Archive for the ‘General Liability’ Category

The Gamble of Being Underinsured

The risks can be catastrophic

Being underinsured is just as big a mistake as being uninsured. It’s no secret that insurance is one of those necessary purchases that buyers resent. But it’s also no secret that purchasing the correct coverage has protected countless people and organizations from potentially catastrophic financial circumstances.

Sports organizations are often run by volunteers who aren’t aware of the potential risks to which their league and players are exposed. This often results in lack of coverage – for all the wrong reasons. Thinking ahead is your insurance agent’s job. He or she has seen it all and knows anything can happen to anyone at any time.

What’s behind the lack of insurance?

Many sports administrators mistakenly believe that they don’t need to buy Accident and General Liability insurance to cover their sports programs for various reasons. After more than 25 years in the sports insurance industry, I’ve heard every excuse in the world for such decisions. Here are the top four:

  • “We’ve never experienced a serious injury or lawsuit.”  The fact is that sports lawsuits tend to be infrequent but have a high potential for severity in terms of potential damages owed. Some sports organizations may go over five years without a serious incident, but it’s just a matter of time.
  •  “Our waiver/release forms will prevent lawsuits.” The use of a well-drafted waiver/release form is a great tool under some circumstances. However, it won’t prevent a lawsuit from being filed. Even if the waiver/release does result in the lawsuit eventually being dismissed, it may still cost $10,000 to $20,000 in legal defense fees to get to that point.
  •  “Volunteer immunity statutes will prevent lawsuits.” State and federal volunteer immunity statutes are a positive step in the right direction. However, they typically have too many loopholes and exceptions that limit their effectiveness. For example, most immunity statutes exempt protection in the event of grossly negligent behavior, willful or wanton conduct, or the reckless disregard for the safety of others. Most lawsuits make these allegations and the judge has to sort out if they have any merit. All this takes time, and the more time it takes to sort this out, the greater the legal fees. In addition, these statutes don’t protect paid staff and the sports organization as an entity itself.
  •  “Our employees/volunteers/administrators provide their own liability policies.” Many sports organizations will leave it up to the individual volunteers or administrators to protect themselves through Homeowner’s Liability, Personal Umbrella, or Coach Certification Liability policies. This can be a dangerous strategy for many reasons. Homeowner’s Liability and Personal Umbrella policies may include an exclusion for lawsuits arising out of activities of the insured person as a sports volunteer. Furthermore, they won’t protect against the non-bodily injury or non-property damage lawsuits that a Directors & Officers policy may protect against such as discrimination, wrongful termination, failure to follow own rules or bylaws, etc.

The insurance policies sports organizations need

Below is a list of the most important insurance policies that most community-based sports organizations such as teams, leagues, and municipal recreation departments should carry.

  • Accident insurance pays medical bills on behalf of injured participants.
  • General Liability responds to lawsuits arising from bodily injury, property damage, and personal/advertising injury.
  • Directors & Officers Liability (or Trustees Errors & Omissions for municipal recreation departments) responds to certain lawsuits not covered by General Liability, such as discrimination, wrongful suspension or termination, failure to follow your own ruGambling diceles/bylaws, and violation of rights of others under state, federal, or constitutional law.
  • Property/Equipment insurance covers buildings, contents and equipment against loss due to fire, vandalism, theft, etc.
  • Crime insurance covers employee or volunteer embezzlement of funds or theft of property; forgery or alteration of checks by outsiders, and theft of money and securities by outsiders.
  • Workers’ Compensation may be required by state law for organizations with three or more employees. It pays benefits to injured workers for on-the-job injuries including medical bills, lost wages, disability lump sums, disfigurement lump sums, and death benefits.
  • Business Auto insurance covers liability and physical damage to owned, non-owned, and hired autos.

There are other types of policies that some organizations may require. For much more detailed information on this topic, please see 7 Critical Mistakes to Avoid When Buying Sports Insurance.

For assistance in determining which policies your organization needs, to have your questions answered, or to receive a quote, please call us at (800) 622-7370.

 

Frivolous Lawsuits in Sports

It could happen to you

Frivolous lawsuits take place all the time and the world of sports is by no means immune.  We get calls from people who want information on insurance because they are required to have it, not because they want it. Wear hear these comments all the time:

  • “We’ve never had a claim.”
  • “It wouldn’t happen to us, everyone likes our league.”
  • “We make everyone provide their own insurance, so we’re not responsible.”

Wow! Simply WOW!  These days, it’s no longer a question of if you’ll get sued, it’s WHEN you’ll get sued.   And asFrivolous Lawsuit2 often as not, it’s not what you did or didn’t do. It’s what someone perceives that you did or didn’t do that that can land you or your organization at the defendant’s table in a courtroom.   If you are involved in any capacity, whether as a coach, administrator, player, or volunteer, there is no other option than to make sure that your organization has coverage to pay in case you need the defense.

Below are just a few examples of  lawsuits that will make you make you say, “Hmm?”

  • Rodney Carroll, coach of the 16 & under Brunswick (Ohio) Cobras baseball team, was sued for $2000 by the father of his catcher after a 0-15 season in 1999. The grounds? Crummy coaching
  • Jason Abbitt sued the Vallejo (California) Babe Ruth Baseball League for 80 percent of his signup fee in 2002 because he only played in 20 percent of the games.  He sought $65, or $65 for every hit he had that season.

And these two stories were featured in Liable to Laugh 2004 (American Specialty Companies):

The parents of players on opposing teams became involved in a fistfight during a youth soccer game. The loser of the fight (who also was the aggressor) filed suit against his opponent and the soccer league because of his moderately severe injuries.  He alleged that the soccer league was negligent because it failed to control his behavior when they realized, or should have realized, that he was out of control. The soccer league, by the way, was for 5- and 6-year-old girls.

A child was playing in the outfield in a youth baseball league when he missed a fly ball that struck him in the face, causing facial fractures.  The parents sued the league and the coach, claiming that they knew or should have known that the claimant had sight problems and, therefore, should not have been allowed to play in the outfield.

And then there are the crazy claims that never make it to the court room, such as the woman who tried to file a claim because, as she was driving by a youth baseball field,  a baseball flew over the fence and through her back window hitting her bird cage  and releasing her prized pet.

Is a League Liable for Faulty Sports Equipment?

Concerns regarding older equipment

We received a phone call from a youth lacrosse club coach who was concerned about the use of 20-year-old helmets that haven’t been reconditioned or re-certified. He wanted to know if he could be liable in the event of a head injury to a player since it his responsibility to verify to the referee prior to the game that all equipment is in safe operating condition. He also wanted to know if his General Liability policy would cover any potential lawsuit.

 The short answer is that league administrators and coaches are responsible for the following aspects of equipment safety:
  • Long-range planning for the repair, refurbishment, and replacement of helmets. These decisions need to be made far in advance as they can take time to budget and complete.
  • Confirming helmets meet current National Operating Committee on Standards for Athletic Equipment (NOCSAE) requirements, as well as the requirements of the sports governing body.
  • Helmets should be inspected for defects in post season, pre season, weekly, and prior to any game or practice.
  • Maintaining repairing, and conditioning equipment on a regular basis.
  • Reconditioning to “like new” basis of safety equipment such as helmets should be performed by a reputable reconditioning business as opposed to an on staff trainer. NOCSAE may require re-certification.
  • Replacing helmets on a periodic basis per manufacturers recommendations.
  • Record keeping for documentation purposes on all of the above.Lacrosse equipment
There is no doubt that many of the above outlined principles may have been violated and the coach is justified in his concerns about liability.
 
General Liability policies generally don’t have an exclusion for lawsuits arising from of injuries due to failure to follow proper equipment safety protocol as outlined above. Therefore, coverage is likely to exist under most policies. However, a minority of policies may have a punitive damages exclusion. Willful disregard of known safety protocol could result in punitive damages. In addition, any litigation, even if covered by General Liability insurance, results in a black eye for the program and pretrial discovery and litigation is an emotional drain on league administrators and coaches.
 
For a more detailed resource on Equipment Safety, see our Risk Management Program for Sports Organizations

Is Your Team/League Adequately Insured?

Find out with our minimum requirement checklist

How do you know for sure that your team/league sports insurance policies provide the coverage you need to protect against devastating lawsuits? Many local insurance agents and even so called sports insurance specialists are guilty of offering inadequate coverages.

Minimum standards for sports insurance have been set by a sports insurance expert, risk manager, and attorney John Sadler of Sadler Sports and Recreation Insurance. These standards are outlined in two separate checkChecklistlists, one for private teams/leagues that purchase their own insurance one for teams/leagues with insurance provided by a municipal recreation department. Feel free to use our Sports Organization Insurance Checklist and Municipal Recreation Department Insurance Checklist.

Sports administrators no longer need to frustrate themselves trying to determine what coverage and limits are necessary. They can simply submit the checklist to their insurance agent for completion. The insurance agent then checks off whether each standard has been met and signs his or her name.

Once the completed checklist has been received, administrators then can decide what to do based on the results. If your team/league hasn’t met the the mandatory standards, your insurance agent should  remedy the problem or you should find a new insurance agent who can offer policies that meet the minimum standards.

Visit our team and league insurance page for more information on coverage or to get a quote. Or call us at (800) 622-7370!


Copyright 2017, Sadler & Company, Inc. All rights reserved.

 

Food Safety in Concessions (Infographic)

Are you cooking up trouble?

Ants, bees, flies, rain, or wind can be annoying when enjoying a hot dog and soda at the ballpark. However, all of those pale in comparison to food poisoning, another outdoor food risk!

Indoor and outdoor sports organizations face liability risks from food poisoning incidents resulting from improper food handling at concession stands. These incidents should be covered by General Liability insurance. However, preventing such risks is preferable. Here are some tips for reducing the risk.

Management and purchases

• Concession stands must adhere to all local food licensing and permit laws and regulations.

• All concession workers should receive training in proper food handling by management.

• Only purchase food from reputable, good-quality sources.

• Do not purchase or serve any food past the expiration date.

• Avoid serving food prepared at home, other than baked goods.

Food Safety

Want to display this Infographic on your own site? Just copy and paste the code below into your blog post or web page:

Food Handlers

• All concession workers must wash hands with soap and warm water after potential contamination events. These include but are not limited to using the restroom, sneezing or coughing,  touching counters and garbage cans, dumping garbage, touching cash register and money, and touching your face, mouth or hair

• Use of gloves and hand sanitizers offer hand additional protection, but are not a substitute for frequent hand washings.

• Food handlers be symptom-free of illness (coughing, sneezing or sniffling, fever, nausea, vomiting, diarrhea) or open wounds when handling food.

• Food handlers must use appropriate utensils, gloves, or deli paper when handling food.

Insects and Vermin

• Store all food off the floor.

• All food should be covered and spills/drips continually wiped down to discourage insects.

• Keep trash cans covered at all times?? with tight-fitting lids.

 Refrigeration

• Foods requiring refrigeration to be held at 40° F or lower until being served.

• Keep a thermometer in your refrigerator/freezer to ensure fridge is maintained a 40°F and freezer at 0°F.

• Perishable food should not sit out of refrigerator longer than two hours.

Sanitation

• Disposable utensils and paper products should be used to reduce cleaning and contamination.

• Do not wash or reuse disposable products.

• Sanitize and wipe down all food preparation surfaces and concession equipment frequently.

• Do not overfill garbage cans, and empty them frequently.

For more detailed food handling information, you can download our food risk management report.

Protecting your organization from liability claims

Did you know that liability protection is critical for all sports and recreation organizations? It only takes one injury-related lawsuit to financially ruin your organization. Having the right sports and recreations insurance protection offers you peace of mind.

Finding the right insurance coverage doesn’t have to be difficult. We at SADLER understand the specific needs and unique risks associated with your sports or recreation organization.

If you would like to learn more about liability prevention or are ready to get a customized insurance quote, you can apply online now or call us at 800-622-7370.

There are no obligations and most quotes are sent in just a few hours. With no application fees and the most competitive rates in the industry, what have you got to lose?

 Sources:
  • Stadium Foods Present Unique Food Safety Risks: Part 1 And Part II; April 19, 2010; Richard J. Arsenault.
  • Food Safety Hints for Non-Profit Organizations and Schools; Fort Wayne-Allen County Department Of Health; Ft. Wayne, Indiana.
  • A Quick Consumer Guide to Safe Food Handling; University Of Minnesota; Feb. 4, 2009; Parts Adapted from Your Safe Food Handbook, USDA, Feb. 2008.

Sport injuries off the field

The Independent Contractor or Subcontractor Limitation

Services such as concessions umpires, security, field maintenance and janitorial are typically outsourced by sport and recreation organizations as independent contractors or subcontractors.

The Independent Contractor or Subcontractor Limitation endorsement on a General Liability policy can have adverse consequences for sports and recreation organizations.

Don’t play around with independent contractors

The negligent actions of these independent contractors or subcontractors can result in the sports organization being shot gunned into a lawsuit.

The Independent Contractor or Subcontractor Limitation endorsement will preclude coverage unless the independent contractor or subcontractor maintains a General Liability policy at the time of injury, with limits equal to the sports organization while naming such sports organization as “Additional Insured.”

Protecting the organization

It is highly recommended that sports organizations require all independent contractors and subcontractors to provide evidence of General Liability insurance with limits of at least $1,000,000 combined single limits. Such policies should name the sports organization as “additional insured.”

However, General Liability coverage of the sports organization being contingent on the insurance requirement of the independent contractor or subcontractor is a risky proposition.  If the sports organization is diligent about administrative duties, an uninsured independent contractor or subcontractor could easily slip between the cracks.  In addition, a certificate of insurance is only an indication of coverage status as of the date of its issuance. Coverage could later be canceled due to nonpayment of premium with no absolute notification requirement to certificate holders.

For the reasons outlined above, it is not acceptable to allow the existence of the Independent Contractor and Subcontractor Limitation endorsement on the General Liability policy for a sports organization.

Source:  John Sadler

Assault and Battery Exclusion in Sports

Employees and volunteers vulnerable

 

Some sports General Liability policies have an endorsement entitled Assault and Battery Exclusion that modifies the terms of the original policy language.

 

The standard policy form (without the Assault And Battery Exclusion) contains an intentional injury exclusion that includes an exception for the use of reasonable force to protect persons or property.

 

The Assault and Battery Exclusion takes away coverage for any assault and battery incident committed by your employees, volunteers, or any other person.  In addition, coverage is excluded for failure to suppress or prevent an incident as well as for negligent hiring, supervision, or training.

 

Based on some of the claims filed against our team and league clients over the years, the Assault and Battery Exclusion would have had unacceptable coverage consequences had it been in existence.

 

We have seen several lawsuits alleging assault and battery resulting from a coach attempting to break up a fight.  In one incident, a coach broke up a fight by pulling one 8-year-old boy off of another.  The lawsuit alleging assault and battery claimed that the coach injured the boy that he pulled off the top of the other boy.

 

We have also seen a number of other lawsuits against leagues, volunteers, and administrators arising out of fights between coaches, umpires, and spectators.  In many cases, the coaches and umpires are actually the physical aggressors against spectators.In some of these cases, the plaintiff’s attorney ran a background check and found that the defendant had a criminal background involving a crime of physical violence.  As a result, the sports organization and its board were shot gunned into the lawsuit under the theory of negligent hiring.

 

The above common examples would likely trigger the Assault And Battery exclusion resulting in no insurance coverage and the possible taking of both assets of the sports organization as well as personal assets of the individual defendants to satisfy the judgment.

 

In my opinion, the Assault and Battery Exclusion should be removed from a sports or recreation General Liability policy.

 

Source:  John Sadler

Photo credit: Guiseppe Barranco/The Enterprise

National Parks Service Backs Down Again

Government agency drops whitewater insurance requirements

We reported in our prior blog posting, New National Parks Outfitters & Guides Requirements , that the U.S. National Parks Service increased the General Liability insurance limit requirements for rafting companies in Grand Teton National Park from $500,000 to $5 million. However, due to an outcry from industry participants, the National Parks Service later backed off this position and dropped the required limits to $2 million.

Now, a similar outcry from small outfitters, guides and insurance experts has caused the National Parks Service to suspend its plans to increase the aggregate liability insurance limit to $5 million for whitewater boating outfitters in Dinosaur National Monument. It also backed off the requirement to carry pollution coverage. In protest, Whitewater outfitters and guides claimed that the higher limits would raise premiums by 60 to 80% and that pollution coverage was not warranted.

Source: Park Service Backs Off Recreation Insurance Hikes in Colorado

Add-on Helmet Products

Should they be permitted in youth football leagues?

Many youth football teams and leagues are currently using or considering some new products on the market that will modify their existing football helmets with add-on enhancement devices. These include external soft covers such as The Guardian, Shockstrip, or ProCap, internal shock reducers and shock sensors to help to identify concussion candidates. The helmet manufacturers, primarily the big three – Riddell, Rawlings, and Schutt – either don’t recommend the use of these products or have concerns about their use for various reasons.

Many of my youth football insurance clients have asked for my advice on this matter from a risk management perspective. This is a complicated issue with many elements that need to be considered. I can offer my thoughts based on the current information at hand. Please note that this situation is fluid with new developments and statement releases by NOCSAE and governing bodies occurring frequently.

Do add-on devices actually work?

Before getting into the risk management implications, I have to state that I don’t know whether some of these add-on products provide effective concussion protection or not. Each side’s argument  is backed by its own logic and research. The helmet manufacturers state that they are constantly researching new ways to increase concussion protection and have already incorporated all presently proven materials and designs into their existing models. The helmet manufacturers are wary of liability concerns; they could easily be forced into bankruptcy by adverse jury verdicts or not being able to afford liability premiums. As a result, they must follow all protocols and standards closely as regards the law of product liability to preserve their defenses. This requires them to be conservative and risk-adverse about new and unproven ideas and products.

On the other hand, the add-on product manufacturers  are primarily start-ups that are trying to gain market share with innovative new ideas. They are being fueled by the current concussion hysteria  in football and the rush to find a solution to “save the game.” The add-on device manufacturers allege that the big helmet manufacturers are trying to keep them from gaining a foothold by frightening the public as to the safety of their devices and by unduly influencing NOCSAE, The NFL, and other industry associations. See our recent article, “Helmets Preventing Concussions Seen Quashed By NFL.”

The add-on manufacturers and many safety proponents are concerned that the liability roadblocks thrown up by the helmet manufacturers and NOCSAE are hurting the development of player safety. They point out that, from a historical perspective, the independent research and creativity of smaller companies has benefited society with innovative solutions to problems that were thought to be insurmountable, and as a result they should not be stifled. Furthermore, they state that it is the players and parents who should make the decisions about the use of add-on products.

Regardless of which side is correct in this debate (only time and additional research will tell), the following legal and risk management issues are of  importance in a youth football league’s decision about the use of these add-on devices:

  • Voiding the manufacturer’s warranty
  • Voiding NOCSAE certification standard
  • Failure to follow rules or standards of governing or sanctioning body
  • The law of product liability.

Voiding the manufacturer’s warranty

The typical youth football helmet manufacturer’s warranty asserts that the helmet shell and component parts will be free of defects in materials and workmanship for a period ranging from one to three years. Some manufacturers allow the warranty to be extended if the helmet is reconditioned and re-certified to NOCSAE standards every 1 to 2 years. The warranties are subject to a list of voiding factors, such as failure to recondition/ recertify, inserting used replacement liners, use of a face guard or internal or external device not approved by the manufacturer, use of chemicals which may have damaged the shell, excessive drilling, abuse of helmet or unintended use, and removal of the warranty label. Defective products  under the warranty can be returned to the manufacturer for replacement. The warranties disclaim all liability for consequential damage arising from use of the products.

The helmet manufacturers make a big deal out of voiding their warranty as a reason not to use a third party enhancement device.

On the other hand, the add-on manufacturers state that this is not a big deal since the main purpose of the warranty is to replace a broken shell and this rarely happens. Furthermore, some of the add-on product manufacturers offer their own helmet warranty in the event the helmet manufacturer doesn’t honor their own warranty. Another issue is whether the use of an add-on actually voids the manufacturer’s warranty. It depends on the exact wording in the warranty and the nature of the add-on device. It’s almost inconceivable that some add-ons product could damage the helmet shell. One large helmet manufacturer states that they will decide such warranty matters on a case-by-case basis.

It is my opinion that voiding the manufacturer’s warranty is not a big deal for the following reasons:

  1. The financial consequences are not severe because the warranty merely guarantees replacement of the defective helmet part and has nothing to do with liability arising from player injury.
  2. Many add-on product manufacturers provide their own helmet warranty.

Voiding NOCSAE Certification

NOCSAE is a non-profit corporation  formed in 1969 to develop a performance standard for football helmets. The NOCSAE board of directors consists of representatives from associations in the fields of medicine, athletic training, athletic equipment, sporting goods manufacturers, and high schools/colleges. Evidently, the majority of NOCSAE’s operating income comes from sporting goods manufacturers. NOCSAE is conscious of limiting the liability of the manufacturers and promoting the interests of player safety. Their standards are adopted by governing bodies such as NCAA and NFHS.

The NOCSAE football helmet test involves mounting a football helmet (with face mask removed) on a dummy head and dropping it 16 times onto a firm rubber pad from varying heights, contact points, and in various temperatures. Shock measurements are taken to verify that the helmet meets a severity index for concussion tolerance. If it does, the helmet meets the NOCSAE standard. Testing is conducted by the manufacturers prior to the sale of the helmet and afterward by licensed reconditioners. Newly manufactured helmets that pass the test must bear the seal “Meets NOCSAE standards” which must be permanently branded on the outside rear of the helmet. Recertified helmets must bear the NOCSAE seal inside the helmet that reads “This helmet has been RECERTIFIED according to the procedures established to meet the NOCSAE STANDARD.”  It is important to understand that the NOCSAE standard is not a warranty, but simply means that a particular helmet met the standard requirements when it was manufactured or reconditioned.

NOCSAE does not require a helmet to be recertified on a regular basis but recommends that teams/leagues adopt a program of inspection and reconditioning based on a number of factors such as age of players, age of equipment, and usage. NOCSAE does not mandate reconditioning or recertification, but manufacturers may restrict their warranty based on these factors. Any change or modification to the shell or liner from the original manufacturing specifications could alter the performance of the helmet and its performance under the NOCSAE test. However, replacement parts are acceptable if they meet or exceed original manufacturer specifications. The NOCSAE helmet standard does not include the testing of helmets with face masks because they are tested separately. NOCSAE suggests that the original manufacturer be contacted before any materials are applied such as, but not limited to, thinners, paint, wax, solvents, vinyl tape designs, and cleaning agents.

Below is an excerpt from  NOCSAE’S July 16, Press Release:

“The addition of after-market items by anyone that changes or alters the protective system by adding or deleting protective padding to the inside or outside of the helmet, or which changes or alters the geometry of the shell or adds mass to the helmet, whether temporary or permanent, voids the certification of compliance with the NOCSAE standard.”

This ruling likely prompted the Colorado High School Activities Association (CHSAA) to prohibit the use of add-on products during games.

You can also read NOCSAE’s August 7, 2013 Clarification Press Release, which details the helmet manufacturers’ decision on NOCSAE standards being voided.

Pressure from third party manufacturers and safety proponents likely was behind NOCSAE modifying and relaxing it’s original July 16 statement. This new statement  allows the helmet manufacturer to unofficially test the results of its helmet with the add-on device. This statement also makes exceptions for items that are not attached or incorporated (see text below).

Here are some highlights of the August 7, 2013 NOCSAE statement:

The addition of an item(s) to a helmet previously certified without those item(s) creates a new untested model. Whether the add-on product changes the performance or not, the helmet model with the add-on product is no longer “identical in every aspect” to the one originally certified by the manufacturer.

When this happens, the manufacturer which made the original certification has the right, under the NOCSAE standards, to declare its certification void. It also can decide to engage in additional certification testing of the new model and certify the new model with the add-on product, but it is not required to do so.

Companies which make add-on products for football helmets have the right to make their own certification of compliance with the NOCSAE standards on a helmet model, but when that is done, the certification and responsibility for the helmet/third-party product combination would become theirs, (not the helmet manufacturer). That certification would be subject to the same obligations applicable to the original helmet manufacturer regarding certification testing, quality control and quality assurance and licensure with NOCSAE.

Products such as skull caps, headbands, mouth guards, ear inserts or other items that are not attached or incorporated in some way into the helmet are not the types of products that create a new model as defined in the NOCSAE standards and are not items which change the model definition.” (Note: This is not the official position of NOCSAE or any helmet manufacturer but a leading concussion blogger speculates that the exception applies to MC10/Reebok Checklight and Guardian Cap.)

See the April 2013 statement from National Athletic Equipment Reconditioners Association (NAERA) regarding the removal of aftermarket enhancements and related complications during the recertification process:

Based on the latest NOCSAE clarification, the helmet manufacturer has the right to void the original NOCSAE certification for a particular add on product. This being the case, there is legal risk in allowing the use of an add on device on a helmet in a youth football program if an injury and lawsuit results where the helmet manufacturer takes the position that it voided the NOCSAE certification due to the add on  product.

Violation of governing/sanctioning body mandates

Do the use of these add on devices violate the rules of the various governing / sanctioning bodies such as NFHS, American Youth Football, Pop Warner, USA Football?

Most youth football leagues follow the rules of their state version of the NFHS rules and regulations.

The NFHS has not disallowed the use of certain external enhancement devices per their Rules Review Committee Statement, August 2012.  Here is the critical element of their opinion: “In the absence of a clear answer to the “net impact on protection” issue, the decision as to whether to use or not use helmet attachments remains, at the high school level and all other levels, within the discretion of the various teams, coaches, athletes and parents.”

However, as a result of the latest August 7, 2013 NOCSAE clarification, the NFHS may be pressured to reconsider its position and to disallow an add on product should a helmet manufacturer declare that its use voids the original helmet certification.

The NFHS rules can be amended by the various state member associations. For example, the Colorado High School Activities Association (CHSAA) recently prohibited the use of these products during games but not during practice.

It is always safest from a liability perspective to follow the rules of the governing / sanctioning body. Failure to do so will certainly be used against a team or league in a court of law and can be a strong indication of negligence.

Use of add-on products trigger legal defenses for helmet manufacturers

In the event of a serious head or neck injury, the plaintiff’s attorney will likely sue the helmet manufacturer/ distributor; add on product manufacturer / distributor; team / league; individual administrators; coaches, managers, trainers, and referees; and possibly the sanctioning body organization. Each will likely point the finger at the other defendants and will plead all the legal defenses that are available such as the absence of negligence, the other defendants were negligent, assumption of risk, waiver / release, etc.

What does product liability case law say about the legal defenses that are available to helmet manufacturers that may be triggered by the unauthorized use of add on products? Here is a list of such defenses:

  • Improper Use Defense — Helmet was not used in manner intended by helmet manufacturer when plaintiff (injured party) was injured.
  • Product Labeling And Directions Defense – The plaintiff or other responsible parties (parent, team, league, etc.) ignored the written warnings, directions, and risks that were communicated in helmet manufacturer’s materials.
  • Altered Product Defense – The helmet manufacturer is not responsible for plaintiff’s damages if the plaintiff or other party altered the product once it left the helmet manufacturer’s control and furthermore the alterations caused the plaintiff’s injury rather than the original unaltered helmet.

Should add-on products be used due to concussion concerns?

Based on the analysis above, from a legal and risk management perspective, it is safest to follow the recommendations of the helmet manufacturers as regards the use of add on products. If you follow their recommendations, they will be the deepest pocket in the event of a catastrophic head or neck injury in your program. The major helmet manufacturers likely carry a combined General Liability / Excess Liability insurance limit in the range of $10M to $25M. On the other hand, the add on product manufacturers likely carry much lower limits of liability insurance due to their restricted start up budgets.

However, if your sports program is going provide or allow the use of add ons that are declared by the original helmet manufacturer to void the NOCSAE certification, despite the liability risks of doing so, it is recommended that your program carry its own General Liability/Excess Liability policy with combined each occurrence limits of at least $5,000,000 such as the insurance program provided by American Youth Football. In addition, the requirement that players and parents sign an appropriately worded waiver/release agreement that specifically warns of the dangers of violating the manufacturer’s instructions as regards add on products should be considered.  

Additional research may vindicate many of the add on product manufacturers to the point where public demand will force the major helmet manufacturers to accept their products if they are proven to promote safety.

The Cost of a Sex Abuse/Molestation Incident

The reason behind carrier demands for risk management controls

Youth sports organizations should consider carrying a sufficient sex abuse molestation limit to cover these types of claims, which can evidently reach $1.9 million per claimant and higher – as in the Sandusky case.

Penn State settled with its first claimant for an undisclosed amount but has set aside $60 million to bjerry_sanduskye dispersed among 31 claimants for an average settlement of $1.9 million per claimant. Not including this amount set aside for settlements, Penn State has already spent $50 million on attorney fees, public relations, and other mitigation expenses.

No wonder the insurance carriers that insure youth sports organizations for sex abuse/molestation demand that risk management controls be put in place prior to offering coverage. Not only can the damages per claimant be very high, butdozens of claimants can be victimized by a single predator.

The controls required typically involve the running of criminal background checks on all staff with access to youth, written policies and procedures to make an incident less likely to occur, and having a written incident response plan including a requirement to notify law enforcement.

Sadler Sports and Recreation Insurance provides its clients with a full array of free sex abuse/molestation risk management tools, including training videos and word document templates of written programs that can be adopted by a program. We offer versions ranging from one page to seven pages but all include the essential risk management controls.

Source: First Penn State Abuse Claim Settled, Lawyer Says; August 17, 2013. Associated Press