Training & Liability

[Bob White]

Simply filing the paperwork does not put the responsibility on the council. The decisions made by the leadership and the training opportunities that they avail themselves of, or ignore, continue to play a role whether the paperwork is filed or not.

 

[scoutmomma]

Scotteng, thanks for the reminder about the importance of "the paper trail." We always file tour permits, and Council has never ever ever questioned anything we've included about leader training in CPR, Safety Afloat or Climb On Safely.

[scoutldr]

Two of my better qualities are healthy paranoia and prudence. Being a reasonably intelligent man, I don't rely on others to bail me out, should the worst happen. Especially, the suits in Irving! On the advice of my financial advisor, I took out a $2 million umbrella liability policy (less than $400 per year), which required that I also increase my automobile limits. I am constantly amazed at how judges rule, when in my non-legal brain it's a no-brainer. Be prepared!

[Eamonn]

Seems to me that I'm seeing a lot of legal terms being used, which I have to admit I have never seen in any of the BSA Training Syllabus.

 

I'm not an expert on insurance.

I'm not a lawyer.

I didn't stay at a motel last night, not even the one that makes you smart or clever.

So please take (or leave) what follows with that in mind.

When I look at the on line G2SS I read:

 

"Scouting $$$ Pay Liability Claims

The BSA general liability program is not just insurance. In fact, insurance plays a very small part. Our greatest efforts are spent on safety and injury prevention.

BSA self-funds the first million dollars of each liability claim. This means that almost all money spent on a liability claim is Scouting money, not insurance money.

Accident and sickness insurance pays regardless of fault as long as the accident occurred during an official Scouting activity and the unit or council has purchased the coverage.

 

I don't see any mention of Training.

 

Some years back I remember reading an article in a magazine, I think it was US News and World Report, I'm not certain.

It was about Liability, it had a story in the article about a little girl who went into her next door neighbors back yard when they were not home and used the swing set that they had.

She fell off and damaged her leg which resulted in her having a permanent limp.

Her family found a lawyer who sued the manufacturer of the swing set, Sears who sold the swing set and the family that owed the swing set.

I don't know or remember what the final outcome was.

My point is that we are never immune from being taken to court and someone suing us -Even if we are not home!!

 

I do think that the volunteer who made the "BSA insurance does not cover a troop on an outing unless at least one leader on the trip is officially trained according to BSA specs." statement,was wrong.

But I also think if someone is trained and does what they are supposed to do they are not as lightly to get sued.

Being as the BSA states:

"Accident and sickness insurance pays regardless of fault as long as the accident occurred during an official Scouting activity and the unit or council has purchased the coverage" And I know that the Council I serve does have that insurance, I'm left asking myself "What's left?" And "Who would they go after?"

I don't know how many volunteers do get sued? I have only heard of one from our Council in 25 years and "They" (The lawyers) didn't go after the volunteer they went after the Council. The Council did end up paying the legal fees to the firm that the National Office said was to represent the Council. The case was settled by the plaintiffs accepting an undisclosed amount of money which was decided out of court.

The person who was at fault was at fault big time and ended up in jail, but he didn't have to pay any of the money that the plaintiff's received.

I really think that there are so many myths and legends about this issue: Travel in uniform (Not true) Failing to file paperwork on time (Not true) The list goes on and it seems people are happy to add more to it each and everyday.

I'm sure that no one in their right mind ever wants to see any child hurt or harmed.

I would hope that as Scouter's we do our best to follow all laws, not just because it's the law but because we want to set a wonderful example to the children and youth members we take care of.

When we do all this and Be Prepared, thinking ahead and asking the "What if?" questions, not only do we do a better job of keeping the children safe, we also remove the liability.

But maybe OGE is on the money, I'm just unsure what questions you might want to ask?

Eamonn.

 

 

 

 

 

[Bob White]

Eamonn

The conditions for the accident insurance are different from the conditions of the liability insurance.

 

Accident insurance, as you correctly noted, is always inforce for any official scouting activity and is not dependent on any other condition.

 

Liability does have other conditions that can effect whether or not a leaders legal fees and court fines will be paid for by the BSA or not. Liability protection is NOT a guarantee. It is a benefit available for leaders who show due diligence.

 

You are correct it does not guarntee you will not be sued or that you will win your case. It only offers to pay your legal fees and financial judgements if you have followed the available training and regulations of the BSA as related to the activity.

 

When would liabilty be an issue beyond the accident insurance? Most often in the case of property damage, or an injury that resulted in permanent disability, death, or dismemberment.

 

 

Scoutmamma

Sorry for the confusion. I was just trying to emphasize that the liability protection requires more than being a registered member. Taking training and following that training is a consideration in determining if a leader has taken resonable steps in showing due diligence.(This message has been edited by Bob White)

[thebigguy]

thats true bob, there is a diffrence and thats what I like about the bsa policy. just becuse you are wearing the uniform does not mean you are automaticly coverd. some people tend to forget that. and as far as training being a large part of due diligence I have to strongly agree but for refrince, is that policy or opinion?

[Bob White]

Here is one example. It comes from a court case involving a Den Leader where a scout during a den meeting at her home was hit by a car and killed.

 

The judge in determining that she was not liable pointed to a number of elements including that the leader was current in all the related training to her position oin scouting, that the meeting had a planned agenda that did not include the scouting hopping on someonelse's bike and riding into the street between two parked cars.

 

She had the right amount of adult supervision and a sfe location for the activities. The judge determined that these were all reasonable steps in showing due diligence and was not found liable for his death. The BSA provide the lwyer that defended her and all her costs were covered by the the BSA because she showed due diligence in her responsibilities ans a leader in the BSA.

 

You will find the due dilligence clause in the liability paperwork available through your council office.

[Beavah]

Yah, seems like we're on the liability and insurance kick again. Now, to correct some really bad information:

 

It is not true that liability insurance only covers you if you exercise "due diligence." If that were the case, the proper cost of liability insurance would be $zero!

 

"Due diligence" is a term of art, and it relates to whether there should be a finding of liability in the first place. If a person has exercised due diligence, meaning they've done everything a reasonable person would have done under the circumstances, then they are not liable. They did not breach their duty of care.

 

General liability insurance, including the general liability policies that da BSA provides as part of the charter agreement, applies when you have goofed and are liable. It is thus in force whether you exercised due diligence or not.

 

It is also untrue that insurance applies only to natural persons. In fact, in da unit context, the natural persons will generally have statutory immunity from a simple negligence tort. The risk is to the CO, a corporate person, and da BSA general liability policy will definitely apply for that organization.

 

It is true that BSA accident and general liability policies are different things, eh? Their terms of coverage are different. As a rule, da general liability policy's coverage is substantially broader than the health coverage, not narrower as BobWhite suggests. It applies in all cases when a CO or volunteer leader are facing a tort action for any reason (short of deliberate acts intending harm), not just to members/guests. By contrast, da HSR policy is just a cheap, low-limits thing, eh?

 

Finally, it is simply dead wrong and it does a substantial disservice to Scouting to claim that the BSA will not stand by our leaders and CO's even when they aren't trained, even when they mess up da paperwork, even when a kid gets hurt. We pay millions of dollars a year in claims under exactly those circumstances. Our insurance even covers unregistered adults, not just those who are registered but not trained. It is our promise to our volunteers and our CO's, and is a key ingredient in how we recruit support for Scoutin'. In this day and age when people get all fearful about this legal stuff, it is vitally important that da BSA maintains its well-deserved reputation of being a good partner.

 

Beavah(This message has been edited by Beavah)

[Bob White]

"It is not true that liability insurance only covers you if you exercise "due diligence." If that were the case, the proper cost of liability insurance would be $zero!"

 

I have no idea were that logic comes from but it is easily disproven.

 

Even a driver with a perfect record has to pay for insurance whether they use it or not. The same holds true of liability insurance.

 

 

You cannot do anything you want and expect to be protected by insurance. If you purposely run your car into a tree and then expect to be able to get insurance protection for the accident you will be waiting a long time for it and perhaps waiting in a jail cell.

 

here is the quote from the BSA's liability document.

Risk Management Notebook

Section 16: Primary General Liability Insurance for Chartered Organizations and Participating Organizations

 

"There is no coverage for those who commit intentional or criminal acts. Liability insurance is purchased to provide financial protection in the event of accidents or injury that is neither expected nor intended."

 

This is the due diligence statement. Not following a BSA safety rule, or not attending the related training, or not following the prescribed procedures, can be determined to be an "Intentional Act" and the liability protection can disappear. Hence...the "NO COVERAGE".

 

Now if anyone has a different BSA document that says otherwise perhaps we can avoid the "uh-uh you're wrong" mentality and simply discuss what this means to the volunteer.

 

 

 

 

 

[thebigguy]

"or not attending the related training"

 

my question still remains.

is that in the policy or is it opinion?

[evmori]

Let me see if I understand this. During a den meeting in her home, a member of her den was hit by a car and killed? Did the car come into her home & run the scout down & it resulted in his death?

[Bob White]

Being a good scoutleader, like being a good employee is not controlled completely by policies. It should not be necesarry for a leader to need a policy to know what to do, or when to it, or even how to do it. A large part of scouting, like other aspects of an adults life, relies on the ability to take separate pieces of knowlegde and see how they fit together as circumstance or situations present themselves.That knowledge comes largely from learning through trainng.

 

Is a policy really needed to know that training is a basic expectation for knowing and understanding a person's job.

 

 

 

 

 

[Beavah]

LOL. It's like insurance misinformation is the stock in trade of trainers who can't follow the syllabus. Like a bad penny, it just keeps turnin' up.

 

The passage you refer to, BW, citing an exclusion for "intentional or criminal acts", is also a term of art. That refers to something like molesting a child, where there is an intent to do harm (regardless of whether it is found to be criminal). It is certainly true, and quite proper, that liability insurance will not protect an individual who molests a child, commits a "road rage" incident, or who otherwise intends to hurt another human being.

 

Yeh can feel free to look up "intentional or criminal act" in any beginner's text on tort law and insurance at your local library. No need to trust us furry, flat-tailed fellow scouters.

 

But it's also true that da insurance will protect the CO and the other volunteers even when a horrible case of molestation occurs. Even if they didn't do a perfect job with Youth Protection.

 

So in the example of da driver with a heretofore spotless record, if he runs a red light (racing the yellow...) and causes an accident his insurance will cover him, eh? It'll cover him even if he was speeding. Heck, it'll even cover him if he was drunk! That's why he pays that premium. To protect him in a case where he really is at fault.

 

I'll return to my main point, though. If we want to help scouters do a better job, we help 'em to understand and make sound judgments about safety. That means explainin' the whys and wherefores of the guidelines, and how to balance risk against learning or other things we care about. To talk about children, and not about lawyers.

 

If we find we need to make up fake reasons like losin' insurance, then we're not doin' our job of being Helpful. And we're hurtin' Scouting's reputation and our own in da process.

 

Beavah

(This message has been edited by Beavah)

[Gold Winger]

As I've pointed out before, both my DE and my lawyer disagree with the Beaver on this point.

 

 

[John-in-KC]

This is getting beyond ridiculous.

 

First of all: Every Council I've encountered so far has an attorney somewhere on the Executive Board. He takes the post of General Counsel to the xxx BSA Council, Inc. Whether he takes it as a volunteer or a retainer is immaterial. He advises the SE, the Board, and volunteers on questions of law, including liability.

 

In larger Councils, you may find a CPA amongst the Professional Staff, as the Comptroller. The ones I've encountered thus far have a working knowledge of BSA liability and the various insurances the Council procures.

 

Even the smaller Council has access to resources: They can contact the BSA regional offices to help answer questions, they can also contact the National office. Certainly technical questions such as liability are also covered in an array of training packages... BUT!!! Training packages for a volunteer, presented by a volunteer, are no substitute for the advice and assistance of a qualified attorney.

 

Beavah has also said it, as I recall. Certainly NLDScout has... Any question of law has to be answered in direct context of where you live. The law is not as uniform as we laypeople would like it to be. One of the reasons the US Supreme Court accepts cases is to settle differences in the law between two or more jurisdictions (most often Federal appeals courts).

 

I've said enough. I'm glad I'm a tired old public policy guy and artilleryman, not a lawyer.