13, 7:52 am, David Harmon <sou...@netcom.com> wrote:
> On Thu, 12 Apr 2007 08:22:30 -0400 in misc.legal.moderated,
> d...@practical.org wrote,
>
> > That if some person other than you or whoever the contract
> >refers to as any of your "employees or representatives" makes any
> >claim against any of the indemnitees to the effect that you or whoever
> >are any of the persons the contract refers as any of your "employees
> >or representatives" for the purposes of the event caused that other
> >person damage during or in any other way connected with the event in a
> >manner that subjects any of the indemnitees to any cost/expense to
> >respond, you shall reimburse each affected indemnitee for all that
> >cost expense.
>
> That's the part I am most worried about.
While "d"'s comment is basically accurate, I still think OP is worrying about the wrong thing. It sounds like OP thinks he, and he alone, will have to use his deep pockets to fund the entire organization when they get sued by countless random people who get injured at the event. That's not what it means, and is also not what "d" paraphrased it to mean either.
There are 3 very unlikely situations where OP could wind up actually having to pay something to somebody out of pocket:
1) If somebody other than OP, but who is authorized by law or contract to stand in OP's shoes, sues one of the protected entities ON BEHALF OF OP despite OP's having signed an agreement not to do so, then OP will have to reimburse anyone who is harmed by their having to pay extra costs, etc. to smack his claim back down again and get the baseless lawsuit dismissed OR, in the unlikely event the suit succeeds despite the agreement being upheld, to pay (back) the damages that were awarded to OP's representatives in the suit. Thus, if frex OP dies, and his widow (she's not the one who signed it, so is she in breach by suing? Yes, because OP's signature is legally binding on his successors, assigns and representatives) sues, and wins, then OP's estate has to indemnify the person or organization that OP's widow sued, by paying back the money they just won. Yes, that means it's a wash. And in that case, the payment of extra costs is fair because the protected parties would not have incurred those costs except for the fact of OP's representatives having breached, on his behalf, his agreement not to sue. Note, in the event such a suit IS successful, it will generally have to be so "over the dead body" of the indemnity agreement (i.e. a court will have ruled, as a preliminary matter, that the paper OP signed isn't worth the pulp it's printed on) so that OP's estate in fact _won't_ have to pay anything back to the person his widow sued, IF they win. But the presence of such a clause has an intended in terrorem effect to prevent such suits from being filed in the first place. It obviously did a pretty good job of terrorizing OP.
2) If someone ELSE whom OP IS RESPONSIBLE FOR INJURING sues one of the protected entities, then OP, not the protected entity, is theoretically the one who will have to pay for the defense and/or indemnify the damages awarded to the victim in his suit vs. the protected entity. That is also fair, since it is OP who caused the damage, and he doesn't get out of his primary liability for damage HE causes to others just because he signed an agreement that he would not sue _them_. Of course, if the injured person is a fellow participant, that participant is also limited in _his_ ability to sue OP, or any other protected entity, by reason of the hold harmless agreement that the injured participant signed. So, the only time this scenario (2) is likely to happen is if someone OTHER THAN a "participant", i.e. a "civilian" gets injured AND that injury is OP's own fault. Note well here that OP WOULD BE LIABLE IN TORT TO THAT INJURED PERSON WHETHER OR NOT he had signed any indemnity agreement, so the agreement DOES NOT CHANGE the duties the law imposes on persons in OP's position. As a practical matter, if that happens the sponsoring entity would take charge and hire lawyers, etc. to protect OP (as one of the protected "participants"), not the other way around.
3) If one of OP's employees, whom OP assigned to work at the event, gets injured, then OP agrees that OP, not the event organizer, is the one who will be financially responsible to pay for the employee's injury. Again, this is fair since it is a responsibility OP would have by law to his own employees whether or not he signed any indemnity agreement; and the practical effect of it is, if one of OP's employees sues the event organizer, that group will file a "third party" claim to bring OP into the suit based on OP's contractual duty to indemnify the organizer against OP's employee's claim. This latter eventuality is of course something OP will not need to worry about if he is a "participant" as a solo individual and not as a business with involved employees. But the agreement, which _every_ participant signs, has to be broad enough to cover participant exhibitors, etc. who ARE businesses with employees.
So, rather than going thru all the theoretical rigmarole, the practical upshot is this: if the court decides the agreement is valid, all it means is, OP can't sue and neither can anyone else acting on his behalf. Or, if the court voids the agreement as overreaching or unconscionable or because there was gross negligence involved or whatever, then people CAN sue the organizers and participants, including OP, but they could have sued OP anyway if there were no agreement, so the agrement doesn't significantly increase OP's risk exposure at all (except his risk of having nobody to sue if he gets injured himself).
> By the way, thanks for the great trouble you and everybody else have
> taken to explain things to me.
>
> Back when I first encountered "Hold Harmless", the first resource I
> stumbled upon to explain it was Black's Law Dictionary. According
> to Black's, "Hold Harmless" means pretty close to the same thing as
> "indemnify" and that sounds to me pretty close to the same thing as
> "I have to pay for everything." Or in other words, what you said.
"Hold harmless" _does_ basically mean the same thing as "indemnify". But "indemnify" means 2 different things. It means affirmatively paying out money to cover someone else's loss, OR it means taking steps to ensure the other person won't suffer a financial loss in the first place. What OP is doing if he signs the agreement is (except as outlined above) agreeing to make sure the protected parties (the "indemnitees") don't get harmed by anything OP does in the first place, i.e. by his promising not to sue them, and also by his acknowledging that he is responsible for his own conduct that may injure himself or others and his promise that he (and his widow) won't try to foist the blame off on anyone else.
> All my friends, and all of the other posters here, are saying that
> it doesn't mean that; it means only that I can't sue them. I would
> probably be OK with that, as chicken as it obviously is.
Do you still feel that way after reading my post from 4/12?
> I don't get it. If I was just releasing them from a claim I might
> make, then what is the point of the whole "any person" clause.
Because "any person" is broad enough to cover all the various kinds of people who may be authorized by law to act in OP's shoes in affirmatively suing one of the protected entities, and saves having to recite the whole laundry list.
> According to my understanding, I couldn't sue for damages to some
> other random member of the public anyway.
But you could if you were that person's legal representative, e.g. the parent of a minor child, or the widow of someone killed in the accident, or the guardian of someone who is mentally incompetent, etc. Or even if you just bought the right to sue from the person who was injured. Yes, that can be done and is done all the time and there is nothing unethical about trading in injury claims; that's what insurance companies do.
> So that clause only comes
> in to play when some third party has a claim and/or sues.
No, as outlined above. But it _does_ come into play if an unrelated third party sues you, since you are one of the protected indemnitees too.
> For example: Somebody I never saw before gets hurt. They sue the
> "association" and also name me, saying "He was standing right there,
> he should have prevented it.
>
> So according to one reading, "hold harmless" means that I have to
> hire them a lawyer, and then when we lose I have to pay for any
> judgement against them.
Yes, IF IT"S FOUND TO BE YOUR FAULT. Which you would have to do anyway, even if you had not signed any agreement. In practice, if the third party sues both you and the organization, it is the organization's lawyers who rely on the agreement to protect YOU as well as the organization. They are, after all, no more or less than a collection of individual participants, all of whom signed such agreements and all of whom are protected by it. They're on your side, man! They're in it together with you, they're not the enemy!
In theory, yes, one can imagine a bizzare scenario where OP could wind up being the only indemnitor and have to pay defense costs out of pocket for a suit he otherwise had nothing to do with, if there is nobody else who signed an indemnity agreement, and if an unrelated third party, who didn't sign any such agreement, then sues the organization for an injury that likewise has nothing directly to do with OP.
But if OP is the only "participant" who signed an agreement, hell must have frozen over. OP overlooks the law relating to apportionment of multiple indemnity agreements, which usually comes into play when, frex, there is more than one insurance policy providing liability coverage. A court would have to determine whether one policy is primary (responsible for initial defense costs, as well as damages up to their policy limit) and the others only come into play secondarily if the first one isn't enough, OR whether all are considered primarily responsible for the indemnification and in that case must share the costs proportionally. In either event, OP is just one of (probably) hundreds of participants who, at best, are considered "secondary" indemnitors (so that the sponsoring organization, and/or its insurance company if any, are who will primarily pay for the lawyers, etc. to defend against claims) or who, at worst, have to foot the bill themselves if they are _all_ found to be primary indemnitors (highly unlikely) but then they would SHARE proportional responsibility with all the other participants who signed similar agreements. Thru all the permutations discussed above, that latter scenario, the one OP appears to worry the most about, is so unlikely that he would be better off spending his worry energy focusing on the risk of being hit by a falling asteroid.
> If that is a viable reading of it, and now
> I am not the only person who thinks so, then the deal is off.
If you still feel that way after reading this, then both you and the organization are better off if you do not participate. They cannot give you any guarantees in life, and neither can anyone else. Only those who are comfortable taking full responsibility for their own actions (with or without a financial safety net such as an insurance policy you obtain on your own) should put themselves at risk in situations like this. If OP declines to participate, we should respect his choice.
--
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