Tuesday, March 26, 2019

Great website on insurance issues in car-sharing programs

I first posted about insurance risks in car-sharing programs back in 2011.  Car-sharing programs allow car owners to rent their own cars out to others.  They differ from Uber (which was in its infancy in 2011) and Lyft (which did not exist then) in that the vehicle owners do not drive passengers themselves -- they hand their cars over to others.  Some of the obvious insurance issues include whether or not the owners have adequate insurance, whether or not the renters have adequate insurance, and whether or not passengers have adequate insurance. 

It is always a thrill to find like-minded people.  Here's a link to a website called CareShareProtect, which is dedicated to educating people about insurance issues in car-share programs.  It will tell you state by state, by type of program, where there might by an insurance gap.

Thursday, March 14, 2019

Massachusetts health clubs may not demand that customers sign waivers of liablity

Frequent readers of this blog know that I abhor waivers of liability, especially (but not only) waivers that parents have to sign so that their minor children can participate in activities such as summer camps or public school field trips.  Waivers of liability are the written forms you are sometimes required to sign stating that if you get hurt (or your child gets hurt) because the company making you sign the waiver did something wrong you cannot sue that company.  Here's a link to some of my posts on the subject.

A Massachusetts statute makes it illegal for a health clubs to require waivers of liability.  Massachusetts General Laws ch. 93 §80 provides:

No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer's activities at the health club.

A health club is not just a gym.  It is defined in Massachusetts General Laws ch. 93 §78 as:

each facility or location or group or chain of facilities or locations, in which any person, firm, corporation, partnership, unincorporated association, franchise or other business enterprise offers facilities for or instruction, training or assistance in the preservation, maintenance, encouragement or development of physical fitness, conditioning or well being. Such term shall include, but not be limited to, health spas, sports, tennis, racquet ball, platform tennis and health clubs, figure salons, health studios, gymnasiums, weight control centers or studios, martial arts and self-defense schools, or any other similar course of physical training. 

There's not a lot of caselaw interpreting the definition.  It is not a stretch to say that it includes, among my kids' various sporadic activities, providers of instruction or facilities for rock climbing, trampolining, gymnastics, and ice skating.  One could argue that  the definition of health club is broad enough to include any organization that has as part of its mission physical well being.  Could summer camps be included?  Petting zoos?  Afterschool programs?  School camps?

Whether or not such organizations are included in the definition (and unless the legislature clarifies the law, only the courts can determine that), no company should require waivers of liability.  The proper response to the potential for injured patrons is adequate insurance or self-insurance.  Any other solution is unethical.

(Let me be clear, however, that I do not believe that a gym should be liable simply because someone gets hurt using the facilities.  I am not interested in suing if my child falls off a balance beam at gymnastics camp.  But I do want my child to be fairly compensated if a balance beam falls on her.)