Friday, November 22, 2013

Still fighting to get releases of liability removed from Boston Public Schools permission slips

I have posted here, herehere, and here on my efforts to have releases of liability removed from field trip permission slips Boston Public School parents are required to sign.

This past Wednesday I returned to the Boston School Committee.  I spoke during the public comment period and pointed out that last February the BSC had requested that the BPS legal department report back to it on whether other school systems in Massachusetts require similar releases of liability.  That report has not happened yet.  I again requested that the releases of liability be removed from permission slips. 

The following is the handout I gave to the School Committee members (slightly redacted to protect the privacy of my children): 



THE ISSUE:  Boston public school permission slips require parents to sign a release of all rights if their child is injured on a field trip. 


The release includes “any acts of negligence or otherwise from the moment that my student is under BPS supervision and throughout the duration of the trip.” 


In the release, parents agree “to indemnify and hold harmless BPS and any of the individuals and other organizations associated with the BPS in this field trip from any claim or liability arising out of my child’s participation in this field trip.” 




I spoke during the public comment period on this issue at the School Committee meeting of February 27, 2013.


My written comments are attached. 


Schoolcommittee member Mary Tamer requested a report back from the legal department on what other school systems in Massachusetts are doing.


I sent a follow up email in the spring and was told by Chairperson O’Neill that the School Committee would reach the issue but not before the conclusion of the current (2012-2013) school year.


I sent another email a few weeks ago to which I received no reply.


I am therefore here to again request that releases of liability be removed from field trip permission slips.




First, this is not the right question to be asking.  Boston is the largest and the best school district in Massachusetts, and has among the most resources to determine what is right.  We should lead other school districts, not follow them.


Second, there is a great deal of variation; however, I am not aware of any school district that has a release as comprehensive as Boston’s.  I have attached permission slips from Brockton and from Chicago, which contain no waiver of liability.  I have also attached a permission slip from New York City, which releases liability “except if due to the negligence of school officials.” 




I have attached an article in Massachusetts Lawyers Weekly which covered the issue on April 18, 2013.


BPS spokesperson Lee McGuire was quoted in the article.  He made two statements with which I disagree.


First, he stated that Massachusetts courts have upheld school releases of liability.  That is incorrect.  The case he cites, Sharon v. City of Newton, 437 Mass. 99 (2002), upheld releases in voluntary afterschool activities -- in that case, cheerleading.  It specifically reserved the question of whether a release of liability would be upheld in the context of a required school activity.


More importantly, McGuire asserted that the waivers of liability allow the schools to continue to offer field trips.  That is simply the wrong approach.  The BPS and its students are best protected by insurance, which is a cost of doing business, not by a waiver which allows entities to avoid responsibility for their own negligence.  If a child is seriously injured on a field trip and liability has been released, then ultimately that child will be taken care of by taxpayers through public programs that assist people with disabilities.  In the meantime the child’s family has not only suffered as a result of the child’s injury but has possibly been bankrupted by the cost of care.  It is much fairer and better for everyone -- the BPS, the students, the parents, the taxpayers -- to simply require insurance. 





The release of liability should be removed from field trip permission slips.  Instead, the BPS should require that its partners have adequate insurance to protect students in the event that they are injured as a result of negligence.




I request that the school committee get back to me with a response by December 1, 2013.




I am a lawyer who specializes in liability insurance issues (“insurance coverage”).  As such, I spend a lot of time thinking about the purposes served by insurance,  about how risk should be reasonably delegated, and about the devastating impact on individuals and families when risk is not delegated reasonably.      

Wednesday, November 20, 2013

Settlement mills and insurers

Tina Willis Law Blog has an article discussing a 2009 law review article called Run-of-the-Mill Justice, about so-called settlement mills, large-volume plaintiffs' personal injury firms that acquire most of their clients by advertising.

Towards the end of the law review article the author discusses the advantages to insurers of dealing with those types of firms.  The article posits that the insurers end up paying a lot of low-value cases for more than they are worth, but in exchange they are able to settle high -value cases at a steep discount.

I began my career as an insurance-defense attorney and I still do quite a bit of insurance defense work, most of it indirectly on a subcontract basis.  In the hundreds of cases I have defended or participated in defending over the years, only a small handful have been brought by the types of firms discussed in the article, although they certainly exist in this state.  My experience was that the attorneys that handled them were average:  certainly no standouts in their representation of their clients, but they knew what they were doing. 

Insurance defense attorneys tend to only see the more interesting cases:  cases that go into suit rather than settling pre-suit because there is a question over liability or the case won't settle for its reasonable value as perceived by the adjuster.

Nevertheless, the idea that insurance companies have a symbiotic relationship with plaintiffs' mills does not ring true to me.  I have worked with many adjusters and their supervisors, both on the side of the insurer/insured and on the side of the claimant.  I simply can't imagine any department settling low value cases for more than they're worth in the expectation of an easy settlement in a high value case.  That's the sort of allegation that I would expect the state attorney general to look into, as it would be a large volume unfair settlement practice.

Wednesday, November 6, 2013

1st Circuit holds that reasonable expectations doctrine does not trump unambiguous policy language

I posted here about the United States District Court case of Clark School for Creative Learning, Inc. v. Philadelphia Indem. Ins. Co., 2012 WL 6771835 (D. Mass.).  In that decision the court held that an exclusion for known circumstances revealed in a financial statement applied to a claim that a school had misused a donation.  The exclusion excluded claims "arising out of, directly or indirectly resulting from or in consequence of, or in any way involving" any circumstances disclosed in a financial statement that was attached to the policy.  The financial statement referenced the gift at issue.

 In Clark School for Creative Learning, Inc. v. Philadelphia Indem. Ins. Co., __ F.3d __, 2013 WL 57337339 (1st Cir.) the United States Court of Appeals has affirmed the ruling. 

The court held that the plain language of the exclusion excluded coverage because the loss "involved" the gift disclosed in the financial statement. 

The court rejected the school's argument that the reasonable expectations of the parties were that the exclusion would not apply to a lawsuit over the gift, but only to lawsuits over the school's financial difficulties discussed in the financial statement.  The court held that even if the school could have reasonably expected coverage, the reasonable expectations doctrine does not apply when policy language is unambiguous.