Hi Philip,

 

Congards on being MoWind Pres.  I will help you in any way I can, just send me a note or call.  I think you will do a great job, and things should be much easier once we get these insurance and waiver issues behind us.

 

I totally agree with the RD page on the web site.  MoWInd has been doing that to some degree for a long time, it just never had much on the web site.  I have a lot of info on my computer.  Registration forms, Rules, race results, info on how to run an event, ect.

 

I totally agree on the waiver covering two separate entities.  The Contractual Exculpation and the Assumption Of Risk.  MoWind has nothing to lose and maybe a lot to gain by having a well written waiver such as the examples below.  I agree a generic waiver for all MoWind sanctioned events is best especially if used by all.

 

One suggestion:  either put these e-mail discussions on the web site via the MoWind Yahoo group, or included all the race directors and active MoWind members (those in on the phone conference).  The list above is incomplete.

 

I feel we are making good headway, we just need to stay at it till it's resolved.

 

Sincerely

 

P.S. thanks Scott for your waiver info.  Maybe we should check with your insurance carrier to see if he (John Sadler) would have better coverage.  Right now MoWind does not have insurance to do lessons at a regatta, that would be a great thing to have so we could teach at events and be covered.

Kevin Gratton
Wind Power Windsurfing & Kitesurfing
920-922-2550
www.windpowerwindsurfing.com

---

From: Philip S [mailto:ptsmantua@...]

Sent: Monday, January 12, 2009 11:55 AM

To: Scott Haas; Arnie Cleveland; Craig Bergh; Jeff Koeberl; Kevin Gratton; Philip Sage; Rod Clevenger; Ulf Jentler; gmccarthy@...
Subject: Re: FW: Sport Ins. Bulletin - Do Waiver/Releases Really Work?

 

Scott, et all

 

Thanks for the link and details.

 

I downloaded the general waiver and after having read the article on worthiness, I realize that the effectiveness of any waiver is a function of which state the event occurs in and how well it is written, but as a form of good practice and a method to elevate the potential for risks encountered by participating in a MOWIND event, we should probably adopt a standard waiver clause for use at all US MOWIND events.

 

I don't see a down side to MOWIND requiring the use of a consistent well written waiver in 2009.

 

Of course we still need insurance and ideally these 2 instruments should work together to afford the event and MOWIND the best possible protection.

 

My current thought is to review the samples from this site with our carrier to see if they would comment on the form, and any other input collectively we can obtain, then I would propose that we create a "Race Director's toolbox" on the web site and place the waivers there for download and use at our events. [cc: to Glenn McCarthy]

 

Better than protection is to make sure we continue to take appropriate safety measures at our events, and do not need it.

 

A vehicle for getting these resources tot eh RD is our web site. I propose we form a RD Toolbox and place relevant information in the tool box.

 

In addition to the waiver, if we want the MOWIND flags to be available to the Race Director, it makes sense to put something up about the flag loaner availability, how to borrow them and where to return them for the next event.

 

There is probably other RD relevant content we could decide to put up, to support and enhance consistency at the various events.

 

Attached is the Waiver with a few edits to make it MOWIND windsurfing friendly, and for general comments.

 

Also attached is a simple Lightning Safety document that would seem to make sense to put into a RD toolbox.

 

Comments?

 

Philip

 

US 287

2009 MOWIND President

 

On Mon, Jan 12, 2009 at 9:31 AM, Scott Haas <shaas@...> wrote:

FYI

As the subject of waivers came up during the phone meeting I've enclosed an
email from the Sadlersports.com insurance group I received about waivers.  I
believe the waiver I use for lessons I copied from them.  I believe they
have samples on their site, you have to give an email address to get at them

http://www.sadlersports.com/riskmanagement/index.html


The Web site for the MOWIND / agent Glenn McCarthy  is
http://www.david-agency.com/signal/index.htm

Scott


Amoka Wind Sports
4703 Lose, Monclova, OH 43542
cell: 419-290-1269
Scott Haas     shaas@...

-----Original Message-----
From: reply.2304298@... [mailto:reply.2304298@...] On Behalf
Of sport5@...
Sent: Wednesday, December 24, 2008 1:56 PM
To: Scott Haas
Subject: Sport Ins. Bulletin - Do Waiver/Releases Really Work?

Dear Scott:
Thank you for visiting our site in the past at:

http://www.sadlersports.com

Our site has a lot of FREE information on risk management that
sports administrators and volunteers can use in running their
organizations. I have enclosed information in this email. Please
read on...

A R E   W A I V E R / R E L E A S E S   W O R T H   T H E
P A P E R   T H E Y   A R E   W R I T T E N    O N ?

As a sports insurance specialist and risk manager, I often
wondered the answer to this question myself because of all the
contradictory information on this topic.  To satisfy my
curiosity, I interviewed the real authorities, the claims
managers from two leading sports insurance providers in the
US. After all, they actually settle and litigate hundreds of
these cases every year. In addition, I also interviewed one of the most
widely published and respected attorneys in the US on this topic.

A waiver/release agreement has two primary protective purposes: 1)
"Contractual Exculpation" which uses contract law principles
(waiver/release is a contract) to excuse a sports organization for its
simple negligence and 2) provides "real evidence" of the sports
organization's warning of inherent and other risks thereby triggering the
common law Assumption Of Risk (AOR) defense under tort law.

CONTRACTUAL EXCULPATION

A waiver/release is an exculpatory contract that attempts to excuse or
relieve a party, (I.E. - the sports organization) for injuries to a
participant that arise out of the known and unknown risks in an activity
including the inherent risks or which arise from the sports organization's
ordinary negligence. Waiver/release documents are interpreted by the courts
using contract law principles; this is why it is so important to have a
well drafted waiver/release prepared for your sports organization.

A waiver/release will only by upheld if all of the following conditions are
satisfied: 1) the injury arises from risks stated in the waiver/release
contract (here we will often see language of "known and unknown risks" and
discussions of the inherent risks of an activity) or from the sports
organization's simple negligence; 2) the waiver/release is properly drafted
or worded according to the law in the state of the sports organization; and
3) it does not violate any state laws or public policy. If all of these
conditions are met, the use of a waiver/release may result in the lawsuit
being dismissed on Summary Judgment. Summary Judgment is important because
it concludes litigation early in the process which can drastically reduce
legal defense costs.

It is important to note that even if Summary Judgment dismissal is
achieved, the legal defense costs will still be too expensive for most
sports organizations and related directors, officers, employees, or staff
to pay out of pocket. For this reason, a waiver/release is never a
substitute for purchasing General Liability insurance.

CONTRACTUAL EXCULPATION-- ADULT IS INJURED PARTY

The law of adult waiver/releases varies from state to state. As far as
adult injuries are concerned, waiver/releases can be very effective and
result in lawsuit dismissal in most states as long at the three conditions
listed above are satisfied.

States where recreational waivers will not be enforced by the courts:
Louisiana, Montana, and Virginia.

States with strict interpretations of contract language (they will be
examined carefully and are circumstances where they won't be upheld):
Alaska, Arkansas, Arizona, California, Connecticut, Delaware, Hawaii,
Indiana, Kentucky, Maine, Mississippi, Missouri, Nevada, New Hampshire, New
Jersey, New York, Pennsylvania, Utah, Vermont, and Wisconsin.

States with more moderate interpretations of contract language (the
decisions have been generally less strident than the strict interpretations
in other states): Colorado, D.C., Florida, Idaho, Illinois, Iowa,
Minnesota, New Mexico, North Carolina, Oklahoma, Oregon, South Carolina,
South Dakota, Texas, Washington, West Virginia, and Wyoming.

States with fairly lenient interpretations (the decisions show good
acceptance of waiver/releases and apply fewer standards to the language
used): Alabama, Georgia, Kansas, Maryland, Massachusetts, Michigan,
Nebraska, North Dakota, Ohio, and Tennessee.

States where the outcome is not predictable because no case law or
statutory authority: Puerto Rico and Rhode Island.

CONTRACTUAL EXCULPATION-- MINOR IS INJURED PARTY

The law of minor waiver/releases also varies from state to state. However,
unlike adults, minors are not legally "competent" (in other words aren't
seen under the law as capable) to enter into a binding contract such as a
waiver/release. Therefore, the only way for a minor to be bound for
purposes of contractual exculpation would be through a parent's signature
on the waiver/release. Even then, most states will not allow a parent to
contractually waive their minor children's right to sue for a sports
related injury. This is very much a developing area of the law that is
undergoing constant change. What can be said is as follows:

The same three conditions that apply for upholding adult waiver/releases
also apply to parental waiver/releases : 1) the injury arises from stated
risks including inherent risks or from the sports organization's ordinary
negligence; 2) the waiver/release is properly drafted; and 3) it does not
violate any state laws or public policy. In addition, the language in the
wavier/release will be scrutinized under the same degree of strictness as
indicated under adult waiver/releases above on a state by state basis.

At the current time, only the following ten states may uphold parental
waiver/releases if all of the three conditions listed above are satisfied
and subject to the same degree of state contractual scrutiny as listed
above : California, Connecticut, Georgia, North Dakota, Wisconsin, Florida,
Massachusetts, and Ohio. However, it is believed that the trend for the
acceptance of parental signed waiver/releases is gaining ground in other
states.

ASSUMPTION OF RISK (AOR) AS A DEFENSE TO NEGLIGENCE

The second protective purpose of a waiver/release is to trigger the
Assumption Of Risk Defense under tort law  in other words  to provide
evidence that the sports organization gave adequate warnings of the risks
so that an argument can be made that the participant assumed those risks.

In order to trigger the AOR defense to a negligence lawsuit, the
waiver/release should contain the proper assumption of risk language;
though you can also demonstrate assumption of risk by having evidence
(usually in the form of other witnesses) of other types of good warnings
such as signs, brochures, verbal instructions or safety briefings, etc.
With respect to the waiver and release, it should specifically mention the
types of risk that are assumed (known and unknown) as well as worst case
injury scenarios (permanent disability and death). It is also important to
note that often times courts will only apply the AOR defense to inherent
risks of the activity. Inherent risks are those risks that the organization
will simply not be able to control, regardless of their best efforts (ex:
in baseball, being hit by a pitched ball).

With minors and the AOR defense, you should note that the minor must be
capable of understanding the risks and must sign the assumption of risk
portion of the waiver/release. Just like with adults, you can demonstrate
assumption of risk by both the language in the waiver/release and by the
verbal instructions or safety briefings given. Many courts have ruled that
a seven year old child is capable of understanding the inherent risks
involved in an activity if adequately explained.

A successful AOR defense may or may not result in having a lawsuit
dismissed on Summary Judgment. If not on Summary Judgment, this defense can
come into play much later in the legal proceedings when evidence is being
introduced before a trier of fact. I am told by claims adjusters that the
threat of this defense is probably worth a 35% reduction in damages or
claims paid out in many cases. A 35% reduction is significant on a large
case. As a result, waiver/release agreements are definitely worth the paper
they are written on even if they don't result in the lawsuit being
dismissed as a matter of contract law.

You might be asking yourself what constitutes a "well drafted"
waiver/release.  Quite simply, it means that virtually every
phrase in every sentence was specifically written to counter a
court case that found a pitfall that resulted in the
waiver/release being thrown out.  There are at least fifteen
common pitfalls that must be avoided.

If you're interested in receiving a sample waiver/release that
was written to avoid these pitfalls, call Sadler & Company at 1-
800-622-7370 or visit our website at http://www.sadlersports.com
and print from our Risk Management Section.

John Sadler
    Sports Insurance Specialist
    Sports Risk Manager
    Licensed Attorney
    Founder of National Sports Lawsuit Protection Association

PS:  If you haven't checked out our sports insurance prices
lately, please do so at http://www.sadlersports.com as many of
our programs have had substantial rate reductions.  In addition,
many coverages have been enhanced for no additional cost!



Copyright 2002-2008, Sadler & Company, Inc.  All Rights Reserved.



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