I see franchises or businesses with multiple locations using the same release at all locations. You may be losing out on an opportunity, worse setting yourself up to lose 90% of the time.Posted: January 31, 2018 Filed under: Jurisdiction and Venue (Forum Selection), Release (pre-injury contract not to sue) | Tags: Jurisdiction, Jurisdiction and Venue (Forum Selection), Jurisdiction and Venue Clause, Release, Venue, Waiver Leave a comment
If one of the states you have a location has better laws supporting the use of a release than your home state, change the jurisdiction and venture clause to that state. On top of getting better release law you’ll be less likely to have a jurisdiction and venue fight. If your jurisdiction and venue clause have no relationship to the defendant, the accident or location, you are probably going to have one anyway.
Jurisdiction and venue clauses are important in a release. Plaintiff’s are working harder at voiding the jurisdiction and venue clause in releases when they have little or no real relationship with where the accident happened.
If you are writing releases for a business with multiple locations, you might look at the jurisdiction and venue clause in each location in relation to the law of the location and the chances the plaintiff will be successful in his or her attempt to void the jurisdiction and venue clause.
I argue, plead and write a lot about jurisdiction and venue clauses. They are the second most important clause in a release after the negligence clause. (See Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.) A venue clause states where any lawsuit is going to be held, and the jurisdiction identifies the law to be applied. These sections or clauses have to have a relation to the location of the accident. (See Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.)
At the same time, not all states support releases the same way. Several states do not allow the use of releases. (See States that do not Support the Use of a Release.) Some states allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) And every state treats releases differently. Some making it much harder to write a release correctly then others.
On top of that you want to create a barrier, if possible, to a lot of litigation by making a lawsuit difficult for the plaintiff. Making the plaintiff find an attorney and litigate in a state where they do not live makes filing a lawsuit much more difficult. Many plaintiffs will spend years trying to sue in their own state. In Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498, the plaintiff’s filed a lawsuit in Texas in 2001 and six years later the Texas Supreme Court dismissed it and sent it to Arizona where the trip occurred, and the accident happened.
Jurisdiction and venture clauses are critically important in a good release.
At the same time, cookie-cutter law is not good, even in some releases. In reviewing the reports of a fatality, the other day, I found the business release on line. The release had a jurisdiction and venue clause which sent the lawsuit back to California where the company office was. The fatality occurred in Colorado. Colorado and California law on releases is similar, both are supportive of releases and both allow a parent to sign away a minor’s right to sue.
The company had more than seventy facilities in North America, including several in states where releases are void. The home office is based in California, although that took some work to find, with a Utah area code for a phone number. On a hunch, I checked with the Utah Secretary of State and found several companies and corporations with the same name. Guessing, either the business started in Utah and moved to California or the business is based in Utah and using an office in California for the basis for jurisdiction and venue in its release.
If the latter is the case, the lawsuit, even with the release, it would be easy to bring suit in Utah and argue the lawsuit should be there.
Worse, the operations are franchised from a Utah or California home office, and the business is owned by a different group of entities or people within each state. Colorado has several companies with the name. Alternatively, every time the company opens a location it creates an LLC for each location.
Each of these creates the possibility of a good argument for voiding the jurisdiction and venue clause in the agreement. There is a better relationship between the parties, plaintiff and defendant, and more reasons to sue where the accident happened.
Either way, as you can see there are numerous ways to argue, successfully or not that the jurisdiction and venue clause should be ignored in a specific case.
What does this lead too? If the plaintiff’s attorney does a little investigation, they can start and make a good argument that the jurisdiction and venue clause should be in a different location, then where it says. Those arguments would be:
- The location of the jurisdiction and venue clause has nothing to do with the location of the accident or the defendant’s location. (See Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.)
- The location of the defendant is not where the jurisdiction and venue clause states the defendant is located. The defendant is the company created in and located in the state where the accident happened. (The franchise or each operation is a separate LLC argument.)
- The defendant is using this state for its jurisdiction and venue clause to take advantage of good state law on jurisdiction and venue or to avoid bad law on releases. (The common argument that is made.)
Whatever reason you need to write the jurisdiction and venue clause in a release, now days it has to have a greater relationship with the accident location because it will come under greater scrutiny that it did a few years ago.
Blanket cookie cutter releases will not work in the future. Plaintiffs have determined new ways to force possible defendants to come to their location to defend a lawsuit.
Make sure you understand the law of the state where you think you want the lawsuit or the law of the state where the lawsuit could be and pick the one with the greatest chance of success based on the law concerning releases and the issues of jurisdiction and venue.
What do you think? Leave a comment.
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