Re: Re: IAHA insurance exclusion

[Sue Brown <sbrown@wamedes.com>]

At 10:02 AM 1/4/2000 -0800, Duncan Fletcher wrote:
>Sue -
>
>The only reason you need insurance is because of your negligence. Your
>negligence (or deliberate act) is almost the only basis for someone winning
>a lawsuit. If you aren't ever negligent, then you don't need insurance. And
>negligence is not all that well defined - plantiffs lawyers are constantly
>looking for new theories of negligence and sometimes winning based on those
>new theories. Yes, they have to prove it, but the standard of proof is
>preponderance of the evidence not reasonable doubt and you get to help prove
>it - no fifth amendment. Discovery can be lots of fun. I am not an
>attorney - the lawyers on the list might want to expand on this.
>
>Duncan Fletcher
>dfletche@gte.net

Some of what you say is accurate...but...if we only got insurance because of
negligence, then actually getting insurance would imply a propensity for
negligence.  Yes, it can help for those situations, but proven negligence
would
ultimately result in you possibly *not* being able to get insurance in the
future.  You have insurance because of liability.

The difference now is between liability and negligence...liability being
responsibility, accountability, or any legal obligation whereas negligence is
responsibility for intentional harm, failure to act as a reasonable person
would be expected to act in similar circumstances, or an action or omission in
reckless disregard of the consequences to the safety or property of another. 

I carry a very good insurance policy on our place and on my teaching.  It's
very inclusive -- covers liability on residence, related private structures,
personal property, farm buildings and structures, and unscheduled farm
personal
property...commercial liability on boarding, training, commercial saddle
animals, and riding clubs/academies...care, custody, and control...and
personal
and advertising injury liability.  

We *do not* carry this in anticipation of being negligent -- we carry it
because, even if you are found totally innocent in a situation, legal costs
could send you down the tubes without it.  Also, if anyone is injured while
being involved with a horse on your property or while using your equipment,
there isn't really any release form that can totally keep you immune from the
injured party's insurance company or lawyer bringing a suit against you. 
Having a good, inclusive liability release form will definitely help (and may
save your butt!)  It will not, however, save you from the lawyers' costs...but
your insurance will.  If it shows up that you were negligent, you will be
covered for that incident...you may or may not be insured with that company in
the future.  If you are allowed to continue with the insurance, the cost will
be astronomical.

IAHA gets around this by not covering negligence.  If you are found negligent,
you're on your own...so you better have your own policy.  The majority of
suits
brought against trainers/farm owners are not for incidences that were the
result of negligence...but insurance companies, family members, or the injured
party years later -- trying to recoup expenses and with the possibility of
winning a suit if they find an inadequate release form or no release form,
situations involving poorly written contracts or no contracts at all, poorly
kept paperwork or reports relative to distant incidences, and even misplaced,
misunderstood sympathies.  I suppose that you could argue that any of these
incidences would be negligences and, in a sense, they would be -- as in an
omission or an unintentional inadequacy...but they would not necessarily fall
under the legal definition of negligence.  Again, a suit in this case may find
nothing amiss, but would still leave you with horrendous legal bills if you
didn't have insurance. 

If you have any questions about insurance policies, a good equine lawyer for
reference is Julie Fershtman, author of _Equine Law and Horse Sense_.  I've
had
the opportunity to hear her lectures several times and they have been real eye
openers -- and great preparation for avoid legal pitfalls in the horse
business.  I'm not a lawyer and I don't even claim to have a good grip of all
of the ramifications if legal stuff...just found out enough to make sure I
wouldn't lose the farm if anything should happen...and then go around
periodically to make sure that the place and my equipment is safe, the horses
are well taken care of, and so on. 

Okay...anyone still awake?? ;-) 

Sue


sbrown@wamedes.com
Tyee Farm
Marysville, Wa.


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