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Sports & EventsIts all fun and games until somebody gets hurt!Presented by Samantha Ip, Jennifer Loeband David Buxton-Forman Insurance Institute of British ColumbiaMarch 15, 2016

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Its all Fun and Games until

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Talk about the different types of things that can go wrong:

Some from the news the last few years:

Fires at nightclubsPeople injured on the floor at concertsCollapsing stagesDrunk guys falling on the person sitting next to them at Justin Timberlake concerts

Then go onto next slide to give some specific examples2

Bluesfest Ottawa, 2011

Picture of collapsed Radiohead stage in Downsview park in Toronto in 2012. The stage was being set up for a show that night, a drum technician was killed and 3 others injured. 13 charges under the Occupational Health and Safety Act by the Ontario Ministry of Labour against LiveNation Canada, LiveNation Ontario and Optex Staging and Services.

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Radiohead Toronto, 2012

Three people were injured when the stage came down in2011. None of the musicians in Cheap Trick were hurt.A truck driverand other band employees areamong those suing; the driver saidhe was injured by a falling stage fixture.5

Alexisonfire Vancouver Olympics 2010

19 people were injured (9 sent to hospital) when the crowd rushed the stage, knocking over the barricade. Band forced to cancel the show after 1 song. Believed at least 3 lawsuits teenager Ashley Daniel sued LiveNation, City of Vancouver, Premier Global Production, Sensor Protection Group, John Does couldnt find anything so assume dropped or settled6

Starfield Abbottsford, 2008

Issues ArisingWho is potentially liable?Do those potentially liable parties each have insurance coverage? Is there overlapping coverage?Is the same risk insured?Is it the same interest insured?Is it the same insured?How is liability shared?

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Potential ActsWho may be liable?The venueThe entertainment actSecurityConcession (especially if serving alcohol)Promotor9

The reality is, the bigger the incident, the more parties are going to be involved.9

Potential Acts10

Add screen shot for NOCC here to demonstrate possibilities

Can talk about the different parties named Disney, Touchstone, James Cameron, Jon Voigt. And the fact that plaintiff actually went into the studios in LA and attempted to personally serve the individual parties as though James Cameron sits in a cubicle at Paramount10

Potential ActsMost of the potential parties will have insurance in placeGeneral or commercial liability policiesOften agreement between parties to obtain insurance and name other parties as additional insuredsDisputes commonly arise over question of whether a party is an additional insured for a particular lossLimitation of coverage for additional insuredLiability arising out of Named Insureds operations

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Generally find that most parties are insured in these circumstances.

For the sake of our example:all parties have independent liability insurance; howeverPromotor and venue owners entered into an agreement whereby the promotor is required to hold sufficient liability insurance and add venue owner as additional insured to its policy

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Overlapping CoverageDifferent parties take out insurance over the same interest and riskVenue owners and artists typically insured under promotors liability policyWhere an insured holds more than one policy covering the same risk, the insured is entitled to select the policy to respond, subject to conditions in the various policies12Solo or Group Act

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Overlapping CoverageThe conditions to be met:Same subject matterSame perilSame insuredPolicies are legally valid and in force at time of lossNo exclusion for contributionInsureds recovery still limited to amount of loss

13Solo or Group Act

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Is the same risk insured?Lumbermens Underwriting Alliance v Axa Pacific Insurance, 2006 BCSC 957Forest fire caused by a logging companyLogging company was covered by 2 insurance policiesSpent $1.5 million on fire suppressionLumbermens claim for contribution from Axa failed because their policies insured different risksLumbermens policy covered fire-fighting costsAxas policy only covered third-party claims against the insured, and the insured was not found legally liable for the fire

Not at issue in Starfield case agreed that the risk was covered under all policies

Logging company was not found liable for the fire because evidence was unable to establish the specific act or omission that caused the fire, though the contractor was the only one operating in the areaSee p 3 of Nigels paper14

Is the same interest insured?Clarke v. FidelityPhoenix Fire Insurance Co. of New York [1925] OJ No 144 (CA)House destroyed by fireHomeowner and Mortgage Lender separately insured their interests in the houseCourt held there was no overlapping coverage:Homeowners insured interest was as an owner in possessionMortgage Lenders insured interest was as a holder of security to indemnify losses on the loanThe mortgagors insurer covered the entire loss

Not at issue in Starfield case

Simplify titles to homeowner and mortgage lender or similar?15

Primary vs. Excess CoveragePrimary triggered immediately on occurrenceExcess triggered when limits under primary policy exhaustedLook to policy wording to determine whether policy is primary or excess. This insurance is excess over any other primary insurance available to you covering liability for damages arising out of the premises or operationsfor which you have been added as an additional insured by attachment of an endorsement

16Whos the Headliner?

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Common law methods for apportionment between co-primary insurersMaximum liability methodContribution based on proportion of individual coverage limit to total coverage limitMay be limited to concurrent property damage insurance Independent liability methodEqual contribution until lower limit is exhaustedUsed in cases of overlapping liability coverage

17Whos the Headliner?

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Other Insurance ClausesLimit or exclude the insurers liability to indemnify or contribute where other insurance policies cover the same riskTypically 4 types:Pro Rata clausesExcess clausesEscape clausesExcess escape clauses

18Whos the Headliner?

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Pro Rata ClausesCoverage is limited to a rateable portionUsually employ either common law methodExample:If the insured has other insurance against liability of loss covered by this policy, the insurer shall not be liable for a greater proportion of such liability or loss than the applicable limit of liability bears to the total applicable limit of liability of all collectible insurance against such liability or loss19Whos the Headliner?

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Excess ClausesPolicy becomes excess in the event of overlapping coverageExample:If there is other insurance against a loss covered under this policy, the insurance provided under this policy shall be excess insurance over any other valid collectible insurance20Whos the Headliner?

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Whos the Headliner?Starfield CaseArtist and Venues policy found to be excess to promoters policyBoth policies had excess clauses:This insurance is excess over:. . . . .(2) Any other primary insurance available to you covering liability for damages arising out of the premises or operations or "products-completed operations hazard"for which you have been added as an additional insured by attachment of an endorsement

Neither policies were true excess policies both were primary policies by default, but became excess policies by operation of the excess clause

The court found the clauses to be unambiguous, and that the certificates of insurance were equal to an endorsement:Jones Deslauriers' practice of issuing additional insured certificates to the conference (Venue) and Starfield was the equivalent of adding those parties to the Unite (Promoter) policy by endorsement. (para 60)21

Escape ClausesEliminates coverage where loss is covered by any other insuranceExample:If any personother than the insuredis also covered by other valid and collectable insurance, such other personshall not be indemnified under this policy22Whos the Headliner?

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Excess Escape ClausesCoverage is provided in excess to all other insuranceEffectively acts as a top-up if the policy limits are in exceeds the limits of other valid insurance23Whos the Headliner?

The Policy containing the excess escape clause responds, up to that policys coverage limit, where the loss exceeds the limits of liability of all other policies.

Example:

If other valid insurance exists protecting the insured from liability for such bodily injurythis policy shall be null and void with respect to such specific hazard otherwise covered, whether the insured is specifically named in such other policy or not; provided, however, that if the applicable limit of liability of this policy exceeds the applicable limit of liability of such other valid insurance, then this policy shall apply as excess insurance against such hazard in an amount equal to the applicable limit of liability of this policy minus the applicable limit of liability of such other valid insurance

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Other Insurance clauses are not binding on other insurersConflict between other insurance clauses is commonTwo step approach to resolutionFirst, attempt to reconcile the competing clausesSecond, if there is a true impasse, clauses are rendered inoperable and common law methods apply24Battle of the Bands

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EncoreKey Takeaways:When underwriting policies covering entertainment events, insurers should recognize the potential risk of:ancillary litigation between insurers with respect to coverageits coverage extending to multiple additional insuredscoverage being apportioned in a method not envisioned under the its policy25

The Dark Side of Sports

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Marty McSorley of the Boston Bruins strikes an unassuming Vancouver Canuck, Donald Brashear, on the side of the head with his hockey stick. Brashear immediately fell to the ice and suffered a serious concussion.

Brashear would eventually recover and return to professional hockey, but still does not recollect the incident.

McSorley is found guilty of assault with a weapon and received an 18-month conditional discharge.

Brashear never filed suit against McSorley for his injury.27

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Mike Tyson biting Evander Holifields ear28

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In 2008, Colorado Avalanche rookie Steve Moore body checks Vancouver Canucks captain Markus Naslund in an open-ice hit. Naslund suffers a concussion. After the game, Canucks players are quoted as saying there was a bounty on Moores head.

Later that same NHL season, Canucks forward Todd Bertuzzi grabs Moore from behind and punches Moore in the head, falling on top of him as the two fell to the ice. Moore suffered a concussion, three fractured vertebrae and an end to his budding NHL career.29

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Issues Arising1.Overlapping Coverage Who Pays?

2.Defences to Liability

3.Duty to Defend and Intentional Acts

3.Multi-Party Settlement Agreement Disclosure

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The Starting Lineup Who will pay?

Players?

Coaches?

The League?

Sponsors?

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This will be the same list of potentially liable parties whether its a participant or a spectator injured.

Talk about recent incident of puck thrown into crowd hitting and knocking unconscious one month old baby.32

The Starting Lineup - PlayersThe individual who caused the incident that resulted in an injury is the most obvious potentially at-fault party.This raised the defence of volenti non fit injuria33

Legal defence that no wrong is done to a person who consents to being injuredIs a complete defence to a claim and precludes recovery notwithstanding negligence on the part of the defendant.Burden of proving all elements of the defence falls on the defendantThe defence is approached with judicial caution:The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such as the present, only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to.Common sense dictates that only rarely will a plaintiff genuinely consent to accept the risk of the defendant's negligence. (Dube v Labar, [1986] 1 S.C.R. 649 at 6 7

34Volenti Non Fit Injuria

Only applies in situations where the plaintiff has assumed both the physical and legal risk involved in the activitiy34

The two distinct aspects of the Volenti doctrineVoluntary assumption of risk as a defence Defence of consent available in negligence actions.As a defence, it operates after the breach of duty has been shown.Must show that the plaintiff voluntarily participated knowing the risk and agreed to give up a cause of action.Voluntary acceptance of the risk may be express or implied.Inherent risks in sport:If an injury results from a normal or expected part of a sport, then no liability will arise. Inherent risk influences the standard of care.These are more properly considered accidently caused injuries as opposed to negligently caused injuries.The value of sports derives from their inherent conflict, speed, exertion and physical contact. The occasional accident is the price paid by player or spectator for the benefits of sports.

35Volenti Non Fit Injuria

Agar v Canning, [1965] M.J. No. 24 (MBQB)The plaintiff and defendant were on opposing teams in an ice hockey game.

The plaintiff attempted to delay the defendant by hooking him with his stick. His stick delivered, what appears to have been, a relatively minor blow to the back of the defendant.

The defendant stopped, turned, took his stick with both his hands and struck the plaintiff in the face rendering the plaintiff unconscious.

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Agar v Canning continuedHockey necessarily involves violent bodily contact and blows from the puck and hockey sticks. A person who engages in this sport must be assumed to accept the risk of accidental harm and to waive any claim he would have apart from the game for trespass to his person in return for enjoying a corresponding immunity with respect to other players.But injuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game, should not fall within the scope of the implied consent. The defendant was found liable, but the Court that the plaintiff had provoked the defendant, and his damages were reduced accordingly.37Volenti Non Fit Injuria

The courts decision is couched in the terms of the language of the volenti defence (eg. assumed to accept the risk..).

The act of intentionally striking the plaintiff in the face with a hockey stick was not a risk any player would have assumed.

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The Starting Lineup - CoachesA coach may also be a potential at-fault party depending on the circumstances of the incident that caused the alleged injury.If the coaches actions can be said to have condoned the behaviour that resulted in the alleged injury, he/she may be added to any resulting lawsuit.38

Bertuzzi.

Age of participants may have impact on this.38

The CoachOlinksi v. Johnson, [1992] O. J. No. 2398At the end of a lacarosse game two referees were assaulted by players of the Six Nations Arrows lacrosse team as well as several spectators.The assaulting individuals, the manager, the band council, the lacrosse association, and the coach were all named as defendants in the resulting lawsuit.39

This case also demonstrates how the players, coaches, and league can be sued and held liable for injuries caused to people outside the confines of the game itself.39

The CoachThe court considered the following actions by the coach:He saw a suspended player lingering by the exit at the end of the game and did nothing;He did nothing when lacrosse balls and water bottles being thrown at the referees from his teams bench during the game; andCommented to his team that he thought one of the referees was not good.Witnesses stated that the Coach did not appear to have control of his team on the night in question.40

The CoachThe Coach was found to be an occupier under the Occupiers Liability Act, because he was a person who [was] in physical possession of the premises on the day in question.The Court held that the Coach breached his duty as an occupier to ensure that the premises were reasonably safe through his failure to control his team.41

Of note, this case also includes claims against spectators who were involved in the assault.41

The Starting Lineup LeagueDepending on the nature of the incident, the league that sanctioned the sporting event may be sued by the injured party. 42

Levita v Crew, [2015] O.J. No. 4559 (ONSC) Levita was injured in a recreational non-contact ice hockey game when Crew, a player on the opposing team, collided with him shortly after Levita had taken a shot on goal.Players in the league, True North, signed a waiver before every game.Crew was sued for intentionally and/or recklessly contacting Lewis.True North was sued for failing to protect other players from Crew an allegedly dangerous player.The court recognized that the standard of care may be modified by the inherent risk in an activity.In hockey or basketball, for example, players have to assume some risk of injury from bodily contact, even contact intentionally inflicted or in breach of the rules of the game. A body check -- even one that calls for a penalty -- or contact fighting for a rebound in which the opposing player is called for a foul is part of the ordinary risk of each game. Conduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play. (citing Laskin J.(dissenting on other grounds) in Kempf v Nguyen, 2015 ONCA 114 at 106)43The League

Levita v Crew continuedSo what risks is a hockey player held to assume?That injuries may occur in the regular course of play;That injuries may occur through acts that begin when the game is on but cause injury outside the course of play; andThat injuries may occur from acts that are in contravention of a rule but are not intended to cause injury;The degree of risk a player assumes can also be assessed in light of the type of league and the style of play that normally takes place in the leagueWhat risks does a hockey player NEVER assume?That injuries may occur through intentional or reckless battery by another player in a non-contact league. (at 92)44The League

Levita v Crew continuedLevita was found to have assumed the risk of intentional contact in a non-contact league because Levita knew intentional contact, even that which resulted in an infraction of the rules, was a risk inherent in the particular activity that he participated in The court found that Crew did not breach his standard of care by intentionally contacting Levita and, therefore, he was not negligentBecause there was no negligence, the volenti defence did not apply. But the court remarked that if the defence could apply, it would have operated in favour of True North and Crew. Levitas act of signing a waiver and his awareness of the physical and legal risks involved in playing in the True North league were sufficient for him to have expressly and impliedly consented to those risks.45The League

Corporate sponsors may also find themselves liable.46And Now a Word from the Sponsor

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The plaintiff was rendered a paraplegic while participating in an indoor soccer league game organized by the Ontario Soccer Association (OSA). The plaintiff issued a claim against the defendant sponsors for $4,500,000The plaintiff also pursued claims against the OSA, the facility owner, other players and the refereesThe plaintiff alleged that the OSA sponsors breached their duty to ensure the OSA had adequate insurance in place.

47Boudreau v Bank of Montreal, 2012 ONSC 3965

The Sponsor

This brings up issue that the severity of the injuries will have an impact on the claim itself in terms of potentially defendants.47

Boudreau v Bank of Montreal, continuedThe issueis whether a company which provides products or funds to a soccer organization through a sponsorship role can have a legal duty to an individual player to inquire into the nature and terms of any insurance policy which the soccer organization may have purchased for the benefit of the soccer players, and to ensure that the amount of such insurance is adequate.The sponsors were found to have no duty of care towards the injured player. Sponsors were said to be in the same position as any other individual who buys advertising space in a magazine or on television. As a result, there is no legal foundation for suggesting that a person purchasing such a right to publicize a product, is legally responsible for the consequences of the activity with which it associates its name.

48The Sponsor

This obviously seems like a rational, judicious decision; however 48

Chen (Guardien ad Litem) v Jose Navarez (the), 2003 BCSC 996 A boating accident claimed several lives on the night of the Symphony of Fire fireworks display in Vancouver port. A pleasure craft had collided with a tug boat and barge. The defendant owner of the tug boat and barge added the sponsors of the fireworks as third parties.Did the sponsors owe a duty of care? If there was a duty, did they breach the standard of care?49The Sponsor Part II

Chen (Guardien ad Litem) v Jose Navarez (the), 2003 BCSC 996 The sponsors were alleged to have failed to take precautions to minimize the risk to vessels operating in English Bay on the night of the show.the Sponsors assumed a duty of care to the boaters attending the fireworks display.BUT, the sponsors, in deferring to the authorities they regarded as experts on the issue of marine safety (Vancouver Port Authority, the Coast Guard, the Vancouver Lifeguard, Vancouver Parks Board and Vancouver Marine Policy), were not negligent.The takeaway Sponsors may owe a duty of care to participants where the sponsors participate in the organization of the event and are not mere financial contributors for advertising purposes.

50The Sponsor Part II

Who has to Carry the Ball?Now that all of the possible at-fault parties have been identified, what insurance issues arise?51

Claims normally raise potential of assault which is unlikely to be covered under a policy51

An insurer has a duty to defend a claim against its insured where the facts alleged in the pleadings, if proven true, would require the insurer to indemnify the insured for the claim.The duty to defend is broader than the duty to indemnify. In essence, an insurer may have a duty to defend while not having any obligation to indemnify the insured.Three step process to determine whether there is a duty to defend:1.Are the legal allegations properly pleaded?2.Are the claims derivative of another claim?3.Can a properly pleaded, non-derivative claim, potentially trigger the duty to defend?52The Duty to Defend

Where a claim pleads both negligence and an intentional tort, such as battery or assault is there a duty to defend?The Supreme Court of Canada has said that [i]f both the negligence and intentional tort claims arise from the same actions and cause the same harm, the negligence claim is derivative, and it will be subsumed into the intentional tort for the purposes of the exclusion clause analysis. (Non-Marine Underwriters, Lloyds of London v Scalera, [2000] 1 S.C.R. 551 at 85)53The Duty to Defend

This is the most common way to plead this type of case specifically for the purpose of attempting to get insurance monies.53

Thorne v. Royal & Sun Alliance Insurance Co. of Canada, 2003 NBCA 61 During a recreational ice hockey game, the defendant, without warning, punched the plaintiff in the face, breaking his cheekbone and causing other injuries.The plaintiffs Statement of Claim alleged his injuries resulted from both the intentional acts and negligence of the defendant.The defendant was insured under the standard Insurance Bureau of Canada Commercial General Liability policy.On these facts alone, there would typically be no duty to defend because the allegations of negligence were entirely derivative from the alleged intentional act of punching the plaintiff.54The Duty to Defend

Thorne continuedBUT, the defendant filed an affidavit in support of his application for an order that the insurer had a duty to defend where he stated that he threw the single punch in self-defence.The CGL policy applied to an accident or occurrence and contained the following self-defence exclusion:This insurance does not apply to:(a)"bodily injury" or "property damage" expected or intended from the standpoint of the Insured. This exclusion does not apply to "bodily injury" resulting from the use of reasonable force to protect persons or property.

55The Duty to Defend

Thorne continuedThe effect of the self-defence exception was clear: the insurer must defend any action against the insured seeking compensatory damages for bodily injuries resulting from his or her use of reasonable force to protect persons or property.The expressions accident and occurrence in the Insuring Agreement must be interpreted in light of the intention of the self-defence exceptionThe court went on to comment that, despite there being a duty to defend, a duty to indemnify could not arise due to the practical realities of the situation.That is so for two reasons. First, indemnity appears to be out of the question; if Mr. Thorne acted in justifiable self-defence, Mr. Milligan's action will likely be dismissed; if Mr. Thorne did not, [the intentional act exclusion] would appear to be engaged.56The Duty to Defend

From the SidelinesFrom an insurance perspective what are the key things to consider:A variety of parties may be liable, and more importantly, may be sued as a result of an incident at such an event;The insurer will more than likely have a duty to defend in the circumstances;The defence of volenti may prevent an injured participant from collecting.

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Go through all different parties that may be sued this will be the case whether injured participant, or injured spectator list likely includes parties you would have thought would be too far removed from the incident itself.

If intentional tort, person who committed tort is unlikely to be covered by his/her insurance policy but insurer will likely still have to defend.57

Multi-party Settlement Agreements and the Extent of Disclosure58

To conclude want to give an update on an issue that we have presented on previously58

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Highlights to mention:

Took 10 years to reach this settlement!The matter was not actually concluded; andWere the terms of the settlement subject to a non-disclosure agreement?59

Back to BertuzziBertuzzi pleaded guilty to criminal assault causing bodily harm. He was sentenced to one year probation and 80 hours of community service.Moore and his family sued Bertuzzi, and the former parent company of the Canucks, Orca BayBertuzzi, Orca Bay and third parties reached a settlement agreement on apportioning the liability for Moores injuriesIn 2014, a confidential settlement was reached.

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Moore v Bertuzzi, 2012 ONSC 597The third party claim against coach Marc Crawford and all cross claims between Bertuzzi and Orca Bay were discontinued as the three parties entered into a proportional sharing agreement. That agreement apportioned liability between the parties regardless of how liability would be assessed at trial.The agreement was considered something like a Mary Carter AgreementThe plaintiff was not informed of the terms of the agreement, nor even its existence. When he became aware of its existence, he brought a motion to compel its production.

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Settlement Terms

IssuesThe issues before the court were simply whether the proportional sharing agreement should be produced and whether it should be produced in its entirety.In order to determine these issues, the court considered whether settlement privilege was a class privilege or a case-by-case privilege.If class privilege onus for proving why a settlement agreement should be produced would be on the party seeking its productionIf case-by-case privilege onus is on the party opposing production to show why it should remain privileged

62Settlement Terms

The court did not answer the question of whether settlement privilege was a class privilege or a case-by-case privilege.The agreement was ordered to be produced.The reason for production? the agreement had changed the landscape of the litigation:It ended adversity between the defendants and a third party;It changed their relationship from that set out in the pleadings; It would affect the running of the trial and pre-trial procedures; and It pre-determined how liability would be allocated.Therefore, if a settlement agreement changes the landscape of litigation, it may have to be disclosed.

63Settlement Terms

Does the Bertuzzi Decision Still Stand?Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37Sable sued multiple defendants who had supplied it with paint intended to prevent corrosion of its offshore structures and onshore facilitiesSable entered into a Pierringer Agreement with some, but not all, of the defendantsThe Pierringer agreement allowed one or more defendants to settle with the plaintiff, leaving the remaining defendants responsible only for the loss they actually causedThe terms of the Pierringer Agreements were disclosed to the non-settling defendants except for the actual settlement amounts

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The purpose of settlement privilege is to promote settlement. The privilege wraps a protective veil around the efforts parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible.

Since the negotiated amount is a key component of the "content of successful negotiations", reflecting the admissions, offers, and compromises made in the course of negotiations, it too is protected by the privilege.65Sable Offshore Energy Inc. continued

Exceptions to privilege do exist.To come within those exceptions, the defendant must show that a competing public interest outweighs the public interest in encouraging settlement.Satisfactory counterveiling interests have been found to include misrepresentation, fraud and undue influence.There is no prejudice to the non-settling defendants by withholding the amounts of the settlement that is sufficient to outweighing the public interest in promoting settlements.

66Sable Offshore Energy Inc. continued

Samantha IpJennifer LoebDavid Buxton-Forman

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