On Apr 16, 7:05 am, David Harmon <sou...@netcom.com> wrote:
> On Sun, 15 Apr 2007 07:50:34 -0400 in misc.legal.moderated, "Mike
> Jacobs" <mjacobs...@gmail.com> wrote,
>
> > 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.
>
> (That intention, by the way, is incompatible with "deep respect"
> and is just the kind of thing that some call chicken.)
A promise without consequences is an illusory promise. If the paper you were thinking about signing said in effect, "I promise not to sue you, but if I change my mind and _do_ sue you, then, it's up to the court whether this agreement means anything or not," it would be silly: what incentive do you have not to go ahead and sue anyway, and see what happens? But if it says, "I promise not to sue you, and if I (or my widow, who may not be of the same risk-taking mentality as I am and may think I was stupid for crawling around in antique flying machines in the first place) change my mind then not only will I lose the suit, but I will have to pay the costs you incur to defend against that suit", you or your widow may think twice before suing. In that (actual) case, would you feel that the fact the agreement has teeth, and actually imposes consequences that mean something, means they are disrespecting you? No, IMO having you sign a silly piece of paper that means nothing because it prevents nothing would be more disrespectful. Adults recognize that their actions have consequences. Children ask for "do-overs".
Decedents often put in-terrorem clauses in their wills to prevent will contests (e.g. I hereby bequeath $x to cousin Willy, but if Willy contests the Will, that bequest is null and void"). Do they disrespect their own relatives by doing that? Not in my opinion. They do it to keep a certain measure of discipline and control, even after they die, yes, but they do it out of concern for the harm that strife could cause in the family.
In fact, if you take that view to the extreme you could make an argument that _all_ laws (and all written contracts) are chickens**t and disrespect everyone because, hey, we're all good-natured at heart, right, and we all know the difference between right and wrong and how to behave? So who does the govamint think they are, telling us what to do? Well, we don't always know what to do, even if our intentions are good, and it's not always that clear just on basic ethical principles how one should behave when various people's interests are conflicting, and even the wisest and most ethical person realizes that there is a need to have a frame of reference outside of the self to provide structure to those ethical impulses as well as pursuit of legitimate self interest. So we need law. And contracts, typically, need to consider all the "what-ifs" that could conceivably happen that might twist or get in the way of the main purpose of the agreement. That doesn't mean the contracting parties disrespect each other; in fact, the more powerful and feared the other side is, the more it is necessary to put mechanisms into the contract that keep both sides honest. As used to be said in the context of nuclear disarmament treaties with the Soviet Union, "trust, but verify."
> >Do you still feel that way after reading my post from 4/12?
>
> Yes. But it's beside the point. Let's move on. I'm still only
> asking about the actual meaning of the proposed agreement.
OK. And to cut that short too, I do agree with your interpretation of the language of the contract simply as a matter of plain English. Yours is certainly one possible reading of the consequences of the agreement that is apparent from its grammar and syntax.
> >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.
>
> Well, the wording of the part involving "any person" is not about
> who brings the suit, but rather who is injured,
Exactly. Which is why I think the most reasonable interpretation does _not_ make you indemnify them when "anyone" randomly brings suit, but only when _you_ (or your successor) bring suit on behalf of "anyone" who is injured.
> so what would the
> laundry list be? "any person" is not only broad enough to include
> anybody who sets foot on the entire airport, it also strongly
> suggests that they intended exactly that. I would MUCH rather read
> the laundry list if they intended anything less.
"All persons" may include, in addition to the listed "employees and representatives", your (the participant's) minor children, as well as anyone else on whose behalf you could be authorized by law to bring suit against the organizers. Remember, it is possible and legal to buy a "chose in action", the inchoate right to sue for a personal injury tort. So, if one of your fellow participants (who had also signed an identical agreement) got hurt, and was unable to sue directly because he signed the agreement, he may sell his right to sue to you, and (unless the agreement was broad enough to apply to "any person") you could then bring suit against the organizers on his behalf. The "any person" language is intended to prevent this as well as any other creative ways someone might come up with to try to get around the suit prohibition.
> Then they add the laundry list, anyway, with "including but not
> limited to PARTICIPANT or his/her employees or representatives or
> property". Which only emphasizes that they intend to include
> persons other than those.
Yes, it does. Which is why, at a stretch, a court _might_ interpret it to mean that you would be personally responsible for defending the organizers against any suit brought by anyone else, even if completely unrelated to your involvement in the project and even if you (or your representatives, etc.) had no role in bringing the suit. The only reason why I, and the majority of other posters on this thread, felt that was not likely to happen is that it is not _reasonable_. I'm not about to tell you it CAN'T happen, because given your serious concern about the issue, I would be going out on a very shaky limb to do so. But courts generally apply a "rule of reason" to such language and when faced with two possible interpretations, will reject the unreasonable one and adopt the one that makes sense.
> They also seem to have no problem with a laundry list of parties for
> me to indemnify.
Maybe I didn't make myself clear. It's not the length of the laundry list that makes it necessary to use a sweeping generalization instead, it's the indeterminacy of the list. The list of groups and persons to be protected is readily determined. But as to the list of persons who might be injured who might sue, no matter what list of individuals or categories one might come up with, a clever person with an intent to get around the purpose of the agreement could find a legitimate way to arrange things so that suit might still be possible by someone not on the list. As by selling his chose in action to someone else, frex. Therefore, the only way to bar _all_ suits is to use sufficiently broad language such as "any persons".
> >Yes, IF IT"S FOUND TO BE YOUR FAULT.
>
> Why do you think it's got to be my fault? Nowhere in the agreement
> does it say anything about it being my fault.
Because of the "rule of reason". It is highly unlikely that a court would determine the agreement meant that you were personally responsible for paying all legal costs and damages the organizers incur when sued by anybody regardless of whether their claim was connected to you in any way. You are not an insurance company; that would be engaging in the business of insurance, gratis no less, and would be an unreasonable interpretation of the meaning of the language of the agreement.
> "Hold harmless" as far as I can tell has nothing whatsoever to do
> with who's fault it is. I could promise "I will hold Mike Jacobs
> harmless for any injury sustained by Barry Gold" and then if he were
> to sue you for an injury, I would have to defend you, and reimburse
> you. Right?
Yes, but the only circumstance I can foresee in which you would have to do that without having any recourse against _me_ for causing you to incur that loss, is if you were an insurance company and had collected premiums in consideration for accepting that risk. If you were an individual acting as surety for me in connection with my dealings with Mr. Gold, and if I did something that hurt Mr. Gold and he sued me for it, he could collect those damages from you the surety, but then you the surety would have a "subrogated" right to claim reimbursement from me, your principal, because I was the one primarily responsible for causing the harm. Similary, EVEN IF the agreement you are contemplating were held to put you in a position of acting as individual surety to the entire organization, when they were sued by anyone, regardless of their connection to you, and even if that unrelated injured party came after you for some reason (say, because the organizers and the city had all gone defunct, and you were the only one who had deep pockets) you would still have a subrogated right to reimbursement of those costs you incurred on behalf of the parties you indemnified for something that was no fault of your own. In other words, for most practical purposes it's a wash, since the unrelated injured parties would have no greater rights against you than against the (deeper-pocketed) organizers you were indemnifying, and the organizers (as primarily responsible indemnitees) do NOT have a primary right to demand that YOU step in and defend THEM against the third party claim. They would only have the right to do that if you were their insurance company. You are not; at most (and this is based on YOUR reading of the "any persons" clause), you are on the hook as an individual surety for the organizers' list of protected persons.
> The wording of the agreement is parallel to that.
>
> >"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.
>
> But either way, the agreement is all about me having to cover claims
> that I would not have to cover without the it. Without the
> agreement, I would be responsible for damages that were MY FAULT.
> So those _additional_ costs, that the agreement makes me responsible
> for, would have to come from the set of things that were NOT my
> fault.
Or would come from your (or your legal successors') having breached the agreement by suing in spite of having agreed not to sue.
> So there, unless I am wrong, we have me obligated for
> * judgement awarded against "the association" or someone else
> * on behalf of any random member of the public
> * for something that is not my fault.
> I don't understand why that's not true.
The only reason it might not be true is the rule of reason. But that's a pretty good reason. Yet, no one can guarantee that the result you fear is 100% impossible. The law of indemnity, insurance, and suretyship is very complex and hard even for many lawyers to understand, and all any of us on this thread have provided is a skimming of the surface and a paraphrase of the most likely bottom lines without going into all the reasons why. Again, if you are concerned over this provision, you should NOT sign the agreement and should decline to participate. It IS an agreement to indemnify someone else that imposes obligations on you that you would not have in the absence of the agreement, and no one can tell what it really means unless and until someone challenges it in court and gets a definitive judicial ruling on the effect of its specific language. Until then, many interpretations are possible.
> I don't even understand why
> it's not an obvious issue jumping out on the first reading, even if
> it's actually a false alarm.
It _did_ jump out to you on first reading. To me too. And if this lengthy discussion with many participants has not set your mind at ease, then you should not sign the agreement. Signing off this thread, and Good luck,
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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