Common Mistakes made by Outfitters and Insurance Companies

BACKGROUND

An eastern canoe livery operation was open during high water after Hurricane Floyd. A canoe livery is a hybrid between an Outfitter and a Rental operation. Courts have determined that because the Livery is in charge of the pickup and return of the guest as well as only allowing the rental of the canoe on one river, the livery is not a rental program but more closely aligned to an outfitter. Although customers rent canoes, the livery controls every aspect of the customer’s experience, as such, the livery owner is held to the standard of an outfitter.

At a canoe livery, the customer pays for a canoe, paddles, life jacket and transportation. The customer is fitted with a life jacket, handed a paddle and escorted to his/her canoe. At the end of the specified trip the canoeist pulls over and is driven back to the rental operation by the livery operator. In some cases, a customer is transported up river and floats back to the livery operation. The canoe livery controls where the activity takes place, the time the participant is on the river, and transportation to and from the river. Most liveries operate on class 0 or 1 rivers, rivers with current but no rapids.

Liveries are mainly located in the eastern United States, usually within 2-3 hours of large cities. Church, school and youth groups are a large part of their business. Most are family run businesses that have been in operation for twenty years or more.

Instruction is generally not provided and rarely requested. The rivers are calm. Sitting in the canoe and holding on, will normally allow you to arrive at the takeout unscathed.

Ten years ago, life jackets where an “add on” – provided if the customer requested one. Normally, customers were handed a floating seat cushion. Since then, the standard in the industry has evolved to giving every customer a life jacket which buckles or straps on, even though most states by law do not require them in canoes.

FACTS OF THE CASE

An elderly canoe trailer near Nashville, Michi...

Image via Wikipedia


1. Livery Statement: In this case, a recent storm had increased the river flow. The river was higher than normal but not closed. The customer called the livery the day before to see if the river was open. The customer was informed the river was high, but still open. The customer claims they were told the river was “safe.” Four customers arrived, rented two canoes for $54.00 and paid with a credit card. The livery transported the customers and the equipment upriver to float down to the livery office. The bus driver reiterated to the customers that the water was high.

The customers over-turned their canoes. They came back to the operation, cold, wet and mad. At the livery, the customers claimed they had lost a wallet containing $600.00 in cash, prescription glasses, and other items. They had minor scratches, but refused medical treatment.

Customer Complaint: Soon after the incident, the customers filed a complaint with a State Consumer Agency. In the complaint, they stated they had rented the canoes 2 days after Hurricane Floyd. While they were concerned the river might be too high, too dangerous or obstructed, they assumed the campground would have checked for these things and suspended their trips if the trip was too dangerous for their skill level. The customers informed the livery they were novices. They did not receive instructions or warnings from the livery.

According to the complaint: “In fact they [the livery] broadly proclaimed we could ‘float back’ in 4 hours. The river was so high that we were over our heads and the banks were under water. When we complained to the livery they admitted that no one had checked the river since the storm, yet they sent us out in these canoes…. They refused to refund our money for the rentals or compensate us for our losses…. They took a chance with our lives to make a lousy $54.00! … We could have easily been seriously injured or died as a result of their blatant negligence.”

Over a month later the customer sent a complaint letter to the livery. In the letter they claimed $840.00 in lost cash and one day of lost work because of a physician visit. The lost work was valued at $200.00. The customer also complained that “no advice or instructions were offered by your representative” concerning canoeing. They also claimed that no warning given about the high water conditions.

3. Documents: The livery’s brochure offers no information as to risk or whether a release must be signed. Another brochure advises that “If you are unable to swim – a life jacket will be available.” There is no risk or release information in the second brochure either. The only notice is about failure to return equipment.

The customers did sign a rental contract, which they relied upon in making their compliant. However, a rental contract is in fact and in law not a contract; it is a receipt. A receipt contains information about the renter and the return of the items rented, including life jackets. At the very bottom of this rental contract, there is a statement about returning equipment on time. There is also a line for the customer’s signature below the return policy.

4: Insurance Company: The customer’s complaint was forwarded to the livery’s insurance company. The insurance company wrote the complaining customer. [Starting the lawsuit!] The insurance company letter said in part:

“The insurance available to the Livery is liability insurance. Under this type of insurance payments are made on behalf of the insured for situations in which the insured would be at fault for damages. That is, if the matter were taken to court, they could be found responsible.”
“The duties owed you by the Livery are to: (1) Exercise reasonable care in the maintenance of the premises for your safety; (2) Warn you of any dangerous condition which are not open and obvious and of which the owner has knowledge; (3) Make a reasonable inspections of the premises and remedy any dangerous conditions the inspections reveals.”

The insurance company denied any claim.

5. Complaint: Approximately 2 months after the original rental, the customer filed a complaint in the Small Claims court requesting $1,408.00.

The Plaintiff in the Complaint stated as follows: “XXX Campground operates a canoe rental concession. On XX/XX/XX myself & three others rented a canoe for a pleasure trip. Defendant was asked in advance if the conditions were safe to allow canoeing. The stated condition was safe. All four of us were thrown from our canoes into the river as the result of surging waters well above normal state. I ____ lost of personal goods and work time. They were negligent in not checking conditions on river & allowing anyone to navigate the river.”

LIVERY MISTAKES

Canoes along the Au Sable River (Michigan), USA

Image via Wikipedia


Basic Mistakes: No properly written release. No pre-trip safety talk. No pre-trip National Livery Safety System video. No information in their brochure about risk, loss of property or that a release had to be signed.

Less obvious with respect to defending a lawsuit, but much more critical in preventing a lawsuit: No thorough knowledge of their insurance policy and no understanding of how their insurance company would react; not dealing with the complaint immediately; not dealing with the complaint when a complaint was filed with the state; knowing the customer was lying; and, basing their response on the “customer lied” rather than focusing the bigger problem.

The customer in two documents states they were told the river was safe. This guarantees a lawsuit and a loss for the livery or any outfitter. No river is safe. Life is not safe. By stating that your river, trip or activity is safe you are making a promise you cannot meet. It might have been safe for the previous 1 million people who went down the river, but the next person who goes down and may be injured and will not have a safe trip. Your promise of “safe” makes their suit for negligence golden. The outfitter denies making those claims. However, something was said that induced the people to come to the river, even after they called to confirm the river was open during high water.

A complaint based on the concept that a livery should check river conditions is rare – and relatively new. Some livery owners inspect the river each day; however, the vast majorities do not. There are definitely situations when an inspection is warranted, i.e., when a customer or third party notifies you of a problem, or if your canoes quit coming down river. At the beginning of the season and possibly after high water, you might also require a check. However, checking river conditions each day is probably not necessary.

To alleviate the need to check daily, a statement regarding your policy should be included in the release, along with language about who owns the river and what is and is not within your control. Similarly, a statement that Mother Nature controls the river – not the livery owner – should also be included. You might want to place a similar statement in your brochure and on your website.

Another complaint is the “lack of instruction.” The customer claimed they were not given adequate instruction to navigate the river. No liveries provide instruction except in answering basic questions. However, this area is changing with the use of the National Livery Safety System video. The NLSS video provides several minutes of instruction that would have helped the customer in this case. Possibly guests should be prompted to ask questions or if they have any questions, maybe even a sign at the check in that asks the customer to ask questions.

Another statement that stands out is the one about the water being over the customer’s heads. Either the customer was under the belief the river was shallow or someone had implied this was so. No customer should ever enter a river with the belief they can stand up in the river. Two reasons exist for this: (1) river bottoms change. A river can be six inches deep one day and the next be 20 feet deep; (2) Foot entrapments. Foot entrapments are a major cause of death in canoeing and rafting river deaths. A person walking along the riverbed steps in a hole and the current keeps them from being able to remove their foot. As such, they can be quickly shoved under the water and drowned. Here again, the NLSS video speaks about foot entrapments.

Brochures: Every brochure should do three things to prevent litigation: (1) the brochure should state the livery is not responsible for any injury or death. (2) The brochure should state the livery is not responsible for lost property. (3) The brochure should state the customer will be required to sign a release before undertaking the trip. Failure to inform your guests of the risks and the potential losses they are going to be taking on is weak at best and leads to lawsuits.

Releases: In this day and age, a properly written release is a must for any livery, outfitter or risk operation.

INSURANCE COMPANY MISTAKES

English: Canoeing on the Shenandoah River.

Image via Wikipedia


This is the scariest part of the entire situation. The insurance company in an effort to save a nickel could have cost themselves millions. They took legalese and attempted to use it to stop a lawsuit. A common technique of insurance companies is to deny coverage and provide the upset customers with the information for them to sue.

Fatal Insurance Company Error 1: No one had mentioned a lawsuit until the insurance company brought it up: “That is, if the matter were taken to court, they could be found responsible.” Let’s translate this for the common man: “You can’t get any money from the livery or us unless you sue us.” Small claims court is easy. It is easier still to stay up late and watch TV, make a toll free call in the morning and find an attorney to take on the arrogant insurance company. That is what those late night ads are all about.

Fatal Insurance Company Error 2: “The duties owed you by Livery are to: (1) Exercise reasonable care in the maintenance of the premises for your safety; (2) Warn you of any dangerous condition which are not open and obvious and of which the owner has knowledge; (3) Make reasonable inspections of the premises and remedy any dangerous conditions the inspections reveal.” The insurance company denied any claim. Let’s interpret this as a reasonable man would.

Reasonable Care: It was blatantly obvious to the customer that “reasonable” would have been for the livery to canoe the river and check it out. “Reasonable” legally means what every other outfitter is doing. The customer, however, does not care what every other outfitter is doing. They only care about what the one they paid did as compared to what they believe or were led to believe would happen.

Open and Obvious: To a competent canoeist, a strainer is obvious. To novice canoer’s, strainers may not be obvious until they are caught in one.

Owner has knowledge: The customer believed the livery should have had knowledge of the river conditions.

Reasonable Inspection: It was blatantly obvious that the customer believed it was reasonable to canoe the river.

Premises. The insurance company defined this as the land area being insured, probably only as that land owned by the livery. The customer defined this as everything the customer was upon while paying the livery for the day, the land, the river and the bus.

The legal paragraph quoted above said this to the customer: It was reasonable for the livery to check out the river. Once they did they should have told us more about the river.

The insurance company gave the customer the reason to go to court on a silver platter. While this letter might not afford the customer solid legal grounds in a higher court, in small claims court, they could hold up the insurance company letter and make an augment that will likely win. Because it is small claims court, the insurance company has no liability and will not pay to defend. The insurance company ducked out, costing the livery some money but it could have cost them both thousands.

More importantly, the insurance company told the customer to sue! The insurance company letter stated the only way they customer could recover was if they sued, so the customer did. In fact, they were told to sue by the livery’s insurance company.

Isn’t this the opposite of everything you expect from your insurance company and what your insurance company stands for? Aren’t your insurance companies supposed to assist you in stopping lawsuits, in making sure you do not go to court? Yet the insurance company sent a letter that told the angry customer that they could sue and get money.

INTERESTING LEGAL ISSUES

The customer made a claim for negligence in the complaint. If the judge finds negligence the judge can award more than the damages requested, kick the case to another court, or ignore the negligence claim.

ANALYSIS

The livery dodged a bullet; the insurance company dodged a bullet. Wet, cold angry customers came into the operation after their trip and could have been dealt with then. However, they were sent on their way, still wet, cold and angry. Angry customers, who feel their lives have been put at risk don’t stop complaining and don’t let go of their angry easily. These customers spent six months dealing with the anger. Each time they received an unsatisfactory answer, they kept going till they got an answer.

They never got the answer they wanted, “We’re sorry, here is your money back.” They got a lot more money, but that is the only thing the court could give them. See It’s Not Money.

The livery also got angry. A customer was stupid enough to take valuables down a river and then demanded compensation when they lost then. That anger increased when each time a claim was made, the value of the items lost increased.

Two angry people are now fighting each other. One because they felt they were treated badly, their lives put at risk. The other because they felt someone was trying to cheat them.

SUMMARY

English: A canoe in the BWCA

Image via Wikipedia


This case is a miracle. The customer, if they could prove they were told the trip was safe could sue for negligence, and probably win. This case could have been settled for $54.00 or less, instantly. It could have been settled easily at any stage along the way, until the insurance company became involved. Any settlement of less than $10,000 is probably a good deal.

  • The customer should never be told the river was safe.
  • The customer should have been told to leave their valuables in their car and their keys in the livery office. This should have been confirmed in writing in a release
  • It is better to have no money and somewhat satisfied customers rather than $54.00 and angry customers.
  • The conditions and acknowledgment of the river should have been in writing
  • The customers should have been informed in advance in the brochure or website that instruction is not provided; it is just a rental, not training.
  • The river should have been checked by the livery if not regularly, at least every time the river flow changes to look for problems, strainers and ascertain the river is still runable.
  • The letter sent by the insurance company was an invitation to sue the livery. The livery should have handled the problem because it is their customer. Insurance companies have no empathy and are better at starting lawsuits than they are at stopping them. The insurance company basically told the customers to sue.

Deal with your own problems because no one will deal with them as well as you will.

Videos

I don’t know of anyone making videos you can use to point out the risks and dangers of your sports. Stay in touch with Quietwater Films, who maybe is working on some.

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