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Have you ever read your insurance policy? You should! The one at issue in this case specifically excluded the risks the policy was bought to cover.

An event organizer of a 5K Extreme Rampage purchased an insurance policy that specifically excluded coverage for a 5K run with obstacles, mud runs and tough-guy races.

Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447

State: Kentucky, Court of Appeals of Kentucky

Plaintiff: Chris Johnson D/B/A Extreme Rampage, and Chris Johnson, and Christopher Johnson, Rampage LLC, Christopher Johnson D/B/A Rampage, LLC, and/or Extreme Rampage, Casey Arnold, Individually and as Administratrix Of the Estate of Chad Arnold, and as Next Friend and Guardian/ Conservator for Miles Arnold, and as Assignee for All Claims Held By “The Johnson Parties

Defendant: Capitol Specialty Insurance Corporation

Plaintiff Claims: negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract

Defendant Defenses:

Holding:

Year: 2018

Summary

Insurance litigation about a claim for an event, service, trip or liability is much costlier and time-consuming than any litigation concerning an injury.

In this case, the event owner and organizer of a mud run obstacle course in Kentucky purchased insurance for the event, which excluded all coverage needed for the event. Effectively, the plaintiff in this case paid for paper that had no value.

The trial courts and the appellate court agreed with the insurance company because the exclusions were in the policy that was available to the insured prior to the event.

Facts

The plaintiff in this appeal created an owned a mud run obstacle course the Extreme Rampage. Johnson the individual created Extreme Rampage LLC, which then organized and ran the event.

The event was a 3K obstacle race, similar if not identical to mud runs, death races, etc., The race was to be held at the Kentucky Horse Park. The horse park required a $1 million-dollar policy covering them.

Johnson contacted an insurance agent over the phone who completed an application and sent it off. A quote was received and accepted. The cost was $477.00, which should have been the first clue; it was too cheap. The only part of the application or proposal that Johnson saw was the “subjectivities page” which stated the policy was to be issued after a list of things were verified. The items to be verified list things as rallies, cattle drives, etc., but did not list obstacle course, running events or the like.

When the policy was issued it contained two exclusions. The first was labeled the sponsor exclusion by the court and stated:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY

EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE

Description of Operations:

Special event — 5K run with obstacles.

. . .

With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

And the second exclusion labeled by the court as the participant exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS

(SPECIFIED ACTIVITIES/OPERATIONS)

SCHEDULE

Descriptions of Activity/Operations

Mud Runs and Tough Guy Races

This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations shown in the schedule above.

During the race, one of the participants collapsed and died. His wife sued. The insurance company denied coverage. That means the insurance company was not only not going to pay the claim, they were not going to pay for attorneys to defend the case.

The Insurance Company filed a declaratory action. This lawsuit was between Johnson, the policyholder and the insurance company where the insurance company was looking for a ruling stating it had no duty to provide coverage. This is a request for immediate decision from the court on the interpretation of the policy.

Johnson, the insured and Arnold the family of the deceased participant both filed suit against the insurance company. The trial court combined the two lawsuits into one. Both filed motions for summary judgment and the insurance company filed its motion for summary judgment.

After reading the exclusions, the policy only covered spectators at the event. The spectators had to be 100′ from the event so any spectator injured that was closer than 100′ to the event could sue, and Johnson would have no coverage for that claim either. Basically, the policy was a worthless piece of paper for the event.

The trial court granted the insurance companies motion for summary judgment, and this appeal ensued. Both Johnson and the Arnold family appealed.

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

Insurance policies have their own set of laws. Even though they are contracts, after the contract is formed, new ways of interpreting a policy are created.

One such rule is any ambiguity in the policy will be ruled or interpreted against the insurance company. Since policies are presented as a take it or leave it contract, any mistakes in the contract are ruled so the policy holder wins.

The first claim is a quasi-fraud claim based on the lack of information concerning the exclusions. The court looked at this more as a situation where the event organizer did not read the policy.

Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents.

Because Johnson signed the policy (? Application not the policy, in reality) Johnson was held to the terms of the policy.

Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents.

The next argument was the insurance agent the event organizer worked with was an agent of the insurance company Capitol. As such, the agents could be liable and the agents could create liability for Capitol. An agency is created when the principal, the insurance company, grants specific authority to the agent.

“Actual authority arises from a direct, intentional granting of specific authority from a principal to an agent.” The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.”

However, there was no evidence in the record to show any agency between the insurance sales person and the insurance company, even though the sales person is called an agent.

The next argument was over the language in the policy. The event organizer argued the exclusion should not apply because the term “sponsor” was ambiguous.

Exclusions in insurance contracts are to be narrowly interpreted, and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.

After narrowly interpreting the policy, any ambiguity in the language of the policy must be interpreted in favor of the policy holder and against the insurance company.

…[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

However, the court found the term in this case, was not ambiguous.

The event organizer then argued that the Concurrent Proximate Cause Doctrine should apply in this case. The concurrent proximate cause doctrine holds that when an insured event flows from an insured event, the protection afforded by the insurance policy flows with to the new event.

Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

The court found that there was no insured event to begin with so nothing could “flow” to the uninsured event.

The appellate court upheld the motion in the declaratory action by the trial court stating the insurance company Capitol had no duty to defend the event organizer Johnson and thus any liability to the Arnold family.

So Now What?

This is simple. You MUST do the following things if you are the owners, sponsor, organizer or insured with an insurance policy.

  1. Read it
  2. Understand it
  3. Make sure it covers what you need it to cover.
  4. Find an agent who understands what you need and can communicate that to all the insurance companies he may be working with.
    1. If that means getting the insurance company out from behind their desk and down the river, to an event, or in your factory do that.
  5. Always confirm in writing or electronically that the coverage you requested and need is covered in the policy you are purchasing.
  6. Ask to see the policy and any exclusions, prerequisites or other requirements before paying for it. Once you open your wallet, you won’t get your money back.
  7. If the price of the policy is too good to be true, start investigating. On average a policy should cost $5 to $10 per person per day for outdoor recreation coverage. That amount is the bottom line and can go beyond that. If you are purchasing a policy at 1980 prices $2.00 per person per day, you are buying worthless paper.

You cannot be in business without an insurance policy. Contrary to popular believe, insurance policies do not attract lawsuits. How do people know if you are insured? If they do not know you are insured, how can someone decided to sue just because you have money.

If for no other reason, you need a policy that will pay to prove you are right. The attorney fees, court costs, exhibits, witness fees alone on a small case will exceed $50K. That means with no policy or a bad policy, you are out $50 to $100K before you even begin to pay a claim.

Insurance policies are difficult. I spent six years, three before and three after working for Nationwide Insurance. Reading a policy, let alone understanding it is mind numbing and hard. But you better or you will be standing in the cold, because someone took your house.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447

Johnson v. Capitol Specialty Ins. Corp.

Court of Appeals of Kentucky

June 22, 2018, Rendered

NO. 2017-CA-000171-MR, NO. 2017-CA-000172-MR

Reporter

2018 Ky. App. Unpub. LEXIS 447 *; 2018 WL 3090503CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE

Notice: THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

Prior History:  [*1] APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777. APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777.

Counsel: BRIEFS FOR APPELLANTS, CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE: Don A. Pisacano, Lexington, Kentucky.

BRIEFS FOR APPELLANTS, CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”: A. Neal Herrington, Christopher H. Morris, Louisville, Kentucky.

BRIEFS FOR APPELLEE, CAPITOL SPECIALTY INSURANCE CORPORATION: Richard J. Rinear, Zachary D. Bahorik, Cincinnati, Ohio.

Judges: BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. MAZE, JUDGE, CONCURS. THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

Opinion by: CLAYTON

Opinion

AFFIRMING

CLAYTON, CHIEF JUDGE: These consolidated appeals1 are taken from a Fayette Circuit Court order entering declaratory summary judgment in favor of Capitol Specialty Insurance Corporation. The primary issue is whether a [*2]  general commercial liability insurance policy issued by Capitol covers potential damages stemming from the death of a participant in an obstacle race, or whether exclusions in the policy bar recovery.

The obstacle race, known as “Extreme Rampage,” was organized and presented by Chris Johnson, the owner of Rampage, LLC. The 5K race, which included a climbing wall and mud pits, was held at the Kentucky Horse Park on March 2, 2013. Under the terms of his contract with the Horse Park, Johnson was required to “provide public liability insurance issued by a reputable company, which shall cover both participants and spectators with policy coverage of one million dollars ($1,000,000.00) minimum for each bodily injury[.]”

Johnson purchased the policy from Stephen Delre, an insurance agent employed at the Tim Hamilton Insurance Agency (“THIA”). Delre filled out an application for insurance on Johnson’s behalf and submitted it to Insurance Intermediaries, Inc. (“III”). III submitted the application to Capitol. Capitol prepared a proposal for coverage which III gave to THIA. Johnson accepted the proposal and III produced the policy based upon the terms offered by Capitol.

The policy contained two [*3]  provisions excluding bodily injury to the event participants from its coverage. For purposes of this opinion, the exclusions will be referred to as the “sponsor” exclusion and the “arising out of” exclusion.

The sponsor exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY

EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE

Description of Operations:

Special event — 5K run with obstacles.

. . .

With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

The participant exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS

(SPECIFIED ACTIVITIES/OPERATIONS)

SCHEDULE

Descriptions of Activity/Operations

Mud Runs and Tough Guy Races

This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations [*4]  shown in the schedule above.

During the course of the Extreme Rampage race, one of the participants, Chad Arnold, collapsed and died. His wife, Casey Arnold, acting individually, as the administratrix of his estate and as guardian/conservator for their minor son Miles (“Arnold”), filed a wrongful death suit naming numerous defendants, including Johnson. Johnson sought defense and indemnity under the Capitol policy. Capitol denied coverage and filed a declaratory judgment complaint in Fayette Circuit Court on March 17, 2014, asserting it had no duty to defend or indemnify Johnson because the policy expressly excluded coverage for event participants.

Johnson and Arnold subsequently filed a complaint in a different division of Fayette Circuit Court against Capitol, THIA, Delre, and III, asserting claims of negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract. On April 15, 2015, the two actions were consolidated by court order. Johnson and Arnold filed a motion for summary judgment; Capitol filed a motion for summary declaratory judgment. The trial court held extensive hearings on the motions and thereafter [*5]  entered an order granting Capitol’s motion and dismissing with prejudice all claims asserted against Capitol by Johnson and Arnold. Additional facts will be set forth as necessary later in this opinion.

In granting summary declaratory judgment to Capitol, the trial court held that that the policy issued by Capitol to Johnson excluded coverage to the Johnson defendants for the underlying claims of the Arnold defendants because the sponsor exclusion was clear and unambiguous and the Johnson defendants are a “sponsor” within the plain meaning of the word as used in the exclusion. The trial court further held that, as a matter of law, neither the concurrent proximate cause doctrine nor the efficient proximate cause doctrine applies to afford coverage under the policy to the Johnson defendants for the claims of the Arnold defendants; that neither Delre nor THIA is an agent of any kind of Capitol; and finally, that no other oral or written contract modified and/or superseded the policy to afford coverage by Capitol.

These appeals by Johnson and Arnold followed.

In reviewing a grant of summary judgment, our inquiry focuses on “whether the trial court correctly found that there were no genuine [*6]  issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781, 43 1 Ky. L. Summary 17 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03). Summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation marks and citation omitted). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Id. at 480. On the other hand, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482. “An appellate court need not defer to the trial court’s decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).

We have grouped the Appellants’ arguments into the following six categories: first, that the terms of the policy do not reflect what Johnson requested from Delre; second, that Delre and THIA were actual or apparent agents of Capitol whose alleged misrepresentations [*7]  or omissions to Johnson about the policy bound their principal; third, that neither the “sponsor” exclusion nor the “arising out of” exclusion in the policy was applicable; fourth, that the exclusions create an ambiguity in the policy when read with the coverage endorsements; fifth, that the concurrent proximate cause doctrine provides coverage under the policy; and sixth, that the trial court erred in dismissing all claims against Capitol.

1. The purchase of the policy

Johnson denies that the insurance policy attached to Capitol’s declaratory judgment complaint is a true and accurate copy of the policy he purchased and admits only that the document attached to the complaint is the document he received in the mail after he had paid for the policy.

According to deposition testimony, Johnson first spoke with Delre about obtaining insurance coverage for the Extreme Rampage event in a telephone conversation in December 2012. Johnson had purchased an insurance policy for a similar race event from Delre approximately six months earlier. Delre questioned Johnson about the type of coverage he was seeking. Johnson was unaware that Delre was simultaneously filling out a “special event” insurance [*8]  application. According to Johnson, he told Delre he needed participant coverage and Delre specifically asked him how many participants would be involved in the event. Delre nonetheless left blank on the “special event” application form whether athletic participant coverage was requested. Delre signed Johnson’s name to the application for insurance without Johnson reviewing the document. After the insurance application was submitted, Delre sent a proposal to Johnson which he claims he never received.

On February 8, 2013, Johnson visited Delre and THIA’s office to pay for the policy in the amount of $477. He signed a “subjectivities page” which stated that the policy quote was subject to verification of the following:

No events involving the following: abortion rights, pro choice or right-to-life rallies/parades or gatherings, air shows or ballooning events, auto racing regardless of vehicle size (including go-karts, motorcycles and snowmobiles), cattle drives, events involving inherently dangerous or stunting activities, events with water rides/slides etc., political demonstrations or protest rallies by groups with a history of violent incidents, [n]o events with fireworks displays. AND [*9]  — Spectators must be a safe distance (100 feet minimum) from the obstacle course.

Johnson was not shown the actual policy, nor was he informed of the participation exclusions in the insurance proposal.

A copy of the complete policy containing the “sponsor” exclusion and the “arising out of” exclusion was mailed to Johnson on February 27, 2013. Johnson asserts that the policy did not conform to what he agreed to in his conversation with Delre and that he was never informed that participants would be excluded from coverage. He points out that the policy was also later unilaterally modified by Delre after the Horse Park requested a certificate of insurance indicating that it was an “additional insured” on the policy.

Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents[.]” Bidwell v. Shelter Mut. Ins. Co., 367 S.W.3d 585, 592 (Ky. 2012) (citing National Life & Accident Ins. Co. v. Ransdell, 259 Ky. 559, 82 S.W.2d 820, 823 (1935)). “In Midwest Mutual Insurance Company v. Wireman, 54 S.W.3d 177 (Ky. App. 2001), the Court of Appeals held an insured can waive UM coverage by signing the application for liability coverage, even if the insured alleges the agent never explained the meaning of UM coverage to him.” Moore v. Globe Am. Cas. Co., 208 S.W.3d 868, 870 (Ky. 2006). “All persons are presumed to know the law and the mere lack of knowledge [*10]  of the contents of a written contract for insurance cannot serve as a legal basis for avoiding its provisions.” Id. (internal quotation and citation omitted).

Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents. The trial court did not err in ruling that there was no genuine issue of material fact concerning the policy and that no other oral or written contract modified or superseded the policy to afford coverage to Johnson for Arnold’s claims.

2. Were Delre and THIA agents of Capitol

Arnold seeks to hold Capitol liable for any omissions or misrepresentations of Delre and THIA by arguing that they were Capitol’s actual or apparent agents. “Under common law principles of agency, a principal is vicariously liable for damages caused by torts of commission or omission of an agent or subagent, . . . acting on behalf of and pursuant to the authority of the principal.” Williams v. Kentucky Dep’t of Educ., 113 S.W.3d 145, 151 (Ky. 2003), as modified (Sept. 23, 2003) (internal citations omitted).

“Actual authority arises from a direct, intentional granting of [*11]  specific authority from a principal to an agent.” Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 830 (Ky. App. 2014). The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.” Kentucky’s Insurance Code provides that “[a]ny insurer shall be liable for the acts of its agents when the agents are acting in their capacity as representatives of the insurer and are acting within the scope of their authority.” Kentucky Revised Statutes (KRS) 304.9-035.

There is no evidence in the record that Capitol made a direct, intentional grant of authority to THIA and Delre to act as its agents or representatives; nor is there evidence that Capitol made any manifestations of its objectives to THIA or Delre with the expectation that they would act to achieve those objectives. Furthermore, as elicited in the hearing before the trial court, Capitol does not have a written agreement with THIA or Delre establishing them as its agents nor is there a registration or filing with the Kentucky Department of Insurance designating them as licensed [*12]  agents of Capitol. By contrast, Delre and THIA are registered, authorized agents of Nationwide Insurance in Kentucky and Johnson actually believed he would be purchasing a Nationwide policy from Delre.

As evidence of an actual agency relationship, Arnold points to the fact that THIA and Capitol both have contracts with III, the intermediary brokerage company which sent Johnson’s application for insurance to Capitol, seeking a policy proposal. The existence of contracts with the same third party was not sufficient in itself to create an actual agency relationship between THIA and Delre and Capitol. Capitol prepared the insurance proposal in reliance on the information contained in the application submitted by III; Capitol had no contact with or control over Delre or THIA. Consequently, Capitol could not be bound by what Johnson believed Delre had promised.

Similarly, there is no evidence that THIA and Delre were apparent agents of Capitol. “Apparent authority . . . is not actual authority but is the authority the agent is held out by the principal as possessing. It is a matter of appearances on which third parties come to rely.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 499 (Ky. 2014) (quoting Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 267 (Ky. App. 1990)). “One who represents that another is his servant [*13]  or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 257 (Ky. 1985) (quoting Restatement (Second) of Agency § 267 (1958)).

The only representations made to Johnson by Capitol were in the form of the proposal and written policy he signed. Capitol never held out Delre and THIA as its agents. Johnson admitted he had no contact with Capitol whatsoever and did not even know the policy he purchased was provided by Capitol until after the Extreme Rampage event.

The trial court did not err in holding that no agency relationship, actual or apparent, existed between Capitol and Delre and THIA.

3. Applicability of the policy exclusions

The trial court ruled that the “sponsor” exclusion was clear and unambiguous and the Johnson defendants were a “sponsor” within the plain meaning of the word as it was used in the exclusion. The Appellants disagree, arguing that the multiple definitions of the term “sponsor,” which is not defined in the policy, render it ambiguous.

“Interpretation and construction of an insurance contract is a matter [*14]  of law for the court.” Kemper Nat’l Ins. Companies v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002). Exclusions in insurance contracts

are to be narrowly interpreted and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.

Eyler v. Nationwide Mut. Fire Ins. Co., 824 S.W.2d 855, 859-60 (Ky. 1992) (internal citations omitted).

On the other hand,

[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226-27 (Ky. 1994).

The Appellants rely on an opinion of the federal district court for the Eastern District of Pennsylvania, Sciolla v. West Bend Mut. Ins. Co., 987 F. Supp. 2d 594 (E.D. Pa. 2013) which held an identical insurance exclusion [*15]  to be inapplicable after concluding the term “sponsor” is ambiguous due to the lack of a universally accepted definition of the term by dictionaries and the courts. Sciolla, 987 F. Supp. 2d at 603. The Sciolla court assembled the following dictionary definitions of “sponsor:”

The full definition given by Merriam-Webster is: “a person or an organization that pays for or plans and carries out a project or activity; especially: one that pays the cost of a radio or television program usually in return for advertising time during its course.” Merriam-Webster’s Collegiate Dictionary, 1140 (9th ed. 1983). . . .

. . . [T]he American Heritage Dictionary defines sponsor, in relevant part, as “[o]ne that finances a project or an event carried out by another person or group, especially a business enterprise that pays for radio or television programming in return for advertising time.” American Heritage Dictionary of the English Language, 1679, (4th ed., 2009). Other dictionaries defines sponsor as “[o]ne that finances a project or an event carried out by another,” The American Heritage College Dictionary, 1315 (3d ed. 1993), or, as a verb, “to pay or contribute towards the expenses of a radio or television program, a performance, [*16]  or other event or work in return for advertising space or rights.” Oxford English Dictionary, 306 (2d ed. 1989).

Id. at 602.

The Sciolla court grouped the definitions into two categories: “The first concept is that of a person or an organization that pays for a project or activity. . . . The second concept is of a person or an organization that plans and carries out a project or activity.” Id. (italics in original).

As recognized by the Sciolla court, in order to be found ambiguous, a term with multiple definitions must be subject to more than one interpretation when applied to the facts of the case before it. Id. at 603. “Because a word has more than one meaning does not mean it is ambiguous. The sense of a word depends on how it is being used; only if more than one meaning applies within that context does ambiguity arise.” Board of Regents of Univ. of Minnesota v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn. 1994). As the United States Supreme Court has observed in the context of statutory interpretation, “[a]mbiguity is a creature not of definitional possibilities but of statutory context[.]” Brown v. Gardner, 513 U.S. 115, 118, 115 S. Ct. 552, 555, 130 L. Ed. 2d 462 (1994).

It is the Appellants’ position that Johnson did not “sponsor” the Extreme Rampage but actually organized, promoted, and ran the event. In his deposition, Johnson stated that he was not a “sponsor” of the [*17]  Extreme Rampage event but that he “owned” the event, and that he actually discovered Delre and THIA while seeking sponsorships for Rampage events. Delre in his deposition confirmed that Johnson asked him to be a sponsor. When he was asked how he got started funding Rampage, LLC, Johnson replied “Sponsorships and my own pocket.” Thus, the evidence indicates that Johnson helped to fund Extreme Rampage and also planned and carried it out. There is no evidence that he financed a project carried out by another or that he paid for the project in exchange for advertising space.

The fact that Johnson’s actions do not meet each and every one of the multiple definitions of “sponsor” does not render the term ambiguous, however, when the term is viewed in the context of the language of the exclusion, which applies to “bodily injury to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” (Emphasis added.)

The policy provides the following definition of “you”: “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the declarations, and any other person or organization qualifying as a Named Insured under [*18]  this policy. The words ‘we’, ‘us’ and ‘our’ refer to the company providing this insurance.” Thus, Johnson, the Named Insured, is “you.” When the term “sponsor” is viewed within the context of an insurance policy covering one discrete event sponsored by the Named Insured, Johnson, it was plainly intended to refer to Johnson and to the specific Extreme Rampage event he was sponsoring.

The Appellants argue that the trial court did not have the right to choose which of the multiple competing definitions of sponsor applied. When viewed in the context of the exclusion, however, the definition is plainly limited to the sponsorship activities of the Name Insured, Johnson.

Because the trial court did not err in holding that the “sponsor” exclusion is applicable, we need not address the validity of the “arising out of” exclusion.

4. The applicability of the concurrent proximate cause doctrine

Johnson argues that even if the policy exclusions apply, the concurrent proximate cause doctrine provides coverage under the policy. Johnson contends that the doctrine was adopted by the Kentucky Supreme Court in Reynolds v. Travelers Indem. Co. of Am., 233 S.W.3d 197, 203 (Ky. App. 2007). Reynolds is an opinion of the Court of Appeals, and it did not officially adopt the doctrine; [*19]  it approved of the reasoning in a case from our sister state in Bowers v. Farmers Insurance Exchange, 99 Wash. App. 41, 991 P.2d 734 (2000), which applied the “efficient proximate cause doctrine.” Reynolds, 233 S.W.3d at 203.

The doctrine holds that

Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

10A Couch on Insurance 3d § 148:61 (2005).

Applying the doctrine, Johnson argues that even if Chad Arnold’s participation in the race was an excluded peril, the loss was essentially caused by a peril that was insured. He contends that the allegations of Arnold’s complaint, such as failure to provide reasonable medical treatment; failure to plan and have proper policies and procedures; and failure to train, instruct, and supervise are not predicated upon a cause of action or risk that is excluded under the policy. He points to the affidavit of a doctor who reviewed Chad Arnold’s medical records and post-mortem examination and concluded that he died of a pre-existing heart condition unconnected [*20]  with his participation in the race.

This argument ignores the fact that the “sponsor” exclusion does not reference causation or a specific “peril”; it merely excludes participants in the covered event from recovery for bodily injury, whatever the cause. It does not require a finding that the bodily injury was caused by participation in the event.

We agree with the reasoning of the federal district court for the Western District of Kentucky, which addressed a factually-similar situation involving a student who collapsed and died while practicing for his college lacrosse team. Underwriters Safety & Claims, Inc. v. Travelers Prop. Cas. Co. of Am., 152 F. Supp. 3d 933 (W.D. Ky. 2016), aff’d on other grounds, 661 F. App’x 325 (6th Cir. 2016). The college’s insurance policy contained an exclusion for athletic participants. The plaintiffs argued that the allegations of their complaint were focused on the college’s failure to provide pre-participation medical forms to physicians who examined the student and on the college’s failure to render proper medical treatment. The district court described these arguments as “red herrings” that attempted “to re-contextualize the fatal injury as a result of medical malpractice or concurrently caused by medical malpractice and engagement in athletic activity.” Underwriters, 152 F. Supp. 3d at 937. The complaint filed by the [*21]  student’s estate “did not seek redress for a bodily injury that occurred during pre-participation athletic medical screenings. The policy specifically excludes bodily injury while engaged in athletic or sports activities. Passfield [the student] was engaged in such an activity at the time of the injury. While the Court liberally construes insurance policies in favor of the insured, the Court also strictly construes exclusions. This is an instance of the latter.” Id. Similarly, in the case before us, the exclusion applies specifically to bodily injury while participating in the Extreme Rampage. The exclusion does not require a causal link between the participation and the injury to apply. There is no genuine issue of fact that Chad Arnold was a participant in the race and that, as the complaint alleges, “during the course of the event, the decedent collapsed, consciously suffered for an undetermined amount of time, and died.”

5. Do the two exclusions create an ambiguity in the policy

Johnson further argues that the two exclusions create an ambiguity in the policy when read in conjunction with two coverage endorsements. Johnson claims that the “Combination Endorsement-Special Events” and [*22]  the “Limitation-Classification Endorsement” provide unfettered coverage while the two exclusions limit coverage, thus creating an ambiguity. Johnson’s brief gives no reference to the record to show where the endorsements are found, nor does it indicate when or how the trial court addressed this issue. CR 76.12(4)(c)(v) requires an appellate brief to contain “ample supportive references to the record and . . . a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” The purpose of this requirement “is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). “[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). We are simply “without authority to review issues not raised in or decided by the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Nor is it the task of the appellate court to search the record for pertinent evidence “not pointed out by the parties in their briefs.” Baker v. Weinberg, 266 S.W.3d 827, 834 (Ky. App. 2008).

We recognize that the hearing on August 25, 2016, at which this issue may have been argued before the trial court, was not recorded. [*23]  Nonetheless, “when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).

6. Dismissal of all claims against Capitol.

Finally, Arnold argues that the trial court erred in dismissing all causes of action against Capitol. Arnold contends that the arguments before the trial court only concerned the applicability of the insurance policy, but never addressed the additional allegations in the complaint of negligence, consumer protection, unfair claims settlement practices, and fraud. Arnold does not explain what the grounds for Capitol’s liability on these claims would be if, as the trial court ruled, the “sponsor” exclusion is valid and Delre and THIA were not acting as Capitol’s agents. Under these circumstances, the trial court did not err in dismissing all claims against Capitol.

For the foregoing reasons, the order of the Fayette Circuit Court granting summary declaratory judgment to Capitol is affirmed.

MAZE, JUDGE, CONCURS.

THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

Bibliography

CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE, 2018 Ky. App. Unpub. LEXIS 447, 2018 WL 3090503, (Court of Appeals of Kentucky June 22, 2018, Rendered).


Making statements contrary to release can be barred by a release, maybe, but may be gross, wilful and wanton negligence which the release does not stop.

Plaintiff signed a release to participate in the Warrior Dash race. An employee of the race was encouraging participants to dive into a mud pit. Plaintiff dove into the mud pit rendering himself a quadriplegic.

Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

State: Federal District Court for the Eastern District of Michigan

Plaintiff: James Sa

Defendant: Red Frog Events, LLC, an Illinois corporation

Plaintiff Claims: negligence, gross negligence, and willful and wanton misconduct

Defendant Defenses: release and failure to state a claim upon which relief may be granted

Holding: for the defendant on the negligence claim because of the release, for the plaintiff on the gross negligence, and willful and wanton misconduct claims

Year: 2013

This case is possible still ongoing. How the final decision will evolve is unknown. However, the federal district court did arrive at some great analysis of the case.

This case comes out of the new fad, extreme obstacle racing. In these races participants run through live electrical wires, jump through fire and here, crawl through a mud pit. These races are known by various names, Warrior Dash, Spartan Race and Tough Mudder are the most well-known.

In this case, the plaintiff signed up for a Warrior Dash 5K race and signed a release. The release specifically warned against diving into the mud pit. The mud pit was right in front of the bleachers and the last obstacle on the course.

At the mud, pit was an employee of the defendant with a microphone, and loudspeaker “acting as an emcee” for the event.

Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged.

So many people were diving into the mud pit that people were blogging about it and posting photos online.

The plaintiff followed the emcee’s “encouragement” and dove into the mud pit resulting in paralysis from the chest down. The plaintiff sued, and the defendant filed a motion to dismiss.

A motion to dismiss is usually filed by the defendant prior to filing an answer. The basis is the pleadings are so lacking in any facts or there is no law to support a claim. In reviewing the motion, the court must accept the allegations and facts in the complaint as true. It is unclear in reading this case when the motion to dismiss was filed. This opinion is the court’s response to the motion to dismiss.

Summary of the case

The court first looked at whether the release acted to stop the negligence claims of the plaintiff. Releases are valid in Michigan. Under Michigan law a release’s validity:

…turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.

Whether the release is valid is a question of law. The plaintiff did not argue that he signed the release. The court pointed out possible ways the plaintiff could void the release which the plaintiff did not use.

He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.

Ninety-nine percent of the time plaintiff’s attack the validity of the release based on their competence or understanding of the release. In not doing so, I would guess the plaintiff shocked the judge so he put in this language. The plaintiff’s first argued the release was invalid because:

…that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.

(This argument has been used endlessly and is so easily avoided. Use the word negligence in your release.)

Here the language used by the defendant met the requirements to put the plaintiff on notice that he was giving up his rights to sue for negligence. “…although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.”

The release language under Michigan’s law is called the indemnity provision or clause. That translation of the phrase is different from most other states. Here, it is like saying, by signing the release the plaintiff agrees to indemnify himself for his injuries.

…the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

The next argument of the plaintiff’s is brilliant and if successful would bring down hundreds of releases across the United States. Releases written by attorneys or non-attorneys in an attempt to soften the blow will put statements in the release about how safe the activity is, how well run the operation is or that accidents rarely happen.

The plaintiff argued that other statements in the release gave the plaintiff the impression that the defendant would not be negligent in the operation of the race.

For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.

The court did not accept this argument because the paragraph this language was in went on stating there was a risk of injury entering the race.

The final argument by the plaintiff was also unique and if accepted would invalidate dozens of releases. The plaintiff argued that the statements by the employee of the defendant, the emcee, invalidated the release. In legal language, the statements of the emcee “constituted a waiver and modification of the release of liability.”

In sum, Plaintiff argues, “[t]his conduct led James [the plaintiff] to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.”

Under Michigan’s law, any waiver of a written contract must be in writing unless the waiver language is consistent with the strict compliance language of the contract. Meaning the waiver language must be of the same type and of the same legal tone as the original contract.

Even assuming that Michigan law permits parties to orally modify a waiver and release, the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

The court upheld the validity of the release and held the release stopped the simple negligence claims of the plaintiff.

On the second and third claims, gross negligence, and willful and wanton misconduct, a release under Michigan’s law does not work. The issue then becomes are there enough allegations to the facts in the complaint and documents filed with the court to this point to support the plaintiff’s claim of gross negligence, and willful and wanton misconduct.

Under Michigan’s law:

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.”

Under Michigan’s law, a release does not stop claims for gross negligence. So the gross negligence claim survives the defense of release. The issue then is whether the plaintiff as plead enough facts that a jury may find give rise to gross negligence.

…it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether an injury would result.

The court, based upon the statements of the emcee at the mud pit encouraging people to dive into the pit were enough to possibly support a claim for gross negligence.

Under Michigan’s law, Wilful and Want misconduct is different and distinct from gross negligence.

“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to an-other, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”

…willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.

Here again, the court found the actions of the emcee in encouraging participants to dive into the mud pit might be found to be an intent to harm or an indifference.

Here, a reasonable jury might conclude that the act of encouraging participants to jump head-first into the mud pit despite knowing the risks, to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]”

Consequently, the court granted the motion to dismiss on the negligence claims and denied the motion to dismiss on the claims of gross negligence and wilful and wanton misconduct.

Again, this case probably is not over yet.

So Now What? 

Don’t give an injured participant the opportunity to sue you. Don’t dance with the possibility that your language you use instead of the word negligence will meet the requirements of the law.

JUST USE THE WORD NEGLIGENCE IN YOUR RELEASE!

Second, don’t allow anyone who is an employee or may appear to participants to be an employee to encourage people to take actions that might injure them or is contrary to the rules of your activity.

It seems to be common sense; however, in the heat of the activity or an unfounded belief the release is ironclad, people get excited and might encourage a participant to take risks they are not expected or ready for.

What do you think? Leave a comment.

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Sa v. Red Frog Events, LlC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

Sa v. Red Frog Events, LlC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

James Sa, Plaintiff, vs. Red Frog Events, LlC, an Illinois corporation, Defendant.

No. 2:13-cv-10294

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

October 22, 2013, Decided

October 22, 2013, Filed

CORE TERMS: mud, dive, pit, own negligence, willful, wanton misconduct, obstacle, gross negligence, diving, indemnity, negligence claim, indemnitee, indemnify, negligent acts, indemnification, disclaim, pit head, risk of injury, citation omitted, unambiguous, encouraged, summary judgment, claim arising, recreational activities, reasonable care, encouraging, disclaimer, hazardous, choosing, ladder

COUNSEL: [**1] For James Sa, Plaintiff: Michael J. Behm, Behm and Behm, Flint, MI.

For Red Frog Events, LLC, Defendant: Brian T. McGorisk, Plunkett & Cooney, Flint, MI.

JUDGES: Hon. GERALD E. ROSEN, CHIEF UNITED STATES DISTRICT JUDGE.

OPINION BY: GERALD E. ROSEN

OPINION

[*769] OPINION AND ORDER PARTIALLY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This action arises out of an unfortunate and tragic accident during a running race organized by Defendant Red Frog Events, resulting in Plaintiff James Sa’s paralysis from his chest down. On January 23, 2013, Plaintiff filed a three-count Complaint, asserting negligence, gross negligence, and willful and wanton misconduct. 1 Defendant has now moved to dismiss Plaintiff’s Complaint on the grounds that Plaintiff waived his negligence claim and that his two other claims fail to state a claim upon which relief may be granted. 2 Having reviewed and considered the parties’ briefs and supporting documents and the entire record of this matter, the Court has determined that the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral [*770] argument would not assist in the resolution of these motions. Accordingly, the Court will decide Defendant’s [**2] motion “on the briefs.” See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court’s ruling.

1 Michigan courts use “willful” and “wilful” interchangeably. For consistency, this Court uses the former, unless in the context of a direct quote.

2 Though captioned as a “Motion for Summary Judgment,” Defendant’s Motion makes clear that it seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, pursuant to Rule 56. As discussed in more detail in footnotes 3 and 4, this Court applies Rule 12(b)(6) to this Motion.

II. PERTIENT FACTS

In July 2011, Plaintiff participated in a two-day event known as the “Warrior Dash” in Mt. Morris, Michigan. (Plf’s Compl., Dkt. # 1, at ¶¶ 5, 8). The Warrior Dash is a 5k running race with obstacles, including jumping over fire, wall climbing, and a mud pit. (Id. at ¶ 7). Plaintiff was injured as a result of diving head first into the mud pit. (Id. at ¶¶ 21-22).

Positioned directly across from bleachers and right before the finish line, the mud pit was the last obstacle of the race. (Id. at ¶¶ 13-14). One of Defendant’s employees or agents was stationed near the mud pit with a microphone and loudspeaker, acting as an emcee for the [**3] event. (Id. at ¶ 15). Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. (Id. at ¶¶ 16, 26, 27). It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged. (Id. at ¶ 17). As an example of this “common knowledge,” bloggers commented about mud diving online. (Id. at ¶ 18). One noted the following:

When I arrived at the Warrior Dash on Saturday morning I found out rather quickly that “mud diving” was rather popular on the last obstacle before the finish line. . . . A good mud dive at this point makes perfect sense since runners are tired from the grueling course yet rejuvenated as they see the last obstacle. I’m sure the spectator attention also gives a little more motivation for participants to bring their best mud dive as well. . . . Hopefully this joy is worth the pain they may have endured to make this happen since my brother-in-law had to go to the hospital after attempting a cannon ball.

(Id.). This same person also posted “sweet pictures of an assortment of some of the best mud dives” and requested that readers “vote” for their favorite. (Id.).

Before [**4] Plaintiff’s race wave began, he witnessed many participants dive into the mud pit, heard the emcee encourage others to dive into the mud pit, and never saw anyone tell participants not to dive into the mud pit. (Id. at ¶¶ 19, 27). Defendant also did not post any signs instructing individuals not to dive into the mud pit. (Id. at ¶ 20). Accordingly, Plaintiff followed the emcee’s encouragement and the lead of other participants and dove into the mud pit, resulting in paralysis from the chest down. (Id. at ¶ 22).

Prior to participating in the Warrior Dash, Plaintiff — as well as all other participants — signed a “Waiver and Release of Claims” (Waiver). (Id. at ¶ 9). The Waiver provides, in no uncertain terms, that Plaintiff “agree[s] not to dive into or enter the mud pit head first.” (Ex. A. to Def’s Br., Dkt. # 4-1, at ¶ 17). 3 Other pertinent language includes:

1. I understand that entering Warrior Dash is a hazardous activity.

2. I understand that Warrior Dash presents extreme obstacles including, but not limited to: fire, mud [*771] pits with barbed wire, cargo climbs, junk cars, and steep hills.

* * *

7. I assume all risks associated with competing in Warrior Dash, including, but not limited [**5] to: falls, contact with other participants, negligent or wanton acts of other participants, completing all obstacles, any defects or conditions of premises, and the effects of weather including high heat and/or humidity, all such risks being known and appreciated by me.

* * *

DISCLAIMER

I understand that Red Frog Events, LLC is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard. I understand that Red Frog Events, LLC continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety. I also understand, however, that participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.

* * *

WAIVER & RELEASE OF ALL CLAIMS; ASSUMPTION OF RISK

I recognize and acknowledge that there are certain risks of physical injury to participants in Warrior Dash, and voluntarily assume the full risk of any and all injuries, damages, or loss, regardless of severity, that I . . . may sustain as a result of said participation. [**6] . . . I assume all risks and hazards incidental to such participation in Warrior Dash, and I hereby waive, release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me . . . and from any and all claims, causes of action, obligations, lawsuits, charges, complaints, contracts, controversies, covenants, agreements, promises, damages, costs, expenses, responsibilities, of whatsoever kind, nature, or description, whether direct or indirect, in law or in equity, in contract or tort, or otherwise, whether known or unknown, arising out of or connected with my . . . participation in Warrior Dash.

(Id.) In accepting these terms, Plaintiff checked that he had read and fully understood the Waiver and signed with his own free act and deed. (Id.).

3 Defendant attached a signed copy of the Waiver in support of its Motion. This Court may consider this document without treating Defendant’s Motion as one for summary judgment because it is referred to in Plaintiff’s Complaint and is central to his claim. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997).

III. DISCUSSION

A. Applicable Standards

1. Rule 12(b)(6) Standard

In [**7] deciding a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to Plaintiffs and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). To withstand a motion to dismiss, however, a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The factual allegations in the complaint, accepted as true, “must be enough to raise a right to relief above the speculative level,” and must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “The plausibility of [*772] an inference depends on a host of considerations, including common sense and the strength of competing explanations for defendant’s conduct.” 16630 Southfield Limited P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).

The Sixth [**8] Circuit has emphasized that the “combined effect of Twombly and Iqbal [is to] require [a] plaintiff to have a greater knowledge . . . of factual details in order to draft a ‘plausible complaint.'” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citation omitted). Put another way, complaints must contain “plausible statements as to when, where, in what or by whom,” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir. 2011), in order to avoid merely pleading “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

2. Application of Michigan law

This Court applies Michigan law as enunciated by the Michigan Supreme Court because subject matter jurisdiction in the matter is premised solely on diversity jurisdiction. See, e.g., Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 (6th Cir. 2007); Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995). “Where the Michigan Supreme Court has not addressed an issue, [courts] may look to opinions issued by the Michigan appellate courts and should follow their reasoning unless [they] are ‘convinced by other persuasive data that the [**9] highest court of the state would decide otherwise.'” Tooling, Mfg. & Technologies Ass’n v. Hartford Fire Ins. Co., 693 F.3d 665, 670 (6th Cir. 2012) (quoting Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 517 (6th Cir. 2001)).

B. The Waiver bars Plaintiff’s negligence claim (Count I)

In Michigan, “the validity of a release turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.” Batshon v. Mar-Que Gen. Contractors, Inc., 463 Mich. 646, 650 n.4, 624 N.W.2d 903 (2001). “The interpretation of [a] release [is] a question of law.” Cole v. Ladbroke Racing Michigan, Inc., 241 Mich. App. 1, 13, 614 N.W.2d 169 (2000).

Michigan law expressly permits “a party to contract against liability or damages caused by its own ordinary negligence.” Skotak v. Vic Tanny Intern., Inc., 203 Mich. App. 616, 617-18, 513 N.W.2d 428 (1994). Plaintiff does not dispute that he signed the Waiver and provides no factual support to avoid the consequences of the Waiver. He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; [**10] (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.” Xu v. Gay, 257 Mich. App. 263, 273, 668 N.W.2d 166 (2003). 4 Rather, Plaintiff asserts [*773] that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.” (Plf’s Resp., Dkt. # 8, at 6). For this proposition, Plaintiff begins with a citation to an Eastern District of Michigan case, Buffa v. General Motors Corporation, 131 F. Supp. 478 (E.D. Mich. 1955), finding that “a contract of indemnity which purportedly indemnifies against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless it clearly appears from the language used that it was intended to have that effect.” Id. at 482.

4 In response to Defendant’s Motion, Plaintiff submitted various materials outside the pleadings, including an unsigned and different version of the Waiver, an affidavit from Plaintiff, affidavits from two participants, a press release from Defendant regarding the Warrior Dash, and an excerpt from the above quoted blog picturing [**11] participants’ dives and requesting that readers vote for the best dive. To the unsigned Waiver, the Court notes that while slightly different, the material language at issue is the same — including that Plaintiff agreed to “not dive into or enter the mud pit head first,” that the Warrior Dash is a “hazardous activity,” that he “assum[ed] the full risk of any and all injuries,” and that he agreed to release Defendant from “any and all” claims. Plaintiff’s affidavit also fails to raise any issues challenging the factual circumstances of his signing of the Waiver. Finally, the remaining materials just supplement his Complaint assertions — namely, that Defendant’s agent encouraged participants to dive into the mud pit. Such materials “simply fill[] in the contours and details of the [P]laintiff’s complaint, and add[] nothing new.” Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997). In short, nothing in these materials provides the Court with any basis for finding that there would be any facts that could be developed through discovery that would provide a factual predicate to support Plaintiff’s negligence cause of action. Accordingly, the Court declines to consider [**12] these materials and therefore evaluates the sufficiency of Plaintiff’s Complaint under Federal Rule of Civil Procedure 12(b)(6).

There is no doubt that Michigan courts have adopted this general proposition, but not in the manner in which Plaintiff suggests. See, e.g., Skinner v. D-M-E Corp., 124 Mich. App. 580, 586, 335 N.W.2d 90 (1983) (“It is universally recognized that a contract which purports to confer an express right to indemnification against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless the contract language clearly evidences that such was the intended effect.”). Instead, Michigan courts hold that “indemnity clauses need not expressly mention the indemnitee’s own acts to provide coverage for them.” Badiee v. Brighton Area Sch., 265 Mich. App. 343, 353, 695 N.W.2d 521 (2005) (citing Sherman v. DeMaria Bldg. Co., Inc., 203 Mich. App. 593, 513 N.W.2d 187 (1994)). As the Sherman court explained:

Michigan courts have discarded the additional rule of construction that indemnity contracts will not be construed to provide indemnification for the indemnitee’s own negligence unless such an intent is expressed clearly and unequivocally in the contract. Instead, broad indemnity [**13] language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from “other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.”

Sherman, 203 Mich. App. at 596-97 (citation omitted); see also Chrysler Corp. v. Brencal Contractors, Inc., 146 Mich. App. 766, 771, 381 N.W.2d 814 (1985) (“Earlier cases imposed the additional rule of construction that indemnification contracts will not be construed to indemnify the indemnitee against losses from his own negligent acts unless such an intent is expressed in unequivocal terms. That rule of construction no longer applies.”) (internal citations omitted). Put another way, “although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.” Fischbach-Natkin Co. v. Power Process Piping, Inc., 157 Mich. App. 448, 452-53, 403 N.W.2d 569 (1987); Harbenski v. Upper Peninsula Power Co., 118 Mich. App. 440, 454, 325 N.W.2d 785 (1982) (“The [*774] contention that the intent to indemnify an indemnitee against his own negligence must be expressly stated has been rejected.”) (citing Vanden Bosch v. Consumers Power Co., 394 Mich. 428, 230 N.W.2d 271 (1975)).

Plaintiff [**14] contends that Sherman does not so hold, and rather only stands for the narrow proposition that “if there is no unequivocal language in the agreement indemnifying defendant for its own negligent acts then the indemnity language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.” (Plf’s Resp., Dkt. # 8, at 8) (citation and internal quotations omitted). For support, Plaintiff argues that the presence of an exclusionary clause in Sherman — excluding indemnification for claims based on the defendant’s sole negligence — “evince[d the] . . . intent to indemnify [defendant] against losses from its own negligence but not from loses caused solely by [defendant].” (Id.) (quoting Sherman, 203 Mich. App. at 598-99). 5 Though the Waiver here contains no such clause, Sherman cannot be read as requiring such juxtaposing language to either read in or read out coverage for a party’s own negligence. Instead, Sherman counsels that courts must examine, among other things, the contract’s “other language” in the absence of an [**15] unequivocal statement regarding a party’s own negligence.

5 Sherman also notes that the waiver referenced the “owner’s continuing operations, which indicated that the parties realized their employees would be on the job site at the same time . . . [t]hus, the possibility that an injury or damage could result from [the defendant]’s negligence was apparent at the time the parties entered the contract.” Sherman, 203 Mich. App. at 599. The Court addresses this language below.

Here, the Waiver’s “other language” “clearly expresses [D]efendant’s intention to disclaim liability for all negligence, including its own.” Skotak, 203 Mich. App. at 619. Michigan law plainly holds that the phrases “‘any’ and ‘all’ and of the phrase ‘any and all’ . . . include[s] one’s own negligence.” Paquin v. Harnischfeger Corp., 113 Mich. App. 43, 50, 317 N.W.2d 279 (1982). This is because “there cannot be any broader classification than the word ‘all.’ In ‘its ordinary and natural meaning, the word “all” leaves no room for exceptions.'” Id. (citation omitted).

In personal injury cases interpreting language nearly identical to the Waiver’s language, Michigan courts find that such phrases disclaim one’s own negligence. Take Skotak [**16] for example. There, the Michigan Court of Appeals addressed the scope of a waiver in a matter alleging negligence — failing to train staff to respond to a heart attack — against a health club after a club member suffered a fatal heart attack while sitting in a steam room. 203 Mich. App. at 617. In construing the waiver to include the defendant’s own negligence, the Skotak court noted that the waiver’s “inclusive language, ‘any and all claims, demands, damages, rights of action, or causes of action, . . . arising out of the Member’s . . . use of the . . . facilities,’ clearly expresses defendant’s intention to disclaim liability for all negligence, including its own.” Id. at 619 (alterations in original). The Skotak court also emphasized the breadth of the word “all,” rejecting the plaintiff’s argument that it covered certain kinds of negligence (slip and fall injuries resulting from use of exercise equipment), but not others (like negligent training and supervision):

[*775] We fail to see how such a line can be drawn. We do not believe that the risk that medical assistance might not be available is somehow less foreseeable than the danger of a slip and fall injury. In any event, there is no [**17] broader classification than the word “all.” In its ordinary and natural meaning, the word “all” leaves no room for exceptions. Therefore, assuming that defendant was negligent in failing adequately to train and supervise its employees, any claim arising out of that negligence would be barred by the release clause the decedent signed.

Id. (internal citation omitted).

Other personal injury cases — of which Defendant features prominently and Plaintiff avoids all together — also interpret similar waiver language to include one’s own negligence. 6 See Cole, 241 Mich. App. at 14 (release covering “all risks of any injury that the undersigned may sustain while on the premises . . . clearly expressed defendant’s intention to disclaim liability for all injuries, including those attributable to its own negligence”); Gara v. Woodbridge Tavern, 224 Mich. App. 63, 67, 568 N.W.2d 138 (1997) (“The language whereby the participant agreed to assume ‘any risks inherent in any other activities connected with this event in which I may voluntarily participate’ and to take responsibility for ‘any and all injuries (including death) and accidents which may occur as a result of my participation in this event . . . ‘ clearly [**18] expressed defendants’ intention to disclaim liability for all negligence, including their own.”).

6 None of the cases cited by Plaintiff discuss this line of cases. Instead, he relies upon older cases that do not hold that releases must include the magic words of “negligence” or “negligent acts” and do not substantively analyze whether “any” or “all” language covers negligence claims. See, e.g., Gen. Acc. Fire & Life Assur. Corp., Ltd. v. Finegan & Burgess, Inc., 351 F.2d 168 (6th Cir. 1965); Tope v. Waterford Hills Racing Corp., 81 Mich. App. 591, 265 N.W.2d 761 (1978). He also distinguishes this matter from a recent unpublished Sixth Circuit case, Fish v. Home Depot USA, Inc. 455 F. App’x 575 (6th Cir. 2012). There, the Sixth Circuit found that a ladder rental contract favored indemnification for several reasons: (1) the waiver included a rental “as is” provision; (2) the waiver had an acknowledgment that the plaintiff inspected the ladder; (3) the plaintiff had rented other equipment from the defendant before; and (4) because the plaintiff was renting and not purchasing the ladder, he was “undoubtedly aware” that others had used the ladder before him, and was therefore aware that there was a possibility [**19] that “latent equipment problems can be caused by ordinary wear and tear.” Id. at 580. Plaintiff distinguishes Fish, asserting that he did not agree to an “as is” provision,” had not dealt with Red Frog or the Warrior Dash before, did not inspect the course beforehand, and was not aware that the course would “become dangerous though the ‘wear and tear’ of other participants.” (Plf’s Resp., Dkt. # 8, at 10). Fish is not binding authority, and even if it was, it is not applicable to the instant matter because it still does not address the core issue of whether the Waiver’s “any” or “all” language covered Defendant’s own negligent conduct.

More recently, the Michigan Court of Appeals distinguished this line of cases in Xu v. Gay. In that matter, a man using a treadmill at a fitness center fell, hit his head, and died. 257 Mich. App. at 265. Distinguishing Skotak and Cole, the Michigan Court of Appeals rejected the notion that the parties intended to release the fitness center from liability stemming from its own negligence:

We find that the language in the alleged release is unambiguous, and clearly states that defendant would not assume responsibility for “any injuries and/or sicknesses [**20] incurred to [sic] me or any accompanying minor person as a result of entering the premises and/or using any of the facilities.” However, this provision does not inform the reader that he is solely responsible for injuries [*776] incurred or that he waives defendant’s liability by relinquishing his right to sue, nor does it contain the words “waiver,” “disclaim,” or similar language that would clearly indicate to the reader that by accepting its terms he is giving up the right to assert a negligence claim.

Id. at 275.

Here, as with Skotak, Cole, and Gara, the Waiver unambiguously covered Defendant’s own negligence. The Waiver warned Plaintiff that “enter[ing] Warrior Dash [was] a hazardous activity” and that it presented “extreme obstacles.” Plaintiff agreed to “assume all risks associated with competing in Warrior Dash” and acknowledged that there was “an inherent risk of injury when choosing to participate in recreational activities and programs.” Most critically, Plaintiff “voluntarily assume[d] the full risk of any and all injuries, damages or loss, regardless of severity, that [he] . . . may sustain as a result of . . . participation [in the Warrior Dash].” Likewise, he also agreed to “waive, [**21] release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me and from any and all claims . . . [including] tort . . . arising out of or connected with [his] participation in Warrior Dash.” 7 The Waiver therefore unambiguously covered Defendant’s own negligence. Finally and unlike Xu, the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

7 Plaintiff’s argument that “[t]here was nothing in Red Frog’s indemnity provision that warned participants that Red Frog’s agents would be interfering with the actual race or to notify James that there was potential that the risks of the race would be or could be heightened by the presence of Red Frog’s agents, or that injury could result from the negligence of Red Frog or its agents” misses the mark. (Plf’s Resp., Dkt. # 8, at 9) (contrasting with Sherman, see footnote 5). Whether the indemnity provision warned of certain negligent acts or not, just as in Skotak, any claim arising out of negligence is [**22] barred given the Waiver’s express and unambiguous language.

Notwithstanding this clear language, Plaintiff claims other language contained in the Waiver “gave James the false impression that Red Frog would not be negligent in the operation and performance of this racing event.” (Plf’s Resp., Dkt. # 8, at 10). For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.” Plaintiff omits, however, the remainder of the disclaimer, which provides that “participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.”

This argument is without merit. In Cole, the Michigan Court of Appeals rejected a similar argument in a personal injury case arising out of an accident at a horse-racing facility. There, the plaintiff “acknowledge[d] [**23] that due to the unique combination of dangerous factors in the restricted area associated with the stabling, exercising and training of a large number of horses, and the presence of tradespeople, jockeys, owner and other personnel in the area, there are inherent dangers in the restricted area which [the defendant] cannot eliminate after exercising [*777] reasonable care.” 241 Mich. App. at 14. In rejecting the argument that the “which [the defendant] cannot eliminate after exercising reasonable care” language limited the scope of the release (to not cover negligent acts), the court reasoned that the language “specifically addressed the dangerous conditions and inherent dangers in the restricted area of the racetrack.” Id. The “reasonable care” language was, therefore, “an unambiguous emphasis of the fact that being in the restricted area entails dangers that cannot be eliminated by exercising reasonable care.” Id.

Just as in Cole, the Waiver’s language here regarding Defendant’s commitment to conducting the Warrior Dash in a safe manner and to reducing risks cannot be read to carve out Defendant’s negligence from the Waiver’s scope. The very next sentence expressly warns participants of the [**24] “inherent risk of injury when choosing to participate in recreational activities and programs.” The disclaimer language, read in toto, and pursuant to Cole, serves only as “an unambiguous emphasis” that participating in the Warrior Dash carries a risk of injury. This is especially true when, as discussed above, read in conjunction with the fact that the Waiver releases liability with respect to “any and all injuries” sustained as a result of participation in the Warrior Dash. Id. at 14-15.

In the alternative, Plaintiff presents an interesting theory with respect to the Waiver’s enforceability: Defendant’s conduct — the emcee’s statements encouraging participants to dive head first into the mud pit — “constituted a waiver and modification of the release of liability.” (Plf’s Resp., Dkt. # 8, at 14). In sum, Plaintiff argues, “[t]his conduct led James to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.” (Id.)

To find an implied waiver, the conduct of the party against whom waiver is [**25] asserted must be inconsistent with strict compliance with the terms of the contract. H J Tucker & Associates, Inc. v Allied Chucker & Eng’g Co., 234 Mich. App 550, 564-65, 595 N.W.2d 176 (1999). Though Plaintiff does not articulate this theory as such, Plaintiff essentially argues a waiver by estoppel theory. “[A] waiver by estoppel implied from conduct focuses not on the intent or purpose of the waiving party but on the effect of its conduct on the other party.” 13 Williston on Contracts § 39:29 (4th ed). “To prove waiver by estoppel, a party need only show that it was misled to its prejudice by the conduct of the other party into the honest and reasonable belief that the latter was not insisting on, and was therefore giving up, some right.” Id.

Plaintiff’s argument, however, is untenable. Even assuming that Michigan law permits parties to orally modify a waiver and release, 8 the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries [**26] arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

8 Neither Plaintiff nor Defendant briefed this issue. The Court also notes that the Waiver does not include an integration clause.

[*778] C. Plaintiff’s gross negligence (Count II) and willful and wanton misconduct (Count III) claims9

9 These claims are not within the Waiver’s scope as “a party may not insulate himself against liability for gross negligence or wilful and wanton misconduct.” Lamp v. Reynolds, 249 Mich. App. 591, 594, 645 N.W.2d 311 (2002).

1. Plaintiff has stated a claim for gross negligence

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.” Xu, 257 Mich. App. at 271. Taking Plaintiff’s allegations as true, Plaintiff’s gross negligence count states a claim for relief. As Plaintiff emphasizes, Defendant not only made participants acknowledge that the Warrior Dash is a “hazardous” activity and that it presents “extreme obstacles,” it expressly enumerated rules regarding how participants [**27] were to enter the mud pit without doing so for other obstacles. Simply, Plaintiff has adequately alleged that Defendant was aware of the dangers presented by the obstacles throughout the Warrior Dash and especially those presented by diving headfirst into the mud pit. Despite this awareness, it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether injury would result. Cf. Kahn v. East Side Union High Sch. Dist., 31 Cal. 4th 990, 1012-13, 4 Cal. Rptr. 3d 103, 75 P.3d 30 (2003) (finding issue of fact regarding swimming coach’s recklessness where a student broke her neck after diving into shallow water after the coach, among other things, allegedly “ignored her overwhelming fears and made a last-minute demand that she dive during competition, in breach of a previous promise that she would not be required to dive”); Falgoust v. Richardson Indus., Inc., 552 So. 2d 1348 (La. Ct. App. 1989) (affirming apportionment of fault to pool owner who “not only failed to warn or reprimand plaintiff [for diving into a non-diving pool], but [who also] encouraged diving by doing it himself”).

This is therefore [**28] distinguishable from the case relied upon by Defendant where the plaintiff just alleged that the defendant “acted in a grossly negligent manner.” See Thomas v. Rijos, 780 F. Supp. 2d 376, 380 (D.V.I. 2011). Moreover, that “there are no specific allegations that [Defendant] knew when Plaintiff approached the mud pit that he would dive into it or that he would be injured,” as Defendant asserts (Def’s Br., Dkt. # 4, at 19), is irrelevant to the present inquiry. Defendant’s knowledge of Plaintiff’s intent before he dove into the mud pit is immaterial as to whether the act of encouraging Plaintiff to dive head first demonstrated a substantial lack of concern for whether injury would result. 10

10 Defendant urges this Court to “take into account the undisputed fact that Plaintiff expressly acknowledged the danger prior to encountering it when he signed the Waiver . . . and was specifically instructed not to ‘dive or enter the mud pit head first.'” (Def’s Br., Dkt. # 4, at 19). Such an argument has no bearing on whether Defendant demonstrated a substantial lack of concern for whether an injury results with respect to Plaintiff’s claim that Defendant encouraged Plaintiff to dive head first into [**29] the mud pit. This is not to say that Defendant’s argument might not have some merit down the road as, for example, Michigan law requires the allocation of damages “in direct proportion to the person’s percentage of fault.” M.C.L. § 600.2957(1).

[*779] In sum, Plaintiff has stated a claim for gross negligence.

2. Plaintiff has stated a claim for willful and wanton misconduct

Willful and wanton misconduct is separate and distinct from gross negligence. Xu, 257 Mich. App. at 269 n.3 (citing Jennings v. Southwood, 446 Mich. 125, 138, 521 N.W.2d 230 (1994)); Burnett v. City of Adrian, 414 Mich. 448, 462, 326 N.W.2d 810 (1982) (Moody, J., concurring) (“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous [**30] to another.” Miller v. Bock, 223 Mich. App. 159, 166, 567 N.W.2d 253 (1997) (citing Jennings, 446 Mich. at 137). Michigan’s Supreme Court has clarified that “willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.” Jennings, 446 Mich. at 138 (1994) (emphasis omitted). It is, therefore, “in the same class as intentional wrongdoing.” Boumelhem v. Bic Corp., 211 Mich. App. 175, 185, 535 N.W.2d 574 (1995).

The seminal Michigan case on point with respect to willful and wanton misconduct is Burnett v. City of Adrian. In that case, the City of Adrian created Lake Adrian to use as a reservoir for its water treatment facilities. 414 Mich. at 458. According to the plaintiffs’ complaint, a 14-year old boy drowned after walking off the edge of a submerged structure that the City of Adrian failed to destroy or level when it created the lake. Id. The boy drowned after being swept away by “an unnatural current” created by the submerged structure. Id. Finally, the complaint alleged that “that the city [**31] knew that the structure existed from maps at the time of flooding and from the fact that the structure is visible when the water level is low; that the city knew or had reason to know of the potential harm created for swimmers, including children, who used the area; and that it failed to avert the danger by destroying the structure, fencing the lake, or posting warnings.” Id. at 458-59. Taking these allegations as true, the Michigan Supreme Court found that the plaintiffs “barely” asserted enough facts to make out the claim that the City of Adrian “was indifferent to the likelihood that catastrophe would come to a member of the public using the lake, an indifference essentially equivalent to a willingness that it occur.” Id. at 456.

Applying this standard, it is plausible — though barely — that Defendant’s actions amounted to willful and wanton misconduct. The Michigan Supreme Court has often noted that “[i]t is most difficult to determine, in a particular case, where negligence ends and wilful and wanton begins.” Id. at 477 (Moody, J, concurring) (citing Goss v. Overton, 266 Mich. 62, 253 N.W. 217 (1934) and Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851 (1932)). “This caution is appropriate in the case at hand, [**32] because the [gross] negligence claim stands.” Bondie v. BIC Corp., 739 F. Supp. 346, 352 [*780] (E.D. Mich. 1990). Here, a reasonable jury might conclude that the act of encouraging participants to jump head first into the mud pit despite knowing the risks to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]” Burnett, 414 Mich. at 456. The Court reaches this conclusion with some significant reservation as to whether discovery will produce such facts. However, giving Plaintiff the benefit of every doubt and knowing that he need only “nudge[ his] claims across the line from conceivable to plausible” in order to survive a motion to dismiss under Rule 12(b)(6), Twombly, 550 U.S. at 570, it seems appropriate here to allow Plaintiff the opportunity to try to develop his case. This is particularly so given that the facts set forth in Burnett also “barely” stated a claim and that Plaintiff’s gross negligence claim also survives. Accordingly, Plaintiff has pled enough facts sufficient to plausibly [**33] state a claim for willful and wanton misconduct.

IV. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Dkt. # 4) is partially granted. Accordingly, the Court dismisses Plaintiff’s Count I (negligence) with prejudice.

IT IS SO ORDERED.

Dated: October 22, 2013

/s/ Gerald E. Rosen

GERALD E. ROSEN

CHIEF, U.S. DISTRICT COURT


What do most attorneys think of extreme sports? ABA article provides some idea of their thinking.

However, even the American Bar Association (ABA) article is almost evenly written. What it does is bring up additional way’s plaintiff’s attorneys are attacking releases. It is well worth the read.

Here are some interesting quotes from the article.

However, unlike in other sports, the inherent risks aren’t always obvious; indeed, they are often intentionally magnified to titillate participants and crowds. This pushes the new sport somewhat outside the traditional framework of negligence and assumption of risk.

There seems to be a theory that the inherent risks are part of the necessity of a release. I’m not sure I agree, but I always suggest you include the risks, inherent and otherwise in your release.

Indeed, Tough Mudder racers often brag about having “survived” the event after signing what they like to call the “death waiver,” essentially a catchy phrase for any liability waiver that encompasses death. Obstacle course racing companies routinely tout the fact that participants could die during their event, upping the ante for thrill-seekers.

You can die doing anything. Consequently, you should point out in any release that a participant can die. I’ve known of a two lawsuits where someone had a heart attack while rafting, then fell in the river.

But critics argue that the waivers don’t adequately disclose the full panoply of dangers, and that many of the obstacles are made unnecessarily perilous.

The issue here is if the injured plaintiff can argue and prove that you purposely left out risks your release may be void. You are always at risk if you increase the risk of an activity and do not inform your guests.

“Lines have to be drawn between what the participants are signing up for and what they’re actually getting,” says Sengupta’s attorney, Robert J. Gilbert of the Andover, Mass.-based firm Gilbert & Renton. “Participants sign up for the challenge, but it’s less clear that they sign up for the dangers—particularly the undisclosed dangers or gratuitous dangers.”

Here again, this is another argument showing that you cannot mislead your guests or participants.

For example, defendants typically cannot escape liability in the event that their conduct in any way increased the risk of the activity, say, purposely shaping a ski jump to be wantonly dangerous or failing to put water stations on a marathon course. Another question pertaining to the enforceability of a waiver is whether the risk could be removed without changing the nature of the activity.

The first issue is obvious. The second, whether the increased risk can be changed, is where people, in these case writers and attorneys get lost. They do not understand the personal and emotional goals someone receives when they reach these goals or participate in these sports.

The following quote sums up the legal issues that you must be aware of!

On the one hand Tough Mudder holds up signs saying ‘Remember you signed a death waiver’ … while trying to downplay the same risk that they’re encouraging their participants to accept. That leads to questions of fraudulent inducement.”

Fraudulent inducement voids a release, and in some states would make you liable for additional damages and/or claims of negligence greater than ordinary negligence.

What I did get a kick out of was the sign from the Tough Mudder events.

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Based on the sign, I think you opted out of death, right?

Read the article and read the comments both are enlightening.

See: Extreme sports are more popular than ever, prompting questions about legal liability.

What do you think? Leave a comment.

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

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