Importance of Listing all Protected Parties in Your Waiver

By Doyice Cotten

Bradford Jones and his son, Forbes, rented jet skis from The Barge, LLC, owned by David Hubert. As they began riding, Bradford was injured when he turned suddenly and stopped in front of the inexperienced boy’s jet ski.  They collided, Jones was injured, and they subsequently sued The Barge, LLC, and Hubert.

Hubert had bought the business in 2006 and became the sole owner when he bought out his partner and renamed the business The Barge Watercraft Rentals.

The waiver signed by Jones explained the inherent risks of jet skiing in great detail; critical language included:

(3) RELEASE. I hereby release The Barge, LLC, Yamaha Motor Corp., BRP USA, Inc., City of Avalon, its principals, directors, officers, agents, employers, and volunteers, their insurers and each and every land owner, municipality and/or government agency upon whose property an activity is conducted (`owner’) and their insurers, if and (Collectively `Releases’) FROM ANY AND ALL LIABILITY OF ANY NATURE FOR ANY AND ALL INJURY OR DAMAGE (INCLUDING DEATH) TO ME OR MY MINOR CHILDREN AND OTHER PERSONS as a result of my participation in the activity.

The trial court granted summary judgment to the defendant Hubert. This appeal followed.

California law holds that “A written release may exculpate a tortfeasor from future negligence or misconduct. Further, to be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties’. Waiver and release forms are strictly construed against the defendant.” The court stated that it is undisputed that the waiver released the liability of The Barge, LLC; such language could be read to extend to its agents. The court went on to say

“. . . it was incumbent on Hubert to set forth in his separate statement of undisputed facts statements explaining his relationship with the released party and other defendant, The Barge, LLC, and why that relationship would have extended the terms of the Release to him. This could have been done, for example, by statements explaining that The Barge, LLC, was not a separate legal entity, it was actually a sole proprietorship owned by Hubert in July 2012, or that Hubert did business as The Barge, LLC, in July 2012 when the accident occurred.”

The court indicated that Hubert failed to address his relationship with the sued and released entity, The Barge, LLC, so the burden of remained on Hubert; the court denied summary judgment.

Among other reasons, the court explained that “an LLC, or limited liability company, is a distinct legal entity and its members have limited liability for the entity’s debts and obligations.” Jones sued The Barge, LLC, and the waiver released The Barge, LLC; Jones did not sue or release The Barge, LLC, doing business as David Hubert or David Hubert doing business as The Barge, LLC. Subsequently, he has not shown that he is legally indistinguishable from The Barge, LLC.

There were other issues that may be examined in more detail in Jones v. The Barge, LLC, but the main point here is that it is important to clearly indicate the parties protected by the waiver.

Worth Noting . . .

There was a dissenting judge. In his dissent, Judge Dhanidina stated

However, I respectfully disagree with the majority’s conclusion that the trial court improperly granted defendant David Hubert’s motion for summary adjudication. In my view, the releases signed by Bradford David Jones (Bradford) and Forbes Bradford Jones (Forbes), bar plaintiffs’ ordinary negligence claims, and Hubert demonstrated the absence of a triable issue of material fact as to gross negligence. Accordingly, I would affirm the trial court’s order granting summary adjudication.

The judge presented an understandable and interesting dissent. But of course, to no avail. In this case, the majority of the court considered the distinction between the LLC and Hubert to be significant.  So. again, it must be stressed that naming the parties protected by the waiver, either by name or by function, is vital.

Photo Credit: Thanks to Greg Walters via Flickr.