Owner personal liability if prospective buyer injures himself?

[John E Davies]

I have been trying to get a written response from Sales but so far I have heard nothing after three emails. I guess I will have to call, but I need to have this in writing. I thought I would bring this issue up here to see what folks think.

 

I received an email several months ago from a fellow Ollie owner. He was showing his trailer to a couple referred to him by Oliver Sales, and a woman tripped and nearly fell on her face exiting the stairs. He is concerned about liability and a potential personal injury lawsuit and he withdrew from the sales program. That seems a little extreme to me. However, I did not see a stranger nearly destroy her face on my driveway

 

This had never occurred to me but he has a valid position. I would hope that Oliver Trailers would help an owner who got sued by an injured potential buyer..... Considering that the owners are their only extended sales force, this should be clarified and owners should be reassured that they are backed up by the company.

 

I asked Anita to discuss this with the rest of the staff, and I am sure their company lawyer has some good input.

 

Would it be prudent to have a liability release form signed by the prospective buyers?

 

What would be the best wording?

 

Do these stand up in court?

 

Has anyone been injured viewing YOUR trailer, and what was the result?

 

I am not trying to scare anybody or stir up unrest, but this is an important topic that needs to be discussed. I would really like to remain in the program, but not if I am at serious financial risk.  Comments are very welcome.

 

BTW, I have shown “Mouse” half a dozen times through this program and only earned a half commission -$125 - because they had also viewed another Ollie. I don’t care about the commission, I like interacting with people.

 

John Davies

 

Spokane WA

 

 

 

 

[topgun2]

John -

 

I'm not a lawyer nor am I an insurance expert.  However, I have been down this road before regarding liability issues (not directly with my Oliver though).

 

While I'd be interested in hearing what someone with "expert" knowledge has to say on the subject, it would seem to me that in today's world it is prudent to have personal general liability insurance in addition to the normal home owner's and vehicle insurance that I assume virtually all Oliver owners carry.  I doubt very seriously that Oliver Travel Trailers would be in a position to "cover" the insurance or costs for any of us that chose to show our campers to anyone - to include prospective buyers and/or referred contacts.

 

Of course, if someone was injured while touring my camper I would assume that they would sue me and anyone else connected with the "showing" and this would include the entity with the deepest pockets - Oliver.  I would also assume that a court would take into account both intent and possible negligence in any decision that they would render.  Given some of the "crazy" decisions that we all have read about - who knows.  But, within the bounds of my financial resources, I try to cover my liabilities as best I can while at the same time living my life in a sane and prudent manner and do not expect Oliver to cover insurance costs for things that they can not directly control.

 

Bill

[Geronimo John]

@ Bill:  Umbrella coverage riders are common and relatively inexpensive.  I carry one due to living on a mountain side and also participating in extreme sports.  I suspect that OTT owners tend to be a bit better off financially than most, and as such a would have resources that ought to be protected from such legal entanglements.  Hence dropping a dime to ask their insurance carrier about an umbrella and its cost is worth more than a quarter.

 

@ John D:  Liability waivers are effective in the majority of states.  We use them at 99.9% of our hang gliding and paragliding sites as a result.  So far they have been effective in court scores of times.  In my case, a pilot while on tow made critical errors and crashed.  My Texas waiver was reviewed by USAA and they stood behind me as a result.  The law suite was filed not by the pilot that crashed, but by his medical insurance provider OVER his objections.   Same likely will happen to the OTT owner with the face plant incident.  The lady likely will admit she was not rendering due care and fell.  But her insurance company will go after the trailer owner and OTT as well.  A liability waiver would at least even the playing field.

 

 

[John E Davies]

I appreciate the comments. I have had a general Umbrella Liability rider just about forever, it is currently $1,000,000. I don’t recall the exact premium amount, it is not exactly cheap. I have no clue how much a court case could award a damaged buyer, but I bet it could be many times that. I should ask my agent about increasing it.

 

A waver sounds good. I will try to speak with sales tomorrow when I am stuck at home during our next @#$&* snow storm...

 

John Davies

 

Spokane WA

[JWalmsley]

Gentlemen,

 

Thank you for bringing this topic to light. I apologize if you have written emails to our Sales Staff that have remained unanswered.  I have spoken to our General Manager and he has spoken to one of our attorneys and is waiting to hear back from another attorney that specializes in this area of the law. In the meantime, we would like to thank you for bringing this to our attention and for all of your efforts.

 

We will post updates here when more information becomes available.

[hobo]

I can assure you; the liabilities are yours, and NOT Oliver trailers.

 

Even if Oliver Trailers referred them to you for a showing, you have volunteered to show your trailer and in fact, have agreed to accept payment ($250 Oliver gift card) for doing so if the visitor decides to purchase.

 

Oliver trailers has no way of controlling the safety of either the inside or the outside environment around your trailer.

 

It would be up to you, your homeowners insurance policy, and any RV policy you might have to cover expenses.

 

As mentioned before, a "waiver"  might help or it might not.  I wouldn't depend on it to save your hide though.

 

It's really no different than the liabilities you assume anytime anyone visits you at home.

 

 

 

 

[John E Davies]

 

It’s really no different than the liabilities you assume anytime anyone visits you at home.

 

I expect that you are correct, but maybe you are not. Insurance policies are intentionally deceptive and weird.

 

We agreed to be a foster home to a fertile female Australian Labradoodle puppy for three years, the breeder would artificially breed her twice and sell the puppies, and at the end of that time we would get her free of charge after neutering. The stipulations were that we would care for her as our own, not let her get knocked up by the dog next door, and the breeder would pay her vet bills and pay us $500 per litter as compensation. At that time pet quality puppies were selling for “only” $2500, and she was expected to produce 16 of them. We did the math and realized that our “$2500 puppy” was actually a $40,000 one.

 

So we needed to verify that our four month old puppy, who was very valuable (another breeder had offered to buy her outright for $12,000) would not destroy us financially if something bad happened to her. Theft was a high possibilty. There was no language about liability in the contract. My insurance agent told me that most definitely, since we were going to be paid to house and care for this animal, which did not belong to us, our personal liability insurance did NOT cover its loss. We had the breeder change the language on the contract so that she did not pay us at all, and we were to buy Zadie outright afterwards for a discounted “pet price”.

 

My point in this rambling story is that being reimbursed by a company to work for them as a sales representative does indeed change the dynamic. It is NOT the same as your inviting a passerby that you have already looked over, talked to and vetted into your hull for a quick look. The intent of letting a complete stranger into your trailer for business reasons is completely different. Intent is a very important part of determining liability.

 

This is VERY similar to “agreed value” vs “stated value” for a used car. Not understanding the difference will get you screwed if you interpret it wrong and end up filing a claim.

 

I don’t know the final answer, that is why I want to hear from the Oliver lawyer in writing. If there are any insurance agents here on the forum I would really like to hear your opinion.

 

John Davies

 

Spokane WA

[John E Davies]

My showing fee was sent on a company check and I declared it as income and paid taxes on it. Once there is a paper trail - written check, deposited into the bank - there is no way to disguise the fact that it is income.

 

Maybe, instead of cash payment, factory credit for parts (in-house or mailed to you) or service would be a way to avoid the appearance of an owner “working for” Oliver.

 

John Davies

 

Spokane WA

 

 

[Overland]

John, I think you and Hobo may have it backwards.  I'm no lawyer, of course, but I believe that if you are acting as an agent of another company, that they are required to indemnify you against liabilities, just as if you were an employee.  And I think that requirement is baked into the relationship by default; i.e., it doesn't have to be spelled out in a contract.  So in other words, you want to be acting as Oliver's agent rather than as an independent party, and the offer of a commission I think seals the deal on you being an agent.

 

I believe that it's Oliver's duty in this case to make sure that their agents' properties are safe and free of hazards.  If they don't/can't do that, then that just makes the injured party's case against them that much stronger.

 

For example, if I hire someone who works from home, and a client visits that home and slips on the front steps, I'm liable.  Similarly, if the employee slips on his own front steps going to the mailbox to get a work related package, he can claim workers comp.  I don't think there's much if any difference in those situations with an agent vs an employee.

 

Again, not a lawyer, so I'm eager to hear other takes.

 

What I'd like to see from Oliver is a) a clarification that they understand that owners are acting as agents on their behalf when showing their trailers, and b) assurance that they have proper insurance in place should a 3rd party injury occur.

[hobo]

It would be interesting to see what Oliver says but here's the insight provided by my very good friend and next door neighbor who happens to be the president of a very successful homeowner's insurance company.  He's also been on the board of several other insurance companies throughout the United States prior to his current position here in VA.

 

I posed the questions as previously stated and he submitted that the relationship between Oliver trailer owners who have volunteered to show their trailers to prospective customers for some sort of remuneration (gift card, small amount of cash, etc.) does not constitute a material relationship with Oliver.  In other words, that person would not be considered an agent of Oliver trailers nor would that person be considered an Oliver employee.  In short, this would not be considered a business relationship.

 

He did say that this could change if you were working under some sort of contract with Oliver where in fact you might be considered an agent.

 

In the example of the dog breeding exercise, he said that since this was being done pursuant to a contract and that you were being paid to perform services under that contract, that is materially a business relationship and to that end, your homeowner's policy would normally not cover you for liabilities for accidents related to that activity.

 

Now that's coming from an industry expert and not me personally although I concluded from the beginning that we're on our own if something happens when we show our Olivers to interested parties.  Having said that, I will personally show my trailer if asked.

 

I would like however for someone to follow up on the waiver questions.

 

Hobo

[Overland]

Thanks Hobo, that's good info.  It sounds like it all comes down to whether or not you'd be considered an agent.  I'm curious where exactly that dividing line is drawn.

[JWalmsley]

Dear Owners,

 

On March 11th, we stated that we were looking into this and here's what we have come up with so far and there will be more to follow:

 

First of all, we’d like to express how much we appreciate any owner who voluntarily shows their travel trailer to others who show an interest. We acknowledge your contribution as being a large part of our success. However, this is a voluntary program and if at anytime an owner feels there is too much risk, they should withdraw from the program. Regardless of whether you take part or not, we appreciate you.

 

Both our attorney and our insurance agent have indicated to us that since we do not have any control over the owner, their trailer or their premises it is not a risk we can insure against. We are working to create a “hold harmless” agreement that we can put into the terms and conditions that folks agree to on our website when they request a field visit. The value of such an agreement will be limited in terms of how much protection it may provide due to the fact that there are so many variables in the potential circumstances and the laws governing liability vary from state to state. Once we have the hold harmless in place, we will post it here.

 

Commercial insurance, which we carry, covers our employees and products but not our customers. We did ask if there was a rider available and were told not at this time.

Regarding your personal liability there has already been a lot of discussion here so it doesn’t need repeating. You should check with your carrier to see what coverage you have if this is a concern as people come and go from your property every day for any number of reasons.

 

Again, thank you for all of your contributions, we are looking forward to seeing you at the rally and we can discuss this further there if anyone comes up with anything else.

 

[John E Davies]

I decided to drop out after conferring with my insurance agent. I could have increased my Umbrella Liability to a safer level but that would have been costly. I sent this to Oliver Sales:

 

"I have become uncomfortable with the liability issues and do not want to have customers referred to me. I will happily continue to show “Mouse” to interested passerbys, and send in referral cards for them.

 

My big concern is that Oliver Trailers does not “vet" the referred customers in any way that I am aware of, and I have no option but to let them in when they show up. If I am doing this at a campground I have a chance to look them over, speak with them and send them on their way if they look at all sketchy. I have never had a bad experience with my several showings, but OTH I feel as if I have no control over who comes knocking."

 

I have been accused of being overly cautious when it comes to insurance.... so be it. Everybody has a comfort level.

 

John Davies

 

Spokane WA

[John E Davies]

I am bumping this old thread, can anyone contribute any new information? As a recent buyer, within the last  year, did you have to sign or agree to any kind of liability release from the Sales Dept before you were given the contact info for a showing?

Thanks,

John Davies

Spokane WA

Edited April 6, 2020 by John E Davies

[WhatDa]

Not as of last summer...

[routlaw]

John

Its curious this comes up. My experience may be something altogether different but its worth noting here and would be great if we could get some clarification from Oliver on this. In January I showed a couple our Oliver. They like what they saw and placed an order with Oliver almost immediately. However once Oliver sent them a contract there was an "indemnification" clause in the contract the would be buyers felt very uncomfortable with. To make a long story short the potential buyers backed out of the purchase and build. 

I can't help but think this is all related. To that I will add I don't recall seeing any such clause at the time we purchased or ordered out Oliver but that was some 5 years ago and a lot can change in that amount of time. Its also not something I have heard people complaining about but then I don't spend copious amounts of time in these forums either.  Lately I've had lots of time on my hands and thus its easier to do. 

Jason, can you shed some light on this please.

Thanks

Rob

[Trainman]

I agree with HOBO and Oliver on the question of liabilities when someone visits your property, this can happen either by being invited, or not being invited and liability falls right with you. We own a private lake on our property and when we purchased this property we opted to upgraded our umbrella coverage as we felt we did open ourselves to increase liabilities. I do note here that many older people do the trailer thing and going in and out of trailers can be a problem for many of them, I find this happening at rallies when they have those open trailer times and yes, I have seen visitors fall when interning and exiting trailers. I have personally stood at the exit of my trailer and gave visitor a heads up on where to step and the location of the grab handles, just because I see many are unaware of exiting procedures. Also keep in mind that someone visiting your Oliver it is probably there first time to see an Oliver, so it's all new to them. Once again don't put the blame on someone else when you gave visitors permission to visit your property, if in doubt on doing things like this, just say, NO. 

trainman

[Trainman]

18 hours ago, routlaw said:

John

Its curious this comes up. My experience may be something altogether different but its worth noting here and would be great if we could get some clarification from Oliver on this. In January I showed a couple our Oliver. They like what they saw and placed an order with Oliver almost immediately. However once Oliver sent them a contract there was an "indemnification" clause in the contract the would be buyers felt very uncomfortable with. To make a long story short the potential buyers backed out of the purchase and build. 

I can't help but think this is all related. To that I will add I don't recall seeing any such clause at the time we purchased or ordered out Oliver but that was some 5 years ago and a lot can change in that amount of time. Its also not something I have heard people complaining about but then I don't spend copious amounts of time in these forums either.  Lately I've had lots of time on my hands and thus its easier to do. 

Jason, can you shed some light on this please.

Thanks

Rob

I guess we signed the contract with that indemnification clause included in it, as our trailer is only 9 months old I must have agreed to it.  Since the clause was probably added for Oliver protection and advised by there lawyers it probably meets the laws of the land. I think this clause was regarding money for the down payment, but maybe not. All being said I have never heard of Oliver forcing you to take your trailer if personal problems arose that would make delivery not going to happen. You probably couldn't deal with a company devoted to doing it right for complete customer satisfaction. 

trainman

[hobo]

On 4/6/2020 at 2:13 PM, John E Davies said:

I am bumping this old thread, can anyone contribute any new information? As a recent buyer, within the last  year, did you have to sign or agree to any kind of liability release from the Sales Dept before you were given the contact info for a showing?

Thanks,

John Davies

Spokane WA

At best, the liability release "might" help Oliver Trailer from legal action if a potential customer referred to you gets hurt while viewing a privately owned trailer; but it won't do anything for the party actually showing the trailer.  Anything provided by Oliver to a potential customer is ultimately designed to protect Oliver, not you irregardless of the language in the liability release.  It's your trailer, your property and therefore you're at the pointy end of the spear if someone wants to claim damages.  I seriously doubt if any attorney retained by Oliver Trailers is going to spend anytime trying to defend you in court.  As mentioned before, your liability insurance is all you can depend on.

[routlaw]

@ Trainman, it was my understanding the indemnification clause had nothing to do with the financial end of things but about personal injury. However I did NOT get to read the contract so who knows for sure. 

[Naegele]

We took delivery 11/25/2019 of a Elite II.  I tried to make a educated decision about insurance and did ask about injuries of others in and around the RV that may be blamed or considered my responsibility.  Anyway I settled on a policy from Safeco which included full replacement costs (cost at time of purchase, $68k) and I added a coverage called “Vacation Liability” $300,000 liability coverage for $11 extra premium annually.  It was implied by the agent as protection against injuries to others in and around the RV.  The 81 page policy document lends no comfort or confidence to this coverage (legal terms confusing and extensive) but Safeco took the $11 extra so they are in the boat with me for “something”!!!   As an aside FYI general info., this policy effective last November has a paid in full annual premium of $934.  We are based in Florida.  

[BackofBeyond]

At some point it all becomes pointless. We believe we have done all  the right things, and still we feel risk.  Not sure there is anyway to eliminate it. Be safe all.

[John E Davies]

Bump for an old thread. Being risk averse (my wife would call it something else) I have not shown my trailer “officially” for three years, nor do I plan to do so. OTH drop-ins are always welcome, if they bring donuts…. 😁

John Davies

Spokane WA

[Mike and Carol]

I’ve shown our trailer a couple of times in the last month or so.  Once at home and once while camping.  My risk assessment is that the risk is very low.  We enjoy meeting like minded people and being able to help folks in their decision making process.  YMMV.  Mike

[Rivernerd]

On 3/22/2019 at 4:45 AM, JWalmsley said:

Both our attorney and our insurance agent have indicated to us that since we do not have any control over the owner, their trailer or their premises it is not a risk we can insure against. We are working to create a “hold harmless” agreement that we can put into the terms and conditions that folks agree to on our website when they request a field visit. The value of such an agreement will be limited in terms of how much protection it may provide due to the fact that there are so many variables in the potential circumstances and the laws governing liability vary from state to state. Once we have the hold harmless in place, we will post it here.

John Davies suggested I apply my experience as an attorney retained by insurance companies to the issues raised by this old thread.  As I feel indebted to him for his dozens of incredibly useful posts on this Forum, here are my thoughts.

Per the quote above, Oliver asserts it cannot purchase insurance protecting Oliver owners who show their trailers.  But, Oliver surely can choose to use its corporate resources to defend and indemnify those owners against personal injury claims arising out of a showing, including retaining counsel to defend any such suit.  It would be an uninsured sales overhead expense.   I'll bet Oliver has agreed to fully defend and indemnify its senior corporate officers (using company funds) against personal liability when they are acting within the scope of their employment.  This is common language in executive employment agreements.  Oliver could do the same for owners who agree to show their trailers.

But has Oliver done this?  Not that I can find.  Given the substantial financial benefit Oliver enjoys from the "See an Oliver in Your Area" program, I believe Oliver should offer that defense and indemnity.

Also, my quick review of this thread revealed no hold harmless agreement published by Oliver, despite the suggestion in  JWalmsley's above-quoted post three years ago.  Did I miss it?  And, upon review today of the Terms and Conditions on the "See an Oliver In Your Area" page on the OTT website, I could not find such language.  If I have missed it, or missed language published by Oliver agreeing to defend and indemnify owners who show their trailers, please let me know by reply to this thread.

So, where does that leave Oliver owners participating in the "See an Oliver in Your Area" program?  Unprotected.

There are lots of interesting legal issues raised when an injury occurs while showing someone your Oliver.  Although these may fascinate the lawyers engaged to resolve a personal injury claim, no legal doctrine offers any real protection to the trailer owner.  This is because attorneys' fees are often the biggest expense associated with resolving the dispute, and in this country, even if you win, you get to pay your lawyer--which means a huge financial loss for you, period.  That is why contract language usually refers to both "defend" and "indemnify."  "Defend" means pay a lawyer to defend the claim.  "Indemnify" means pay any judgment rendered against you arising from the dispute.  So, regardless of:  (1) whether you are deemed to be affiliated with Oliver in some way, or (2) where or under what circumstances you show your Oliver,or (3) whether you require the prospective buyer to sign a heavy-handed liability release before setting foot in your trailer, there is presently only one "safe harbor" for anyone showing an Oliver to a prospective buyer:  umbrella insurance coverage.   Why?  Because it pays for your defense, as well as providing indemnity.

As noted in March, 2019 by Geronimo John, umbrella coverage is relatively inexpensive because it is secondary to your primary insurance policies.   Such a policy is designed to transcend, and provide coverage beyond, any limitations of your homeowners' insurance or your auto/RV insurance. 

So, should you show your Oliver to potential buyers, even though Oliver has not agreed to defend and indemnify you against claims arising from the showing?  I cannot recommend it. 

Maybe if enough owners decline to participate, Oliver will decide to "do the right thing" and provide defense and indemnification.   Until then:  do  you feel lucky?