Ed Tolley, the athletic association attorney, noted that the settlement was a sign that the “athletic association had committed to helping Bryant all along”. 

However, Bryant claimed that an official of the school failed to complete the paperwork for the $500,00 policy. 

Source:

http://www.insurancejournal.com/news/southeast/2010/02/26/107703.htm

A non owned auto is one that is not owned by the sports or recreation organization, but is instead owned by a staff member (employee or volunteer) or borrowed from an organization such as a church. When these non owned autos are involved in an accident while on association business: the following parties can normally be sued: the owner of the vehicle, the driver, and any organization for whose purpose the errand is being run. In other words, the sports organization can be sued for their vicarious liability of their staff member.

Its important to note that Non Owned Auto Liability insurance does not cover the driver or damage to the vehicle. It only covers the association that is the named insured on the policy. The driver will have to rely on his or her own Personal Auto Insurance Policy to provide liability and physical damage protection.

I just came across some excellent loss control material from Philadelphia Insurance Company on the topic of controlling the Non Owned Auto Liability risk in the sports and recreation context. This exposure represents an infrequent, but high severity risk where damages can easily exceed $1,000,000. The insurance carriers that insure sports and recreation organizations are very concerned about this exposure because its difficult to collect the proper premium for a low frequency – high severity risk. Sports organizations need to take this risk very seriously and implement the recommended controls.

Here are some links that you will want to check out:

Case studies on actual Non Owned Auto Liability losses in the non profit association context where damages exceeded $1,000,000: http://image.exct.net/lib/fecd15717367027c/m/1/InvestigationForm2.24.10.pdf

Personal vehicle usage precautions: http://image.exct.net/lib/fecd15717367027c/m/1/Employee-Volunteer.Use.of.PersonalVehicles2.19.10.pdf

Driver eligibility criteria: http://image.exct.net/lib/fecd15717367027c/m/1/Driver+Eligibilty_4400.pdf

Driver training and motivation: http://image.exct.net/lib/fecd15717367027c/m/1/Driver+Training+and+Motivation_2200.pdf

Source: Philadelphia Insurance Company, Hired And Non Owned Automobiles, Large Loss Lessons Learned

 Great American unsuccessfully argued that the certificate of insurance did not apply to the second team since its name was not listed on the certificate of insurance. The Supreme Court, Appellate Division, Third Department, New York disagreed by reasoning that neither the certificate of insurance nor the policy included the names of any of the teams but instead listed only the league and its member teams.

Great American also argued that two separate policy exclusions would be applicable. The first was a Design Defect And Structural Maintenance Exclusion and the second was an exclusion stating that Additional Insureds were not covered for their sole negligence. However, the court reasoned that the latter exclusion could apply but said that the insurance carrier waived its right to use it as a defense since no written disclaimer was sent specifically mentioning their intent to use such exclusion.

In my opinion, had the carrier given proper notice, it is likely that they could have properly denied the claim for the additional insured field owner since the field owner was likely solely negligent in the slip and fall accident. The only way for the team to have shared in this negligence would have been due to lack of supervision or if the liability had been contractually assumed in a lease or license agreement.

 John Sadler

 Source: Rough Notes, February 2010

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/

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.

 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/

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.

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