Sports Insurance Blog

Fitness Instructor Insurance and Health Club Insurance is in high demand due to frequent gym injuries.

According to the Consumer Product Safety Commission, the following injury statistics occurred in 2009:

*  1500 emergency room visits resulting from equipment related
     mishaps in gyms

*  50,000 emergency room visits from home exercise equipment
    incidents including treadmill falls, exercise ball falls, elastic stretch
    band hits to face, and dropping free weights on feet.

*  Treadmills are the number one cause of equipment related injuries
     with 575 occurrences of falling off, tripping over, and tripping on.

*  Weight machines and free weights caused 224 injuries.

*  Common gym equipment related injuries include broken ankles,
    fractured arms, fractured legs, and fingertip amputations.

Fitness instructors cite the following reason for gym/exercise related injuries:
*  Inattention due to Ipods, cell phones, and reading.
*  Using equipment for the first time without proper instruction
*  Working out too hard, too soon after a period of inactivity.

Source: http://www.msnbc.msn.com/id/35127528/ns/health-fitness/

Should players with HIV / AIDS be allowed to participate in youth sports leagues?  We have seen an increased number of phone calls requesting direction as to whether or not teams and leagues should allow players that are infected  HIV / AIDS to participate.  Although this is a controversial subject, we hope you find our article, HIV In Youth Sports, both useful and informative.

In many of our national organizations, criminal background checks of coaches and volunteers are required in order to screen for sexual offenders. Throughout our risk management materials you will find that regardless of a requirement, these screenings are highly recommended.   But what should a league do when the known sex offender (per public record) is a parent or a spectator?

The first direction would be to consult your local attorney since they would be familiar with the particular states laws.   Also make sure that the organization is following its own rules and bylaws. The general liability policies that we write for the national organizations may require that volunteers be screened, but not the parents that are not volunteers.  This is because as a general rule, only a volunteer who has repeated access to youth is in a position to “groom” them for molestation. 

Whether background checks are required or not, a lot can be accomplished by educating the team/league, the volunteers and the parents on inappropriate boundary invasions.  More information can be found in our article Protecting Children Against Sexual Abuse and Molestation.

The American Sports Medicine Institute has released its position statement on best practices for youth pitchers in avoiding injuries.

 Of particular interest is the statement that throwing curve balls is not a risk factor in youth shoulder and elbow injuries but……. this does not mean that youth pitchers don’t need to take precautions before doing so.

 The position statement addresses how to avoid overuse, mandatory 4 month rest periods, and pitch counts.

www.asmi.org/asmiweb/position_statement.htm

 Source: ASMI

“Hundreds of tractor-trailer and bus companies ordered to shut down because of federal safety violations ranging from suspended licenses to possible drug use have stayed on the road by using different names, investigators say.”

 “The GAO report found that at least 20 of the roughly 220 commercial bus companies that had been fined and ordered out of service in 2007 and 2008 by federal regulators evade compliance by setting up shop under a new name…”

 This is a follow up to a prior blog posting entitled “Athletes At Risk While Transported By Charter Buses” which exposed the dangers and possible liability risks of hiring a service without checking out their background. 

 Source: http://www.msnbc.msn.com/id/32213170/ns/us_news-life/

Personal Training can be a tricky trade when you are training a healthy client. Throw into the mix heart disease, such as coronary artery disease, and your challenges rise as does your increased liability.  Clients come to you for advice because you are the “professional” in this field.  Make it a point to learn about specific diseases or conditions that you discovered about your client during your initial interview PRIOR to putting them on a routine, working them out in the gym or providing other advice.  Unfortunately, some may assume that because they have purchase personal trainer liability insurance, they are protected from being sued. It is not a question as to if you will get sued, but when you will get sued. You always want to make sure that you have detailed documentation for all of your clients, because you don’t know which one it will be that is on the other side of the table.

An article that I just recently came across from NASPRO is the Key Points for the Personal Trainer and Clients with Coronary Artery Disease.  Make it a point to read articles such as this as well as the constantly changing research and developments found at the American Heart Association.

Kim Marshall was injured while working out on a treadmill at Bally’s in Tacoma, Washington.  As a result of her injuries, Marshall filed suit against Bally’s Pacwest; Life Fitness, the company that manufactured and owned the treadmill, and Washington Athletic Repair, the company that installed and maintained the treadmill.  There were some discrepancies as to what actually caused Marshall to be ejected from the treadmill, and it was this discrepancy that led to the dismissal of her suit.

The following facts where established in Marshall’s original deposition:  She set the treadmill at 2.5 miles per hour for fifteen minutes.  The treadmill abruptly stopped at thirteen minutes.  Ms. Marshall reset the machine, but it restarted at 6.2 miles per hour instead of the slower pace she had initially programmed.  This sudden start threw her backward, causing her to strike her head against a plexiglass wall.  The blow to the head resulted in a brain injury.

However, when questioned at trial, Ms. Marshall said she could not remember anything after resetting the machine.  She could not recall the speed the machine restarted at or even if she was thrown backward into the plexiglass wall or to the side against something else.  Her attorney stated that she had a two-week memory lapse following the brain injury.

The trial court concluded that once she testified in court that she could not remember what actually happened after she reset the treadmill, she could not point back to her deposition and assert that pervious testimony as fact.  And because she could not tell the court what the machine did when she reset it, she had no proof that the machine malfunctioned at all.  The court reasoned it was just as likely that she tripped, fainted, or fell after resetting the machine because there is no other evidence to establish what happened.

Marshall attempted to win on another legal theory called spoliation, which is the intentional destruction of evidence.  This theory is based on the assumption that, when one party intentionally destroys evidence relevant to a case, that evidence must have been unfavorable to them.  In this case, Marshall’s injuries occurred in May 1993, and her attorney did not ask to examine the treadmill until September 1997.  After Marshall’s injury, the treadmill remained in use at Bally’s.  In November 1993, Washington Athletic replaced the CPU in all Life Stride 9500 treadmills, including the one at issue.  Marshall’s attorney had not requested that the CPU be preserved.  That same treadmill remained operational until April 1997, when its frame broke.  At this time, the machine was returned to Life Express for replacement.  The court concluded that, because Marshall’s attorney did not request to inspect the machine until four years after the incident, Bally’s could not be held accountable for having destroyed evidence.

Finally, the court also took into account the waiver clause in Ms. Marshall’s Membership contract with Bally’s.  The clause stated, in part, that the club member is “voluntarily participating in these activities and assume(s) all risks of injury… that might result” and that the member agrees “to waive any claims or rights (the member) might otherwise have to sue (Bally’s) a factor, the court took into consideration when dismissing Marshall’s claim the fact that she could not prove that her injury resulted from any malfunctioning of the treadmill she was using.

  Marshall V. Ball’s Pac West, Inc., 972 P.2d 475, (Wash.1999).

In My Opinion  Proper accident and injury reporting can go a long way in documenting proper practice and enhance the ability to succeed in litigation.  In the above case, if witnesses observed that the plaintiff tripped, rather than her claim that she was thrust from the treadmill the claim could have immediately been dismissed, thus saving on expensive legal defense fees.  Prompt accident investigation procedures including written statements of witnesses are important.

Article Compliments of From The Gym To The Jury, Volume 1, Number 1

General Liability insurance policies for sports and recreation organizations sometimes contain a potentially dangerous exclusion entitled “Collapse of Temporary Structure Exclusion.”

Presumably, the purpose of this exclusion is to protect the General Liability carrier against paying a claim in the event of collapse of bleachers or similar structures such as tents, signs, billboards, and fences that are temporary in nature.

Unfortunately, the exclusion does not define “temporary”.  Does “temporary” mean a one time event?  A season?  A Year?  Are any bleachers that can be moved considered temporary?

Bleacher collapse is a serious event in terms of both the number of spectators that can be injured and their severity potential.  Because of the seriousness of these bleacher collapse incidents, sports organizations can’t afford to have this ambiguous exclusion on their General Liability policy.

Source:  John Sadler

Standard General Liability policy forms automatically include coverage for many types of contractual liability that may be assumed for tort liability for injuries to third parties in certain types of hold harmless and indemnification provisions. The Contractual Liability Limitation endorsement can take away needed protection for a sports organization that enters into certain contracts

For example, a league may send a team to play in a travel tournament and the agreement with the tournament host may include an indemnification and/or hold harmless provision that requires the travel team and its administrators to contractually assume all liability for injuries to players during tournament events, even if due to the sole negligence of the tournament host. In the event of a player injury during tournament host provided entertainment such as a swimming party, the travel team would be contractually responsible for all damages even though liability for such would normally belong to the tournament host but for the hold harmless / indemnification provision. The presence of the Contractual Liability Limitation in this example would likely remove all General Liability coverage for the travel team and may subject its administrators and coaches to personal liability.

The presence of the Contractual Liability Limitation endorsement should be negotiated out of a General Liability policy for a sports organization. If negotiations are not successful, a new carrier should be found upon renewal.

Source: John Sadler

The punitive damages exclusion on a General Liability policy can have a devastating effect for sports and recreation organizations such as teams, leagues, recreation departments, camps, etc. and their directors, officers, employees, and volunteers. General Liability policy forms containing this exclusion should be avoided since coverage for punitive damages is generally available in the market place.

Most of the lawsuits that arise in the sports and recreation context for participant and spectator injury ask for punitive damages in addition to regular compensatory damages. This is why the lawsuit papers use high voltage words to describe the wrongful conduct such as wanton, willful, grossly negligent, acting with reckless disregard for the safety of others, etc. Punitive dames are meant to punish the wrongdoer by making an example for others to see.

Since most lawsuits ask for punitive damages, it makes sense that coverage for such is desirable in order to reduce the worry factor.

Punitive damages may not be insurable in some states as such coverage may considered to be a violation of public policy. Various state statutory codes that limit coverage for punitive damages often distinguish between directly assessed punitive damages and vicariously assessed punitive damages. Directly assessed punitive damages are those that are awarded directly against the wrongdoer. On the other hand, vicariously assessed punitive damages are those that are assessed against a defendant that was not directly negligent but instead had liability imputed under agency principal law. For example, a corporation may be vicariously liable for the acts of its employees.

The following states have laws that limit the insurability of punitive damages that are directly assessed against the defendant: AR, CA, CO, CT, FL, IL, IN, KY, LA, ME, MA, MN, MT, NV, NJ, NY, ND, OH, OK, OR, PA, RI, TN, UT, and VA.

The following states have laws that limit the insurability of punitive damages that are vicariously assessed against the defendant: NY, OH, UT, and VA.

A number of states are currently undecided on the issue of insurability of punitive damages.

Source: John Sadler