This week’s guest, Julie Fershtman, is a VP/Shareholder of Foster Swift Collins Smith, PC, a law firm located in Michigan . Julie shared with us insights on the field of equine law. Julie is also the author of the, Equine Law Blog, highlighting much of the content from Fershtman’s more than 400 articles and three books. One of her websites is www.equinelaw.net.
Equine law is essentially any field of law that touches horses. It can be everything from Horses and Taxes to Regulatory Issues such as the recent controversy surrounding the challenge at the Kentucky Derby. Today’s conversation touched on three areas of law that Julie spends her time working on. These include: 1. Sales Disputes, 2. Liability Disputes, and 3. Insurance Disputes.
Sales disputes may arise when the parties contemplating the purchase and sale of a horse have failed to put that agreement in writing. Seems like a simple concept – if you are going to buy or sell something, get it in writing. Yet, when it comes to horses not everyone takes that advice. Julie suggested that all parties to a contract have legal representation and warned against do-it-yourself attempts to download a contract from the Internet. Each state will have its own nuances and requirements, such as Florida with its equine seller disclosure law. It’s best to have representation.
Liability disputes can occur when someone gets hurt in an equine-related activity. This could include a riding accident related to a lesson or pre-purchase ride or an organized group (like scouts) visiting an equine facility. Forty-eight (48) states have adopted some form of an equine activity liability law. The only states that don’t have these laws are California and Maryland. The state of Washington was the first to adopt such a law. Each state law varies in its language and requirements, so it is important to be aware of the provisions in the state where you live or plan to travel. With proper adherence to the law, liability for an equine related injury or death could potentially be avoided because of the dangers inherent in equine-related activities. A validly executed release form may provide protection for the horse owner, but the law can become complicated as to how they should be worded and how they work.
Considering all 48 states equine activity liability acts, six (6) exceptions can be found where an injured person might seek to impose liability. These exceptions, which are not found in all states, include:
Faulty tack or equipment
A dangerous latent condition on land for which no conspicuous warning sign is posted
Providing an equine but failing to make “reasonable and prudent efforts to determine the ability of a participant to safely manage the activity”
Gross negligence or willful or wanton misconduct
A negligent act or omission
Disputes related to equine mortality insurance have occurred. Equine insurance policies are roughly comparable to life insurance policies, with some major differences. Horses come in all shapes and sizes and participate in many different types of disciplines. Some horses are worth millions of dollars because of their training or breeding and others are priceless based on the love of their owners. Based on provisions commonly found in equine insurance policies, an insurance company might be justified in denying a claim if the horse owner fails to properly notify the company when the horse has becomes ill, has an injury, or dies. Giving insurance companies timely and proper notice can be complicated by the fact that some horse owners keep their horses in training or at boarding stables, where the horses are off-site and the owner might be unaware the horse is ill. Again, here’s where a contract can be important; it can impose notification responsibilities on the trainer or the boarding facility and provide contact information to do so.
We also touched on veterinary malpractice where an owner may have a claim because they believe their horse or other pet did not receive proper treatment and suffered an injury or died. Veterinary malpractice claims can be expensive and often the recovery, even if you win, is less than the amount spent to take the case to court. This doesn’t mean that legitimate cases shouldn’t be pursued but it is important to be aware of the potential costs of litigation versus the likelihood of recovery. Most state laws still consider our pets, including horses, to be personal property. Awards for pain and suffering and for emotional distress are the exception, not the rule, in animal-related cases.
Recovery in any kind of lawsuit is never guaranteed. The United States, unlike the United Kingdom, does not have the kind of legal system where winners of cases recover their attorneys’ fees from the non-winning (losing) party. In the United States, there are limited instances for the recovery of attorneys’ fees that include:
There is a contract that includes an attorneys’ fee provision, such as the loser pays
There is a state statute that awards attorneys’ fees to the winner in certain types of cases
A judge finds there was a frivolous claim or defense that entitles the other party to an award of attorneys’ fees
There’s a Rule of Court that awards attorneys’ fees to a party in the case
The hiring of a lawyer is an important decision, not to be made lightly. Seek out a person you are comfortable with that either has or can obtain the specialized knowledge you require for any animal law related case. Many experienced attorneys can offer flat fees for certain services, such as the drafting of contracts. Most attorneys charge for their services on an hourly basis and not on a contingent fee basis. Make sure you know how you will be charged and sign an engagement letter setting out the terms of the representation.
Equine law is a growing area of the law that touches almost every single aspect of the law. If you own horses, make sure to include them as part of your estate plan. Create a pet trust that nominates a forever Pet Caregiver and make sure you leave sufficient resources for their lifetime care. You can also talk to us at Animal Care Trust USA. We can help you create a Pet Trust and act as Pet Trustee.