Rink

O ne of the best things about my job is the wide variety of people I have the opportunity to meet. I recently was asked to give a presentation to the American Paddle Sports Industry at their annual conven- tion in Jamestown, Kent. As the discussion launched into the intri- cacies and platitudes of policy language and endorsements, it didn't take me long to realize this stuff is better than a double dose of Ambien. Unfortunately, the majority of our clients don't read or understand insurance documents and they end up being filed away annually in a holistic ritual. The discussion quickly shifted gears to liability waivers, their usage and their enforcement. Wow, did this wake the dead! Liability waivers are commonly used documents which release a party from legal liability arising out of claims, injuries and damages as a result of partici- pating in an activity. They are also known as exculpatory or hold harmless agree- ments. Whatever we want to call them, we've all seen these and we know what our intent is. I could write a book, per- haps two on this subject and the pitfalls therein. We have a tough time under- standing a claim or lawsuit arising out of an injury which occurred when a partici- pant was playing ice hockey. It happens and, "It's all fun until someone gets hurt." Usually seriously. Liability release and waivers try to give us that warm and fuzzy feeling — that is fine with the world and we are insulated. The simple truth of the matter is that feeling can be false, ill- advised and very short-lived. Liability waivers • Waivers should be reviewed by per- sonal counsel and/or the insurance carrier to ensure the proper language is being used and the parties are being released from liability. The release language must be clear, concise and the intent of the par- ties unambiguous. Otherwise it can be construed against the party who wrote it. • A release waiver should expressly acknowledge the signor knows of, under- stands and appreciates the risks that are inherent to the activity (Express Assumption of the Risk). It should be clearly stated that injury and/or death can result from participating and that such participation in the activity is voluntary. • The waiver should include an indem- nification clause, meaning the signor agrees to defend and indemnify for all claims and injuries arising from the activity. • Understand waivers involving minor children under the age of 18 are likely to be unreliable. Minors are unable to con- tract and sign binding legal documents. Judges don't like to throw children, wid- ows and orphans out of court, particularly in plaintiff oriented jurisdic- tions during election years. It's not going to happen. • Don't expect your waiver to insulate you from injuries or claims that hap- pen on the parking lot, or slip and falls in the rest- rooms. Premises liability claims are very likely to be unenforced for claims of this nature. • Original waivers should be filed, stored and maintained for a minimum of one year beyond the state statute of limitations for which an action can commence. A lost waiver or one you can't produce is worthless. • Keep in mind signed waiver agree- ments in plaintiff oriented jurisdictions such as West Virginia, South Florida, Philadelphia, New York City boroughs, Cook County, Illinois and others are vir- tually impossible to be validated in court. Waivers are frequently viewed as void when it comes to public policy, meaning they become yesterday's newspapers. Don't expect too much out of a waiver and don't let it mislead you into thinking you're bullet proof from liability. In the real world, judges have a difficult time booting an injured party out of court. Adherence to good record keeping, log books, maintenance, inspection, repair and security policies and procedures work hand in hand with properly worded waiv- er documents in managing risk and mini- mizing exposure. ★ Lance C. Brenn is a Claims Litigation Analyst for K&K Insurance Group. insurance tales ■ Manage your risk from real-world insurance stories. 50 R INK MAGAZ INE May/june 2010 STARrinks.com Don't Let Your Waiver Send You Up The River by LANCE C. BRENN Make sure your signage is obvious and easy to read.

• Cover