This article by Doyice Cotten illlustrates that the language used is crucial to the enforcement of indemnification agreements.
Two recent equine cases illustrate the importance of the indemnification language used in liability waivers. In Polechek v. Schina (2010 N.J. Super. Unpub. LEXIS 674), the owner of a horse that was running loose around the track in the wrong direction attempted to keep her horse from escaping from the track. She moved into a gap in the rail of the track and shouted “Whoa.” The horse ran over her causing substantial injury. She sued the owner of the track alleging negligent maintenance of the track rails. The stables subsequently moved for summary judgment seeking dismissal of the complaint and indemnification from plaintiff for counsel fees and costs.
The plaintiff had signed a waiver that released the stables from all liability. Relevant language included:
Release and Hold Harmless Agreement
2. I understand and warrant that this Release and [H]old Harmless Agreement, is being voluntarily and intentionally signed and agreed to, and that in signing this Release and Hold Harmless Agreement I know and understand that this Release and Hold Harmless Agreement may further limit the liability of DMS FARM to include any activity, whatsoever, involving an equine, including death, personal injury and/or damage to property.
3. I further voluntarily agree and warrant to Release and Hold Harmless DMS FARM from any liability whatsoever, including . . . .
The court, however, treated the language as a release and did not recognize defendant’s indemnification claim.
In a 2010 Connecticut case (Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 2010 Conn. App. LEXIS 78), a horse owner left her mare at a veterinary clinic for artificial insemination. After insemination, the horse was turned out into the pasture with another mare and was subsequently kicked in the leg causing serious injury. The horse owner sued alleging she had given specific instructions that the horse was not to be turned out. The clinic filed a counterclaim based on the indemnification clause in the waiver. The owner had signed a waiver and indemnification agreement when the horse was brought to the clinic. The court ruled that the veterinarian was not negligent and judgment was rendered in favor of the defendant on the plaintiff’s complaint and on the defendant’s counterclaim in the amount of $15,000.
The indemnification language was:
Candlewood Equine and its employees, representatives, and contractors will endeavor to properly supervise and directly provide proper, professional care for your horse. As the horse owner, you understand and agree that there is inherent risk involved with the handling and management of horses, and you hereby agree to release and hold harmless Candlewood Equine and its employees, representatives and contractors from and against any liabilities, claims and damages associated with the horse, its medical or professional care, boarding, or conduct while at Candlewood Equine, unless the same results from Candlewood Equine’s gross negligence or willful misconduct.
This clause is much more specific as to its intent than the language in the Polechek case; specifically, the “release and hold harmless … against any liabilities, claims and damages associated with the horse, its medical or professional care, boarding, or conduct….” The court reasoned “both the plaintiff and the defendant are commercial entities similar in experience and sophistication. The plaintiff is a corporation in business since 1967, whose president, Dow-Burt, is a college graduate. The plaintiff runs a horse farm that boards and trains horses, provides riding lessons and hosts regular horse shows. The defendant is a corporation that boards horses and provides veterinary and horse breeding services.” The court felt the “hold harmless provision was an agreement to allocate a predictable risk between two commercial entities of equal bargaining power, and the provision was not an attempt to limit liability for personal injuries.
NOTE: Ironically, the plaintiff, Dow-Westbrook, Inc., regularly requires its own riding and horse show clients to sign documents containing hold harmless clauses very similar to those of the defendant. In fact, the language in Dow-Westbrook, Inc.’s was even more specific and, thereby, stronger than that of the defendant:
“6. HOLD HARMLESS: Owner agrees to hold WHC harmless from . . . any claim resulting from personal or property damage or injury caused by said horse to anyone and agrees to pay any legal fees and/or expenses incurred by WHC in defense of such claims. . . . [W]ithin the [b]oarding [c]ontract the undersigned hereby acknowledges that the Westbrook Hunt Club is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Section 52-577p of the Connecticut General Statutes . . . .”
Note that the language in this clause clearly specifies what is encompassed by the term “hold harmless.” Here, it plainly states that the signer releases the WHC from any claims and “agrees to pay any legal fees and/or expenses incurred by WHC in defense of such claims.” Contrast this language with that in the Polechek case where there is no language supporting the fact that the “hold harmless agreement” is anything more than a release.
In Waivers & Releases of Liability, Cotten and Cotten refer to a West Virginia case in which the court stated that “The word ‘indemnify’ is not a cantrip that magically transforms the plain language of the contract.” The same might be said for the words “hold harmless.” The language must reflect the mutual intent of the parties to indemnify for indemnitee negligence. A good example was provided in Rice v. American Skiing Company (2000 Me. Super. LEXIS 90), where the indemnity language was quite specific and unambiguous.
I hereby indemnify the ski areas named above, its owners, affiliates, employees and agents for all awards, legal expenses and settlements arising out of the child’s participation in this clinic and the use of the ski area premises.
Check your waiver. Is the indemnity language specific? If not, you might want to revise it. For more information and more tips regarding indemnity language, see Cotten and Cotten, Waivers & Releases of Liability, 7th edition (see elsewhere on Buy Now for purchase details.)