State of Florida
What's wrong with this Waiver? Any legal eagles out there?
- Thread starter carltona
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State of Florida
I am not sure I understand the purpose of your post. Are you saying that you believe there is something wrong with it and want to see if anyone can spot it, or are you asking if there is anything wrong with it and hoping for expert advice?
fire_diver
Contributor
You are REALLY going to be better off retaining an attorney to answer these questions. All the advice in the world from SB won't help you in a lawsuit.
Dr. Lecter
Contributor
I don't even start reading boilerplate like that for less than $500/hour.
OP
This release was created and reviewed by 2 different lawyers but our insurance company said that it wasn't good. To answer your question, I have been told why it isn't good by the insurance company (not a lawyer) and I want to see if anyone else can tell my why they thinks its not good. I know if I ask 100 lawyers I will get at least 10 different answers and it really all depends on how good the lawyer suing us is...IMHO there is no right answer, only less wrong ones.
Actually, if you ask 100 lawyers, you'll probably get 101 answers.
But none of that matters..... Lawyers right or wrong, if the insurance company says it's not good enough, then it's not good enough, because it's THEIR lawyers who defend you when a problem arises. And you can do it their way, or they can leave you standing by yourself with your dingdong in your hand when there's a real issue. Whatever they said to fix, go ahead and fix. It's their checkbook that gets written when there's a problem.
But none of that matters..... Lawyers right or wrong, if the insurance company says it's not good enough, then it's not good enough, because it's THEIR lawyers who defend you when a problem arises. And you can do it their way, or they can leave you standing by yourself with your dingdong in your hand when there's a real issue. Whatever they said to fix, go ahead and fix. It's their checkbook that gets written when there's a problem.
OP
$500/hour I can tell youre in NYC and HONOLULU. I am only paying $375/hour but have used two different firms to review so for $750/hour I'm still in limbo. Again there is not right answer, just less wrong ones.
---------- Post added September 4th, 2014 at 03:37 PM ----------
I agree with that; its just that they want us to have 3 documents that people need to sign that basically say the same as this single document. A lot of paper and filing and record retention. And takes more time for customers to complete.
Maybe I need to ask some more insurance companies rather than lawyers
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At first blush, it doesn't have a separation clause, it doesn't have a venue clause, and I'm not enough of a lawyer to know if the font is properly sized or the bolds are in the right places or the all caps are in the right places, but your insurance company should be able to tell you what they don't like about it....
underH2Oman
Contributor
I am not a lawyer but at a quick glance a few things that would concern me are;
Not sure what the application you are wanting to use this in. It appears you are trying to use a single waiver for more than one application. (Passenger, snorkeler, certified diver, non certified diver/student) leaving a check box blank may increase liability. if they check just scuba diver and fall on the deck did they waive passenger liability??
If you are the landlord/ charter operator why are you naming all the other entities in your waiver? Why is it your job to protect them? If you are affiliated with others they may need you to get a waiver signed but including random entities on a waiver only opens them to being involved in a suit. even if they are not affiliated they will most likely be included in a suit if there names are on the waiver, and there is an incident.
You specify safe snorkeling distance is within voice range- whatever that is.
You want them to follow the instructions / dive briefing of the dive professionals but you said you were not affiliated with them prior to this, and that you do not control the activity. I think this contradicts each other.
there might be more but no time to look right now.
Not sure what the application you are wanting to use this in. It appears you are trying to use a single waiver for more than one application. (Passenger, snorkeler, certified diver, non certified diver/student) leaving a check box blank may increase liability. if they check just scuba diver and fall on the deck did they waive passenger liability??
If you are the landlord/ charter operator why are you naming all the other entities in your waiver? Why is it your job to protect them? If you are affiliated with others they may need you to get a waiver signed but including random entities on a waiver only opens them to being involved in a suit. even if they are not affiliated they will most likely be included in a suit if there names are on the waiver, and there is an incident.
You specify safe snorkeling distance is within voice range- whatever that is.
You want them to follow the instructions / dive briefing of the dive professionals but you said you were not affiliated with them prior to this, and that you do not control the activity. I think this contradicts each other.
there might be more but no time to look right now.
OP
Dean:
I agree that any forms MUST be complete to be valid.
Its a complicated situation overall. The Company is located at a very high end resort. The Company is in the business of providing snorkel, dive and sightseeing excursions. The company leases the boats from a boat leasing company. The company is a PADI shop. The Resort, The vessel leasing company, and PADI, ALL want it to be understood that they are NOT affiliated with the Company in an effort to remove themselves from any liability; they all want to be specifically mentioned in the release waiver. I agree that mentioning them gives direct access to who else might be involved even if there is a signed waiver of their involvement. (Everyone who doesn't want to be recognized raise your hand)
I am trying to get a simple universal release for excursions. People signing up for instruction will be signing all the usual PADI releases but when its time to go out on the boat, they need to sign an excursion release..often snorkelers will accompany divers on the same excursion. Happens all the time in the Keys on the shallow reef dives. Sometimes people snorkel over the Spiegel Grove while people are on the wreck, don't know why, there is nothing to see but their hot and want to swim. If on a 2 tank they will snorkel on the shallow dive or during surface interval. Sometimes divers decided to only snorkel on the 2nd stop so the release has to cover all events. Agree that the check box may limit liability if they decide to snorkel on stop 2. Will ask my lawyer.
---------- Post added September 5th, 2014 at 10:31 AM ----------
Thanks to everyone for your opinions. I understand you're not lawyers but as seasoned pros you have REAL experience with what happens and that's very valuable.
Respect.
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