Suppose you own a fishing charter business and you want to save money on insurance. Can your clients waive the right to make a claim against you, thus avoiding the need for insurance?
Maine law allows people to sign away their right to sue for personal injury. There are limits: A common carrier, for example a ferry or bus service, cannot do so, although it can certainly limit and otherwise affect the customer’s right to sue: take a careful look at the back of your bus or ferry ticket. And a business cannot limit the right to sue for an intentional act, such as assault.
However, in many cases a correctly worded waiver of liability will limit the a customer’s right to sue the business. It can even provide that, if the customer sues despite having waived the right to claim, the business can recover its attorney’s fees incurred defending the claim. If you have a business which deals with members of the public in situations where personal injury is a real possibility, consult your attorney as to whether such a waiver of liability is a good idea.
To be effective, a waiver of liability must specifically waive liability for “negligence”, using that word. There are other specific considerations as well.
Suppose you take folks, including children, out on the bay for fishing and sightseeing. A minor cannot waive liability for him or herself. However, the parent can agree to indemnify the business if the child makes a claim. In other words, with a correct waiver, if the child sues, the parent is on the hook for any money the business may have to pay.
Waivers of liability must be kept for seven years from the date of any potential claim, for example from the date of the charter. However, a parent’s waiver on behalf of the child must be kept until seven years after the child turns eighteen, a long time indeed.
Many businesses find it useful to have these waivers executed on a computer tablet, which is both convenient and, properly backed up, ensures that the document will be available when needed.
If you require waivers of liability, do you still need insurance? I certainly think so. Insurance is the first line of defense when a business is sued. The waiver may and probably will help, and your insurance company will thank you for it, but it will require a lawyer to make the argument that the waiver defeats the claim, and you don’t want to have to pay that lawyer. In any case, it is fairly likely that, waiver or not, some money will be paid to make the claim go away (less money if there’s a waiver), and you don’t want to write that check.
Call me if you think a waiver could be useful, at (207) 838-0690. And stay out of trouble.