just wondering about liability release

[denverd0n]

Originally Posted by marlin driver

Ditto. If you have your friends sign a waiver to ride in your car...

The difference is that a court is going to assume that everyone clearly understands the inherent dangers in riding in a car. That same court would probably assume that most people do NOT know all the possible dangers in going out on a boat. Not that I am suggesting that you need to have friends sign a waiver. I don't see a value in that. But I think the comparison to riding in a car is specious.

[taxwizz]

Originally Posted by Cadence

I believe sometimes insurance companies just pay off because it is cheaper than going through litigation. The scumbag attorney plays on that. Write a letter and get a third of the take. Write enough letters and your wealthy. I forgot the adverting, in an accident call, Gorge or Bill at some unique phone no. 333 3333.

The US needs tort reform.

In Canada, the losing side generally pays the legal fees of the winning side, as well as their own. This discourages frivolous lawsuits.

If it is not the same in the US, it should be.

[valhalla360]

Still haven't seen an answer to what a "guest" is?
- A non-paying friend, your normal retail insurance should cover you and it would be rude to make them sign a waiver.
- A paying guest, you better have commercial insurance for the business you are in.
- Someone you just met but who is not paying...technically it falls into the same category as a friend but if it looks fishy, they may ask questions. A waiver actually creates an odd situation. If you make them sign a waiver, it looks a lot like a commercial operation, especially if you have no prior history with the person. That could cause the insurance company or court to decide you are hiding the commercial aspects and rule against you until you prove otherwise.

A waiver may or may not help. A lot of it is a bluff. If you get people to think they signed away the right to sue, many won't. But if the guest is clearly in conflict with the waiver terms and you haven't been negligent, it can hold up but as others have said, it's a state by state thing. If you've been in any way negligent in relation to an accident, it won't do much.

[valhalla360]

Originally Posted by taxwizz

In Canada, the losing side generally pays the legal fees of the winning side, as well as their own. This discourages frivolous lawsuits.

If it is not the same in the US, it should be.

For frivolous lawsuits, it's a great option.

The problem is it discourages legitimate but not clear cut win type cases. If you have a 60% chance of winning (certainly not frivolous) and between all the lawyers and court costs it's likely to run $500k, is that a gamble you want to take when there is a 40% chance, you will be out $500k?

A better system would be if the court makes a determination at the end of each trial if the case was frivolous. If yes, the professionals (aka: lawyers) on the losing side pay up. If the client wants to pursue a frivolous case, the lawyer must notify them and have them sign off before the case is filed and then it would be on the client if they lose.

Of course the problem is the judges are all lawyers and no one has any interest in actually stopping frivolous cases where everyone makes money.

[Mike OReilly]

My understanding of Canadian civil law cases is that the awarding of costs to the winner (loser pays all costs) is done on a case by case situation. It's not automatic, so the judge does have to make the determination. Civil cases can also be won, in whole or in part. A judge can make partial awards to recognize the merits of both sides.

So while I think it is common for the losing side to be ordered to pay the winning side's costs, it's not automatic. I do wonder how often it does happen. I assume that data is available...

[roland stockham]

I think the real problem is both the cost and time it takes to go to court, if the court is not able to decide an issue in a reasonable time and at a reasonable cost then is it really justice or just a gravy train available only to rich individuals, business and government but not the 'ordinary citizen'.

[taxwizz]

Originally Posted by valhalla360

Of course the problem is the judges are all lawyers and no one has any interest in actually stopping frivolous cases where everyone makes money.

That, I definitely agree with.

But if you are a defendant and are successful, why should you have to sell your house to pay the legal fees? This is the "Deep Pockets Assault". The one with the most money wins.

That is not justice, it is injustice.

But then remember....Those with the money set up the system.

[Cadence]

Originally Posted by taxwizz

In Canada, the losing side generally pays the legal fees of the winning side, as well as their own. This discourages frivolous lawsuits.

If it is not the same in the US, it should be.

It's not and should be. It would put a stop to these stupid law suits that only serve the scumbag lawyers and cost the tax payer by overloading the courts and those paying insurance premiums. I think Canadians are smarter the us in the US at times. Wish the weather was better. Then again the lawyer doesn't have to pay the costs of a failed suit.

[valhalla360]

Originally Posted by taxwizz

But if you are a defendant and are successful, why should you have to sell your house to pay the legal fees? This is the "Deep Pockets Assault". The one with the most money wins.

There is no perfect system.

In my example, it's the exact opposite but same little guy being cheated out of justice. You have a 60% chance of winning and thus a very viable case but a 40% chance of a $500k loss would devastate you financially. On the other side, the deep pockets company may happily take a 60% chance of a $500k loss to scare off multiple suits. A lot of people will shy away from taking the case to court even though they will probably win.

In a pure loser pays system, companies with already on staff lawyers can rack up big costs to scare off legitimate cases. Why should the little guy be punished for that?

[marlin driver]

Originally Posted by denverd0n

The difference is that a court is going to assume that everyone clearly understands the inherent dangers in riding in a car. That same court would probably assume that most people do NOT know all the possible dangers in going out on a boat. Not that I am suggesting that you need to have friends sign a waiver. I don't see a value in that. But I think the comparison to riding in a car is specious.

If you are thinking of moonlighting as a lawyer, I recommend you not quit your day job.

[taxwizz]

Originally Posted by valhalla360

There is no perfect system.

In my example, it's the exact opposite but same little guy being cheated out of justice. You have a 60% chance of winning and thus a very viable case but a 40% chance of a $500k loss would devastate you financially. On the other side, the deep pockets company may happily take a 60% chance of a $500k loss to scare off multiple suits. A lot of people will shy away from taking the case to court even though they will probably win.

In a pure loser pays system, companies with already on staff lawyers can rack up big costs to scare off legitimate cases. Why should the little guy be punished for that?

It is a tough solution.

Maybe we need to separate defendants into categories. Wealthy corporations, and not wealthy individuals who would not be assessed plaintiff's legal fees on losing. Contingency fees would still be available to plaintiffs.

There MUST be a solution that is as fair as possible to all, but still does not permit bullying.

[valhalla360]

Originally Posted by taxwizz

It is a tough solution.

Maybe we need to separate defendants into categories. Wealthy corporations, and not wealthy individuals who would not be assessed plaintiff's legal fees on losing. Contingency fees would still be available to plaintiffs.

There MUST be a solution that is as fair as possible to all, but still does not permit bullying.

For all the bad lawyer jokes (and bad lawyers), if there was a better system, we likely would already be using it.

If you make big companies pay the loser fee but not the other way around, it just encourages scammers without a lot of money to file frivolous cases.

Big companies get unfair judgments all the time. Do you really think McDonalds should have gotten sued for an old lady dumping her coffee in her lap? The shock that they actually served hot coffee...hot.

Google strange warning labels to see the weird things you get warned about...because someone sued a big evil company over it.

[Cadence]

I've, my insurance carriers, have been sued twice. I was never consulted. It's cheaper to just bite the bullet, I guess, than take it to court. Make it three, the workmen's comp. went to arbitration. The insurance co. Attorney was a kid still wet behind the ears.

[BandB]

Waivers and releases may be meaningless or may hold legally. It's all a matter of what is being waived and the circumstances. If you're running a dive charter, you get the guests to sign that they're experienced and they know the risks and you're not delivering anything but the trip to the spots.

You can't waive rights against professional negligence or malpractice. A captain's negligence can't be waived or protected against. You can put the boat in a corporation and he's still personally liable.

We have only one item we have guests sign for. Call it our boating Good Samaritan Waiver. For long cruising they give us their medical history and information. We're trained as medical persons in charge. However, we're not doctors. We will, if possible, get ER doctors on the phone to consult with. But they're basically signing that they know that and they want us to take any steps necessary in our minds. Good Samaritan Laws are what allow you to stop and help at an auto accident and not be sued for it.

When it comes to injuries on your boat, in your home, in your car, on any property you own, you have liability. Now, renters sign that you're not liable for their things and that they have rental insurance and also that their rental insurance will indemnify you if they cause damage. Still, if you know you have faulty wiring and it causes a fire, you will be held liable.

Some got off on the topic of health insurance. In the US, health insurance won't cover things other insurance is responsible for, like injuries on the job (worker's compensation) or an auto accident. Their responsibility, if any, is secondary. You go to ER after falling at a friend's house and breaking your arm and file health insurance. They will immediately contact you and want to know if you filed with your friend's insurer. If you say you haven't, they won't cover. If you say you have, they may pay and then make you repay them after the other insurer pays you.

In charters, the agreement has waivers. Some are sustainable. You waive the right to recover in the event of weather preventing going where intended or several other things. Cruise ships are the same. If it leaves port, you're on the hook. That's why they leave sometimes in questionable weather. They know they can't get you to the promised destination but they'll get you away from port and somewhere.

A waiver not to sue when getting on someone's boat would be totally useless and insulting to most.

[BandB]

Originally Posted by Cadence

I've, my insurance carriers, have been sued twice. I was never consulted. It's cheaper to just bite the bullet, I guess, than take it to court. Make it three, the workmen's comp. went to arbitration. The insurance co. Attorney was a kid still wet behind the ears.

Those are the most annoying. It's like some kind of fender bender that you know 100% was the other guys fault so reported to both insurers and you hear nothing more. Find out later your insurer paid.

Fortunately, I've never been sued, never sued, and not had either done to my insurer. However, I've never been at fault in an accident.

In business I wasn't sued, but we had health insurance situations and worker's compensation regularly. Only had two worker's comp cases to go to court and in both the plaintiff lost. Our policy was to always more than fulfill our responsibility.

The two who sued were crazy. Both were continued pain cases. One claimed his knee hurt but wouldn't go to pain management. We got videos of him mowing his lawn and playing football with his son and other kids. Sent those to his attorney. He then called to let us know he would be back to work on Monday. The other claimed continued back pain made him unable to work but also refused pain management. Well, turns out he'd purchased a bar and was in there working and running it many hours a week. Those aren't the only two times we investigated. We thought one was faking in a company we bought, but the investigator came back and told us he was really limited in what he did. We paid immediately. We even apologized for the company he worked for, which we had just acquired, delaying him so long.