2002). However, the other prediction of Murley and Olivelli is that waivers that merely say "I release the local dive shop from liability for all injuries" will certainly not be enforced (prong 1, lack of informed consent). Therefore, careful drafting is crucial.
State law will govern accidents occurring within the confines of state borders, so if you're diving in a New York lake, you should look to New York law (which, incidentally, holds that scuba diving waivers are entirely valid).
I hope this clears up confusion.
AzAtty,
Excellent advise, well written, well done.
Dave
Excellent advise, well written, well done.
Dave
Rpeiffer
Registered
Sounds like several of the attnys on this board have valid points. It also points out that several of the attnys on this board have different opinions. AzAtty sure sounds like he knows his "stuff"
So what are the majority of lawsuits, relative or not to operation of a watercraft or scuba incident, attributed to? My point is if you are so concerned with being sued over a scuba accident then you should be equally concerned about being sued for the 99.9% of other possibilities that you may be sued for.
So why pay an attny to draft a "well prepared waiver" and then have to get all your friends to sign it. (now that's a demonstration of trust in your friends) Then if something happens go to court to find out if it will or will not hold up, if it does or does not raise your level of liability, if it does or does not affect your insurance carriers obligation to defend and pay claims.
By an Personal Umbrella Liability (does not cover any commercial exposure) policy that covers you if your sued for a car accident, a boat accident or a personal incident at or away from your residence. Then you have protection for most every exposure you have.
I have to ask, when do you stop getting waivers signed? When anyone rides in your car, anyone coming to dinner and having a few drinks, anyone getting on your boat.....it could be endless. "Who" do you draw the line at for requiring a signed waiver from? Your brother, mother, wife they can all sue you and according to my observations in most situations it's not a question of IF someone who can win a lawsuit against you will sue you but WHEN they do. (key word "most" not all)
Waivers are not the answer, right or wrong, valid or not. Get the insurance, have a good nights sleep and foget about the waiver idea.
PS yep, I'm no attny but I am an isurance agent.
So what are the majority of lawsuits, relative or not to operation of a watercraft or scuba incident, attributed to? My point is if you are so concerned with being sued over a scuba accident then you should be equally concerned about being sued for the 99.9% of other possibilities that you may be sued for.
So why pay an attny to draft a "well prepared waiver" and then have to get all your friends to sign it. (now that's a demonstration of trust in your friends) Then if something happens go to court to find out if it will or will not hold up, if it does or does not raise your level of liability, if it does or does not affect your insurance carriers obligation to defend and pay claims.
By an Personal Umbrella Liability (does not cover any commercial exposure) policy that covers you if your sued for a car accident, a boat accident or a personal incident at or away from your residence. Then you have protection for most every exposure you have.
I have to ask, when do you stop getting waivers signed? When anyone rides in your car, anyone coming to dinner and having a few drinks, anyone getting on your boat.....it could be endless. "Who" do you draw the line at for requiring a signed waiver from? Your brother, mother, wife they can all sue you and according to my observations in most situations it's not a question of IF someone who can win a lawsuit against you will sue you but WHEN they do. (key word "most" not all)
Waivers are not the answer, right or wrong, valid or not. Get the insurance, have a good nights sleep and foget about the waiver idea.
PS yep, I'm no attny but I am an isurance agent.
Rpeiffer:
This is excellent advice. I tell all my clients that no matter how much protection I stack in front of them, they should ALWAYS buy plenty of insurance coverge.
A tricky issue that I've run across in aircraft is the definition of "commercial" operations. Even accepting reimbursement for fuel can categorize a pilot as operating a "commercial" venture. Check your policy to determine the definiition of "commercial" ventures if you're relying upon a non-commercial policy. However, the issue raised ay be moot in diving operations since the FAA doesn't care too much about boats unless they happen to have wings.
Do you blow your no deco limits just because DAN will pay for your ride to the chamber? Of course not. Call your legal department and ask whether they'd prefer to defend with a waiver or without one. Waivers are a deterrent to litigation, despite what the ill-informed may say about them. The insurers attorneys will thank you. Also, you don't have to pay for a waiver. Go to any PADI or NAUI or SSI shop and get a copy of their standard waiver--you sign one any time you take a class. Both PADI and NAUI have successfully enforced their waivers.
Besides, if the insurance company wins on summary judgment (like in the Murley case) because the dive operator had a waiver, the insurance company will not have to pay on a claim and will spend less on its lawyers (yay!). The fewer the claims paid, the better the insurance company can afford to pay its agents. And the better you're paid, the more you can dive. Therefore, good waivers = more diving for insurance agents. (Ignore the leaps in that syllogism)
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