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Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping

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New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


2nd Annual Adventure Trainer’s

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WHAT:

The 2nd Annual Adventure Trainer’s Lab is an advanced level conference that offers professional development and continuing education opportunities to TRAINERS working in the “traditional use” and “amusement device” fields of…challenge course, zip line, canopy tour and adventure parks.

In 2017, the first ever Adventure Trainer’s Lab attracted an impressive and diverse group of trainers. Overall, the response was very positive and the closing debrief provided us with feedback to enhance the quality and value of the conference.

It is our intention that The Adventure Trainer’s Lab be responsive to and evolve based on the input of all trainers.

WHY:

Adventure trainers are largely responsible for the growth and efficacy of these experiential modalities yet opportunities for professional development and continuing education are rare. Thus, leaving many adventure trainers at a loss for resources or a body of peers to engage in healthy dialog and debate.

Until now…The Adventure Trainer’s Lab seeks to positively influence the safety, efficacy and sustainability of the adventure and experiential fields by supporting the development and evolution of trainers.

HOW:

The format for The Adventure Trainer’s Lab is a 3-day gathering combining prepared sessions / speakers with the dynamic and responsive nature of “Open Space Technology”.

“Open Space Technology” is the epitome of experiential education as it engages participants fully in the content, direction and flow of the conference.

In the months leading up to the conference, we are seeking your input into the content you need, presenters you value and your ideas of how to make the event highly productive and meaningful.

Help us to create the conference that will serve you.

WHO:

If you train facilitators and guides in the “traditional use” and/or “amusement device” fields of…challenge course, zip line, canopy tour and adventure parks, then…this conference is for YOU!

You may work for a…school district / university, camp, therapeutic facility, resort / retreat center, government agency, commercial adventure program, or for a professional vendor, etc.

Or, you have / are pursuing an advanced degree in education or training.

Or, you provide products, services or training to trainers (and/or) facilitators.

DISCOUNTS:

New in 2018…the ALUMNI RATE! You are eligible if you attended The Adventure Trainer’s Lab in 2017.

Alumni rates ALSO apply to employees of an organization that have sent participants to a previous Adventure Trainer’s Lab.

BIRDS OF A FEATHER FLOCK TOGETHER:

Join us December 3-5, 2018 at the Renaissance Boulder Flatiron Hotel as we…exchange ideas, share best practices, build our knowledge, develop testing rubrics, debate higher levels of certification and find new trainer employees / employers. Come with your questions, your knowledge and your passion.

Let’s create a learning community of adventure trainers and raise the bar on facilitation and training for recreation, education and therapy!

For complete conference information and registration, click here

EARLIER Bird registration ends…September 28, 2018

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Legal, Risk Management & Insurance Issues facing the Outdoor Recreation Industry as, I see it.

As the industry grows and matures, it is attracting litigation. Additionally, the industry is marketing and attracting more people with no real knowledge of the risk and as such are more willing to sue.

The Outdoor Recreation Industry is facing a lot of new as well as the same-old problems they have in the past. Two components are creating the problems. Most of the industry does not have trade associations looking out after their member’s interests, and the industry keeps shooting itself in the foot.

Overall, here are the big issues I see the industry facing in 2018.

  1. There has been a substantial increase in the number of lawsuits in the industry. I used to find 20 new lawsuits a year and had another 250 stretching back into the 1930’s I could write about. I figured I could write for about ten years and cover 90% of the issues. Now I’m finding 250 a year. I’m never going to run out of lawsuits to review and write about.
    1. That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
      1. Zip Lines
      2. Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
      3. Skiing (but mostly skier v. skier collision cases) If you can’t sue the ski area, sue your friend you were skiing with or someone you never met.
    2. There are some industries where the number of lawsuits is dropping.
      1. Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
      2. Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
  2. The Plaintiff’s are getting more sophisticated and working harder at attacking releases. Prior to 2010 occasionally, you would see plaintiff’s attempting to have the release thrown out of the litigation. Now days you see every lawsuit attacking the release and a few of them winning. Enough plaintiffs are winning that it is encouraging other plaintiffs to sue and try to void the release they signed.
  3. We still have a large contingent of people attempting to try to make it harder to sue. However, this ultimately making it easy to win a lawsuit against the industry. It’s like building a terrific trench system during WWI. The trench worked perfectly unless you were overran and then your perfect trench becomes the best defense to your arguments or attacks.
  4. There are more product liability lawsuits, and more lawsuits based on the failure to properly understand or use a harness. Most of these are occurring in the climbing wall industry, a few in the ropes’ course industry.
  5. Individual sports are having no lawsuits still. However, that will soon change. As a recreational area grows in popularity a trade association or organization believing they can get good PR or increase their membership is creating standards, classes and ways to sue that never existed before. Soon you will have a way to sue a belayer while climbing on a wall or on the rock because a standard was created. The standard is the duty, that if violated by the belayer makes the belayer liable.
  6. California Proposition 65 is going to make life miserable for manufacturers.
  7. None of the trade associations are working to help the industry learn and stay away from litigation. No one announced the changes to California Proposition 65. However, that could cost companies in the recreation industry millions if not more. Threatening letters have already started to arrive in manufacturer’s mail boxes demanding money because the manufacturer did not follow or even know the rules.

This is not a complete list, but it is a lot. I’ll expand on some of these ideas through the year.

Hopefully, I’m wrong.

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

   

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



Poorly written jurisdiction and venue clause places the defendant in jam when the defendant counter claims for attorney fees and costs.

This case was based on a zip-line accident. The release signed by the plaintiff had a forum selection clause, also known as a jurisdiction and venture clause. However, the clause was limited way so that when the defendant brought a counterclaim for attorney fees, it negated the forum selection clause.

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

State: Massachusetts, United States District Court for the District of Massachusetts

Plaintiff: Josephine Pittman

Defendant: Zoar Outdoor Adventure Resort, Inc.

Plaintiff Claims: gross negligence and fraudulent inducement concerning a participant agreement and waiver of liability

Defendant Defenses: Release

Holding: Basically, for the Plaintiff

Year: 2017

Summary

This case was based on a zip line accident at the defendant’s location. The plaintiff filed the case in state court in Massachusetts. The defendant then removed the case to Federal District Court because the parties were from two different states.

After removal, the defendant filed a counterclaim for fees and costs as per the release. The plaintiff filed a motion to dismiss the counter claim because it was filed in the wrong court. Meaning the jurisdiction and venue clause was written in such a way it only applied to the complaint and not the counterclaim.

Facts

The facts concerning the actual accident are nowhere in the decision. This decision is based solely on the issues of jurisdiction and venue.

This opinion is based upon a motion to dismiss filed by the plaintiff, to dismiss the counter claim of the defendant for attorney fees and costs for filing the complaint to begin with.

No decision on the facts was made as of the writing of this decision.

Analysis: making sense of the law based on these facts.

The court did a thorough analysis of forum selection clauses in its review of the issues.

In that jurisdiction, forum selection clauses, also known as jurisdiction and venue clauses, are valid and usually upheld. “Forum selection clauses “‘are prima facie valid and should be enforced.'”

There are two issues the court must review to determine if the forum selection clause should be followed.

Before giving effect to a forum selection clause, a court must address certain threshold is-sues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it.

There are two types of forum selection clauses, mandatory and permissive. Permissive forum selection clauses allow the parties to change the jurisdiction and venue. Mandatory clauses require the court to follow the contract and change the venue and apply the jurisdiction identified in the forum selection clause.

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'”

Not only is the language in the clause used to determine if it is permissive or mandatory, but also if the forum selection clause refers to a venue. Mandatory forum selection clauses include a required venue.

The next part, whether the clause governs the claims allegedly subject to the clause was the major issue. Consequently, the language of the clause was the difference. The clause stated: “”[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement

The court interpreted the clause to only apply to the lawsuit brought by the plaintiff, as the clause states. The court found the forum selection clause did not apply to the counterclaim filed by the defendant against the plaintiff.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, here is where the decision starts to twist, and the defendant is saved, but only saved by accident.

The plaintiff in filing their motion to dismiss the counterclaim did not also move to change the venue or send the case back to state court. The plaintiff’s claim was going to be litigated in Federal District court where it has been moved.

The court implies if the plaintiff had moved to dismiss or change venue the court might have been inclined to do so. As it was, the forum selection clause only applied to the plaintiff’s claims against the defendant. The court claim was not subject to the clause.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, since the majority of the lawsuit would be based on the plaintiff’s complaint, it would be jurisdictionally economical to keep both cases together. Furthermore, the plaintiff claimed in her defense to the release that she was fraudulently induced to sign the release. If she prevailed on that claim, the forum selection clause would not apply because the contract, the release would not be valid.

If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.

So, until the trial is over on the plaintiff’s complaint and the validity of the plaintiff’s defense to the release, the motion to change the venue because the forum selection, clause did not apply to the country claim was denied.

The court dismissed the plaintiff’s motion to dismiss the defendant’s counterclaim.

So Now What?

Here again, not understanding the breath of a lawsuit when writing a release almost cost the defendant. Judicial economy, not wasting the court’s time and money or either of the parties’ time and money is what saved the day.

If you need your release written properly to cover the issues, you have, the people you market too and the activities you offer, please contact me.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

    

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Josephine Pittman, Plaintiff, v. Zoar Outdoor Adventure Resort, Inc., Defendant.

Civil Action No. 16-30182-MGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2017 U.S. Dist. LEXIS 107839

June 9, 2017, Decided

June 9, 2017, Filed

SUBSEQUENT HISTORY: Adopted by, Motion denied by Pittman v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 106873 (D. Mass., July 11, 2017)

COUNSEL: [*1] For Josephine Pittman, Plaintiff, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT; Timothy P. Wickstrom, Wickstrom Morse, LLP, Whitinsville, MA.

For Zoar Outdoor Adventure Resort, Inc., Defendant, Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA; Michael W. Garland, Burns & Farrey, P.C., Worcester, MA.

For Zoar Outdoor Adventure Resort, Inc., Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA.

For Josephine Pittman, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT.

JUDGES: KATHERINE A. ROBERTSON, United States Magistrate Judge.

OPINION BY: KATHERINE A. ROBERTSON

OPINION

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO DISMISS COUNTERLCLAIM FOR IMPROPER VENUE

(Dkt. No. 11)

ROBERTSON, U.S.M.J.

I. Introduction

On or around October 19, 2016, plaintiff Josephine Pittman (“Plaintiff”) filed a complaint in the Trial Court of the Commonwealth of Massachusetts, Superior Court Department, Franklin County (Dkt. No. 1-1). In summary, the complaint alleged that Plaintiff suffered serious injuries as a participant in a zip [*2] line canopy tour on the premises of defendant Zoar Outdoor Adventure Resort, Inc. (“Defendant”). Defendant removed the case to this court pursuant to 28 U.S.C. § 1441(a), which provides for removal of actions where the parties are diverse (Dkt. No. 1). In this court, Defendant answered the complaint and asserted a counterclaim against Plaintiff for fees and costs (Dkt. No. 3). Presently before the court is Plaintiff’s Motion to Dismiss Counterclaim for Improper Venue (“Plaintiff’s Motion to Dismiss”), which was referred to the undersigned for Report and Recommendation by the presiding District Judge (Dkt. No. 27). For the reasons set forth below, the court recommends that Plaintiff’s Motion to Dismiss be denied.

II. Relevant background

Plaintiff’s initial complaint (“Complaint”) asserted claims of gross negligence (Count I) and fraudulent inducement concerning a participant agreement and waiver of liability (“Participant Agreement”) signed by Plaintiff as a condition of her participation in the zip lining activity (Count II) (Dkt. No. 1-1).1 In its response to the Complaint, Defendant asserted a counterclaim for contractual indemnification based on the contents of the Participation Agreement signed by Plaintiff. [*3] 2 Defendant attached a copy of the Participant Agreement as Exhibit A to Defendant’s Answer to Plaintiff’s Complaint, Counterclaim and Claim for Jury Trial (Dkt. No. 3).

1 With leave of court, Plaintiff filed an amended complaint on June 5, 2017 (“Amended Complaint”), adding a claim of ordinary negligence and claims of loss of consortium on behalf of her husband, Ronald Pittman, and her daughter, Lillian Pittman (Dkt. No. 34).

2 The formal title of the document is “Participant Agreement, Release and Acknowledgement of Risk.”

In relevant part, the Participant Agreement provides as follows:

2. I expressly agree to and promise to accept and assume all of the risks existing in this activity [expressly including zip line canopy tours]. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Zoar from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of Zoar’s equipment, vehicles, facilities, or premises before, during, and after this activity including any such claims which allege negligent acts or omissions of Zoar.

4. Should Zoar or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

. . .

6. In the event that I file a lawsuit against Zoar, I agree the Venue of any dispute that may arise out of this agreement [*4] or otherwise between the parties to which Zoar or its agents is a party shall be either in the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts. I further agree that the substantive law of Massachusetts shall apply in that action without regard to the conflict of law rules of that state.3

(Dkt. No. 3-1 at 2).

3 The court takes judicial notice of the fact that a “town of Charlemont Justice Court” does not exist in Charlemont, Massachusetts. The parties agreed at oral argument that the Superior Court in Franklin County is the venue designated by the forum selection clause.

Plaintiff’s Motion to Dismiss is based solely on the forum selection clause in paragraph 6 of the Participant Agreement (Dkt. No. 11).

III. Standard of Review and Applicable Law

In this circuit, a motion to dismiss based on a forum selection clause is treated “as a motion alleging the failure to state a claim for which relief can be granted under Rule 12(b)(6).” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387 & n.3 (1st Cir. 2001)). This court “must ‘accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the [counterclaim] plaintiff’s favor, and determine whether the [counterclaim], so read, limns facts sufficient to justify recovery on any cognizable theory.'” Id. (quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998)). A court considering a motion to dismiss “may properly consider only facts and documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008). In the present [*5] action, Defendant has attached the Participant Agreement in support of its counterclaim, and neither party disputes the authenticity of the document. Accordingly, in ruling on Plaintiff’s Motion to Dismiss, the court may appropriately take into account the contents of the Participant Agreement, including the choice of forum provision which is the basis of that motion. See Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (document sufficiently referred to in the complaint, the authenticity of which is not disputed, properly may be considered on a 12(b)(6) motion).

It remains an unsettled question in this circuit whether “‘forum selection clauses are to be treated as substantive or procedural for Erie purposes.'” Rivera, 575 F.3d at 16 (quoting Lambert v. Kysar, 983 F.2d 1110, 1116 & n.10 (1st Cir. 1993)). This is a question that the court need not address. See id. The forum selection clause in the Participant Agreement provides that Massachusetts law shall apply to legal actions arising out of the agreement or otherwise between the parties (Dkt. No. 35-1 at 1, ¶ 6). This court should, therefore, look to Massachusetts law for principles bearing on interpretation of the Participant Agreement. That said, there is no conflict between federal common law and Massachusetts law regarding the enforceability and interpretation [*6] of forum selection clauses. See generally Boland v. George S. May Int’l Co., 81 Mass. App. Ct. 817, 969 N.E.2d 166, 169-74 (Mass. App. Ct. 2012) (relying on federal and Massachusetts law for purposes of interpreting a forum selection clause). Accordingly, it is also appropriate for this court to apply federal common law in ruling on the enforceability and interpretation of the Participant Agreement’s forum selection clause. See Rivera, 575 F.3d at 16-17; see also OsComp Sys., Inc. v. Bakken Express, LLC, 930 F. Supp. 2d 261, 268 n.3 (D. Mass. 2013) (relying on federal common law where the parties did so; noting that there do not appear to be material discrepancies between federal and Massachusetts law regarding the validity and interpretation of forum selection clauses); Summa Humma Enters., LLC v. Fisher Eng’g, Civil No. 12-cv-367-LM, 2013 U.S. Dist. LEXIS 856, 2013 WL 57042, at *3 (D. Me. Jan. 3, 2013) (court would apply Maine law to interpretation of forum selection clauses; because Maine law was co-extensive with federal law concerning the interpretation of a forum selection clause, the court would also apply federal common law to the interpretive task).

IV. Analysis

Notwithstanding citations to cases ruling that forum selection clauses can constitute a waiver of a defendant’s right to remove a case to federal court, Plaintiff has not moved for dismissal or remand of this case to the state court where it was filed. Rather, Plaintiff’s Motion to Dismiss is limited [*7] to seeking dismissal of Defendant’s counterclaim. On this point, Plaintiff contends that this court is an improper venue for a counterclaim alleging contractual indemnity because the claim is a dispute between the parties that arises out of the Participant Agreement. Plaintiff notes that, in setting forth the designated venue, the forum selection clause uses the word “shall,” which, Plaintiff argues, connotes a mandatory choice of venue which is binding on Defendant (Dkt. No. 12). Defendant opposes Plaintiff’s Motion to Dismiss on the ground that the forum selection clause was binding on Plaintiff, but by its terms, did not constrain Defendant’s choice of venue for any claims it had against Plaintiff arising from the Participant Agreement (Dkt. No. 15). In the court’s view, Defendant has the better of the arguments.

Forum selection clauses “‘are prima facie valid and should be enforced.'” Silva, 239 F.3d at 386 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). “A forum selection clause ‘does not divest a court of [the] jurisdiction it otherwise retains, rather it constitutes a stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise jurisdiction.'” Provanzano v. Parker View Farm, Inc., 827 F. Supp. 2d 53, 58 (D. Mass. 2011) (quoting Silva, 239 F.3d at 389 n.6). Before giving effect to [*8] a forum selection clause, a court must address certain threshold issues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it. See id.

1. The Forum Selection Clause is Mandatory as to Claims to Which it Applies

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'” Rivera, 575 F.3d at 17 (quoting 14D C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)). “The use of words such as ‘will’ or ‘shall’ demonstrate parties’ exclusive commitment to the named forum.” Provanzano, 827 F. Supp. 2d at 60 (citing Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12 (1st Cir. 2001)). Moreover, “[a] crucial distinction between mandatory and permissive clauses is whether the clause only mentions jurisdiction or specifically refers to venue.” Arguss Communs. Group, Inc. v. Teletron, Inc., No. CIV. 99-257-JD, 1999 U.S. Dist. LEXIS 18085, 2000 WL 36936, at *7 (D.N.H. Nov. 19, 1999). In the present case, “[b]ecause the [Participant] Agreement uses the term ‘shall’ to describe . . . the commitment to resolving . . . [certain] litigation [*9] ‘in [either the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts,’] [and because it refers to ‘venue,’ not just ‘jurisdiction,’] it is a mandatory clause.” Xiao Wei Yang Catering Linkage in Inner Mongolia Co., LTD v. Inner Mongolia Xiao Wei Yang USA, Inc., 150 F. Supp. 3d 71, 77 (D. Mass. 2015). Indeed, the parties do not appear to dispute that the forum selection clause in the Participant Agreement is mandatory as to claims to which it applies.

2. The Forum Selection Clause Does Not Apply to Defendant’s Counterclaim

Whether to enforce a forum selection clause depends on whether the clause governs the claims asserted in the lawsuit. See Provanzano, 827 F. Supp. 2d at 60 (citing Huffington v. T.C. Grp., LLC, 637 F.3d 18, 21 (1st Cir. 2011)); see also Pacheco v. St. Luke’s Emergency Assocs., P.C., 879 F. Supp. 2d 136, 140 (D. Mass. 2012). This is a matter of interpreting the terms of the contract between the parties. “The construction of a written contract which is plain in its terms and free from ambiguity presents a question of law for the court,'” Boland, 969 N.E.2d at 173 (quoting Hiller v. Submarine Signal Co., 325 Mass. 546, 91 N.E.2d 667, 669 (Mass. 1950)), and it is “‘the language of the forum selection clause itself that determines which claims fall within its scope.'” Pacheco, 879 F. Supp. 2d at 140 (quoting Rivera, 575 F.3d at 19).

In the present case, the plain language of the forum selection clause mandated venue in the Franklin County Superior Court, but only as to claims asserted by Plaintiff. Plaintiff’s contention that the forum selection clause is binding on Defendant ignores the qualifying introductory clause of the provision, which states [*10] that “[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement (Dkt No. 3-1 at 2). In this case, as in Rivera, the mandatory venue language “is preceded and informed by a qualifying phrase: ‘In the event that . . . [I file suit against Zoar] . . ., I . . . agree [the Venue] . . . .’ That is, the [Participant Agreement] required [Plaintiff] to assert any causes of action that [she] may have against [Defendant] in the [Franklin County Superior Court].” Rivera, 575 F.3d at 18. There is no comparable venue provision, nor is there any mandatory or restrictive language, in paragraph 4 related to an assertion by Defendant of a claim for recovery of attorney’s fees and costs (Dkt. No. 3-1 at 2). Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement. See Pacheco, 879 F. Supp. 2d at 140; Boland, 969 N.E.2d at 174; cf. Xiao Wei Catering Linkage, 150 F. Supp. 3d at 77 (satisfaction of condition precedent was required to trigger application of a forum selection clause).

Furthermore, because [*11] Plaintiff has not moved for remand and intends to prosecute her claims against Defendant in this court, it would be a waste of judicial resources to require Defendant to seek recovery of fees and costs in a separate state court action. In Count II of Plaintiff’s Complaint (and her amended complaint), she has alleged that she was fraudulently induced to sign the Participant Agreement. “It is black-letter law that an agreement . . . is voidable by a party who is fraudulently induced to enter into it.” Green v. Harvard Vanguard Med. Assocs., Inc., 79 Mass. App. Ct. 1, 944 N.E.2d 184, 193 (Mass. App. Ct. 2011); see also St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 879 N.E.2d 27, 35 (Mass. 2008) (a party is not bound by a contract she was fraudulently induced to sign). To prevail on the claim of ordinary negligence alleged in the Amended Complaint, Plaintiff will be required to prove that she was fraudulently induced to sign the Participant Agreement. See Lee v. Allied Sports Assocs., 349 Mass. 544, 209 N.E.2d 329, 332-33 (Mass. 1965). If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.” Pacheco, 879 F. Supp. 2d at 138.

V. Conclusion

For these reasons, it is this court’s RECOMMENDATION [*12] that Plaintiff’s Motion be DENIED.4

4 The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P. 59(b), any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within fourteen (14) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of HHS, 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof.

/s/ Katherine A. Robertson

KATHERINE A. ROBERTSON

United States Magistrate Judge

DATED: June 9, 2017


Just because you have a piece of paper saying you are an additional insured, it does not mean there is any coverage under any policy to protect you.

Additional insured certificates are limited by two things, what the underlying policy provides coverage for and what the certificate of insurance says it will cover. Lacking  coverage under the policy or lacking the necessary language in the additional insured certificate you are hanging in the wind without any insurance coverage.

For an additional insured certificate to be valid, you must put together three things. A contract which identifies the requirements or insurance you are looking for. An insurance policy that insures those requirements and a certificate of insurance that covers those requirements or better states as the requirements are set forth in the original contract. Lacking any, one of those and you are just wasting paper.

When you get a certificate of insurance, you must then read it to make sure you meet the requirements it may set out. If there is a limitation on the amount of time you have to file a claim or a specific way to notify the insured, make sure you follow those procedures. 

Finally, whenever you file any claim with any insurance company for coverage, follow the procedures the policy requires then follow up with a letter providing notice the insurance company in writing.

Great American Alliance Insurance Company, v. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

State: Missouri, United States District Court for the Western District of Missouri, Central Division 

Plaintiff: Great American Alliance Insurance Company 

Defendant: Windermere Baptist Conference Center, Inc., et al. 

Plaintiff Claims: Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and
(3) no medical payments coverage exists for Karlee Richards. 

Defendant Defenses:   No coverage provided under the policy or certificate of insurance

Holding: Split decision, however the insurance company will not pay anything under the certificate of insurance 

Year: 2017 

This is a legally complicated case with simple facts. A church rented a camp from Student Life, which had contracted with a church camp called Windermere. The reservation form and simple agreement between the camp and the church required the issuance of a certificate of insurance. 

A camper, part of the church group fell while riding the zip line. She sued. That lawsuit was still pending when this lawsuit was started to determine whose insurance was required to defend against the camper’s lawsuit. 

In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of  the accident.

 The injured camper Richards was with the Searcy Baptist Church. They rented the camp through Student Life. Student Life rented the camp from Windermere. The contract between Student Life and Windermere is the one at question here. Windermere required a certificate of insurance from Student Life. 

June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life. Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.

 The first issue the court skipped was the policy that Student Life had, was restrictive and had minimal coverage. It had a requirement that all claims had to be made in one year. This may not be bad, but if the statute of limitations for the type of injury is two years or three, you may not have coverage for a claim because you did not know you had one until after the time period had run. 

Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides that Great American will have no duty to defend its insured against a claim for damages.

 On top of the claim limitation period, the coverage was solely excess coverage. Meaning the coverage did on top of any other coverage the insured had and had no duty to defend or pay for attorneys. It only had to pay for a claim after the
limits of the underlying policy were exhausted. No underlying policy was ever mentioned in the case so it is unknown if one existed.

If this is the only policy, Student Life purchased, they bought the wrong one! 

Another issue was whether the student life policy would provide coverage for employees of Windermere that were sued based on the accident. 

This suit was brought by the Student Life insurance company, Great American Alliance Insurance Company, asking the court to tell Student Life it was not going to pay or defend any of the claims brought by the injured camper against Windermere. 

Analysis: making sense of the law based on these facts.

 The court first looked at whether the additional insured certificate was ambiguous. If so, then the court had to interpret the ambiguity under Missouri’s law.

An ambiguity is an uncertainty in the meaning of the policy.

  If an ambiguity exists, the policy language will be construed against the insurer. Mendota, “‘An ambiguity exists when there is
duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Whether an insurance policy is ambiguous is a question of law.” 

The burden of proving there is coverage falls on the party seeking it, in this case, Windermere. An ambiguity exists if there are different interpretations of the language in the policy. There are two types of Ambiguities, Latent and patent. 

A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Importantly, there are two types of ambiguities in the law: patent and latent. “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'” 

Here the court found that a patent ambiguity existed. 

For these reasons, a patent ambiguity exists. The disputed phrase not only should be interpreted in favor of the Defendants, but the Defendants’ interpretation is arguably the only one that would make sense to an ordinary person under these circumstances. 

The court also found a latent ambiguity existed in the certificate of insurance. 

A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning
uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.”

 If an ambiguity is found in an insurance policy, the ambiguity is construed against the insurance company. “In the
alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer
.”

Consequently, the court ruled on this issue, that there was coverage for Windermere from the Student Life Policy. However, the court found against Student Life and Windermere on the other issues.

Windermere requested coverage for defending its employees, which the court denied. 

Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement. 

The court agreed with Great American that no coverage was described in the certificate of insurance. 

The next issue was, whether or not there was a duty to defend. A duty to defend is to pay the cost of the lawsuit; attorney fees, expert witness fees, etc. 

Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.” 

Because there was no coverage for the Windermere employees, there was no duty to defend them either. A duty to defend must be specifically identified in the policy. In this case the policy specifically stated, there was no duty to defend. 

As to whether Great American owes a duty to defend Windermere, the Endorsement makes clear that any coverage for Windermere as an additional insured would be excess, and the policy does not afford a defense when (1) its coverage is excess and (2) when the insured is being provided a defense by another carrier. 

The last issue was whether medical expenses of the injured camper were owed by Great American to Windermere. Again, since the policy specifically stated there was no coverage for medical expenses this was denied. The court also found the
requirement under the policy to make a claim for medical expenses had to be done within one year, and that time had lapsed; therefore, no medical expenses were owed by the Student Life Policy with Great American. 

The decision was split, however, in reality; Windermere got nothing from the decision. If Windermere lost its suit or exhausted its own liability insurance policy protection, it could, then see money from the Student Life policy with Great American, but no other coverage was owed by Great American. However, that meant the camper was going to have to win millions probably to exhaust the Windermere policy and Windermere or its insurance company was going to foot the bill with no help from the policy under the certificate of insurance. 

So Now What? 

This is a classic case were not knowing or checking what happens when you receive an additional insured certificate ends up costing you more money than not having one. 

The underlying policy by the group coming into the camp was crap. On top of that it had major restrictions on when it would pay. Add to those issues the certificate of insurance was badly written and the company receiving the additional insured certificate received a worthless piece of paper. On top of that it cost them a lot of money I’m guessing to sue to find out they were not going to get anything from the policy.

 1.       Issue a request for a Certificate of Insurance in a contract or the contract. Set forth in the contract everything you must have and the type of insurance policy that must be underlying the certificate of insurance.

2.      Request a copy of the insurance policy be delivered with the certificate of insurance. Again, if the policy is crap, you are getting crap. 

3.      Make sure the insurance policy covers what the contract says it should cover. 

4.      Make sure the certificate of insurance covers what the contract says it must cover. 

Just collecting certificates of insurance to put in a box or file cabinet are only killing trees. It is probably not providing you any protection as in this case.

 What do you think? Leave a comment.

 To Comment Click on the Heading and go to the bottom of the page. 

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