AVSIG: Hold harmless and indemnification agreements wwswsigarch.jpg (7236 bytes)

✈ . . . . . . ✈ . . . . . ✈ . . . . ✈ . . . ✈ . . ✈ . ✈ . . ✈ . . . ✈ . . . . ✈ . . . . . ✈ . . . . . . Touch-and-Go to our Live Forum (This is a Read-only Archive of the 2004-2017 AVSIG Forum)


AVSIG Discussion Sections >> Training & Proficiency

Pages: 1
Dave Siciliano (ADS)
Top Gun


Reged: 05/17/04
Posts: 8469
Loc: ADS (Dallas, TX)
Hold harmless and indemnification agreements
      #436586 - 03/19/17 05:40 PM

Went to take some sim training today. Had gone yesterday to check it out; asked about things. Was told to bring pilot's cert, medical and proof of citizenship. Since I wasn't going for a new rating, I mentioned that proof of citizenship shouldn't be required. (I've attended recurrent more years than I like to relate, and they always ask and when I point to the regulation, they always waive). But, these folks said it was required and when TSA found they weren't asking, attorneys from there called and said they could have action taken against them if they didn't have it.
So, today, I go and bring passport and other docs and it's the first they show me required written agreements. One of which, you guessed it was a release of all claims/Indemnification agreement.
Both of the agreements were VERY broad. I routinely deal with these in my real estate development business and usually won't sign unless they are very narrow and elapse with time on the release. As I was reading, the lady there said: don't trip or fall while training :) Almost never sign an indemnity.
For those of you that haven't dealt with these, if one of these folks are sued for something that arises out of the operation of any aircraft in any capacity, aircraft checkout, flight training, pilot services, consulting, or any other service provided by the company, flight instructors, related entity, or any individual party, corporation, LLC or other entity, I personally agree to indemnify them.
I've seen these in action and they can be almost unlimited in nature and scope if someone sues. The indemnified party can hire the attorney of their choice and pretty much do whatever they think is reasonable to defend themselves without the regard to cost or the control one might normally have when they are paying the bill. They just send you the bill. What I've done in the past is kept adding language until the other party realized it was going to cost a lot, take a long time and have a frustrating experience trying to get that from me. They have always just dropped the requirement.
So, the school using this says it came from AOPA.
I just told them I was uncomfortable with how broad it was and courteously departed.
What are y'all doing when someone puts one of these in front of you?


Post Extras: Print Post   Remind Me!   Notify Moderator  
Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Hold harmless and indemnification agreements [Re: Dave Siciliano (ADS)]
      #436588 - 03/19/17 08:18 PM

Quote:

What are y'all doing when someone puts one of these in front of you?




Probably the first question is how badly do you need their services? In this case, I'm guessing you need theirs more then they need yours. That's not a recipe for a successful outcome.


Post Extras: Print Post   Remind Me!   Notify Moderator  
Scott Dyer [HPN/NY]
Top Gun


Reged: 01/11/03
Posts: 20065
Re: Hold harmless and indemnification agreements [Re: Dave Siciliano (ADS)]
      #436589 - 03/19/17 09:07 PM

Dave -- I generally will not sign broad indemnity agreements either. It's overlawyering, and an overreach, on the part of the schools (in your case), and we'll see more and more of this stuff unless the marketplace objects. When Icon tried similarly to include a broad indemnification clause in its sales contract the market revolted and the agreement, while still not exactly customer friendly, is better because of the revolt. Avidyne pulls that stuff, too, in its customer agreements for extended warranties, or at least they did for a while. That's one reason (but only one) why I didn't want a 540 and went with a GTN750.

--------------------
www.scottdyercfi.com


Post Extras: Print Post   Remind Me!   Notify Moderator  
Randy Sohn
Gradn Exlated Ordre of teh Fyling Fingres


Reged: 08/31/01
Posts: 23187
Loc: Savage, MN - U.S.A.
Re: Hold harmless and indemnification agreements [Re: Dave Siciliano (ADS)]
      #436590 - 03/19/17 09:19 PM

Quote:

seen these in action and they can be almost unlimited in nature and scope if someone sues




Dave, some have asked why I told them (feds/government) to (chuckle, you know that old invitation addressing where to stick it) and quit the NDPER biz and you've pretty well described it and my concerns

best, randy


Post Extras: Print Post   Remind Me!   Notify Moderator  
Ray Tackett
Top Gun


Reged: 04/30/04
Posts: 8892
Loc: Philadelphia, USA
Hold harmless and indemnification agreements [Re: Dave Siciliano (ADS)]
      #436591 - 03/19/17 09:25 PM

I don't sign the overbroad ones, either. At a minimum, I want to see
something like, "except willful or wanton negligence".

I think this is what lawyers do and have boilerplate this broad. A good
friend of mine got something similar when he had to accept his termination
T&C to get the severance package. That one had all the "hold harmless"
nonsense and, literally, "from the beginning of time".

I sold my parents' (then) thirty-year old house for about half the fair
market value to a friend who clerked in a law office. The place was an ugly
little fixer-upper and needed the rest of the fair market price to whip it
into shape. I told her that up front. She and her boyfriend knew perfectly
well what they were getting. I had taken them through at least twice,
pointing out all the problems I knew about, and offered to let them come back
with an inspector at any mutually convenient time before closing.

When it came time to sign an agreement of sale, one of her lawyer coworkers
wrote an ignorant piece of garbage which had me "warrant that the house is
completely free of defects ...". There ain't no thirty year old ticky-tacky
tract house which is free of defects. It had defects the day the builder
said "done" and had not gotten better since.

I demanded and got an "as-is" rewrite.

--------------------
Ray,

Owner, Lake Wood Be Gone

Turning quality lumber into sawdust and noise since 2013.


Post Extras: Print Post   Remind Me!   Notify Moderator  
Dave Siciliano (ADS)
Top Gun


Reged: 05/17/04
Posts: 8469
Loc: ADS (Dallas, TX)
Re: Hold harmless and indemnification agreements [Re: Ray Tackett]
      #436600 - 03/20/17 11:48 AM

When I was young and had little to lose, I just signed these. Now that I have some gray hair and assets, I think about how quickly this could get out of control and how I would have little recourse if they flubbed up and could be paying for their legal counsel even if their actions may have lead to the litigation. Also, I watch what my attorney does and pay close attention to billing. A third party may not even know how to do that and why would they spend time on it if their not paying?

Actually, I didn't need their service and politely left. My plane is in for phase inspections and I was looking to stay sharp on instrument procedures. I see a lot of business just rely on their attorney and not apply business judgement. It's a small business starting and I always hope new folks do well, but they have to learn to balance things.


Post Extras: Print Post   Remind Me!   Notify Moderator  
Richard Palm (PAO)
Top Gun


Reged: 04/30/04
Posts: 5388
Loc: PUDBY
Re: Hold harmless and indemnification agreements [Re: Dave Siciliano (ADS)]
      #436609 - 03/20/17 04:48 PM

At least a month after getting hired to play bassoon in a local opera production, they sent me a written contract that required me to indemnify them for whatever. I told them that I had never been asked to do that for any job, that I wasn't about to start, and that it was OK with me if they wanted to hire someone else, so they did.

That kind of thing really makes me appreciate union gigs.


Post Extras: Print Post   Remind Me!   Notify Moderator  
Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Hold harmless and indemnification agreements [Re: Richard Palm (PAO)]
      #436612 - 03/20/17 05:19 PM

Quote:

At least a month after getting hired to play bassoon in a local opera production, they sent me a written contract that required me to indemnify them for whatever.




I wonder if they were planning to bring in Cirque Acrobats?


Post Extras: Print Post   Remind Me!   Notify Moderator  
Reams Goodloe
Top Gun


Reged: 05/07/04
Posts: 2582
Loc: Kent, Washington
Re: Hold harmless and indemnification agreements [Re: Dave Siciliano (ADS)]
      #436657 - 03/21/17 02:30 PM

Dave -

If the situation allows, tell them that they must be responsible for their own negligence or intentional misconduct - and that they should represent and warrant that they have insurance to cover the same. I don't want to agree to hold a party harmless from their own negligence or intentional misconduct. Leads to interesting discussions, sometimes. Or, try to find an alternative provider.

Sometimes, there's not much choice, and I might calibrate whether any insurance I have covers most likely issues - umbrella insurance on homeowners, or aircraft rental insurance, for example. If not, I might try harder to find an alternative.

I've negotiated hundreds of such clauses in commercial equipment supply or turnkey project construction deals, and in such cases nearly always want to make sure parties are on the hook for their own negligence and misconduct, and defense thereof. The oil patch is a bit different, in many locales, as they often use a :knock-for-knock indemnity, where no matter what happens to you or your stuff, you take care of it, and vice versa. Not so bad of a risk equation with high value assets, but raises issues with worker's comp in many instances.

Anyway,the most common scenario is that such language is flagged as a complete defense after an otherwise proper wrongful death or serious injury claim. Viability of the language depends to a large extent on the situation and the state law governing the agreement, but they are more often upheld than not.

- Reams-


Post Extras: Print Post   Remind Me!   Notify Moderator  
Dave Siciliano (ADS)
Top Gun


Reged: 05/17/04
Posts: 8469
Loc: ADS (Dallas, TX)
Re: Hold harmless and indemnification agreements [Re: Reams Goodloe]
      #436661 - 03/21/17 03:56 PM

Thanks. As one poster said, if they ask me for it, I ask for the same thing back and tell them when either of us could put our name in either place, it may work for me :)
I usually just nit pick until they give up, but sometimes they have you in a one-sided position where you swallow hard or don't play.


Post Extras: Print Post   Remind Me!   Notify Moderator  
Pages: 1



Extra information
0 registered and 56 anonymous users are browsing this forum.

Moderator:  Mike Overly 

Print Topic

Forum Permissions
      You cannot start new topics
      You cannot reply to topics
      HTML is disabled
      UBBCode is enabled

Rating:
Topic views: 3368

Rate this topic

Jump to

Contact Us AVSIG

Powered by UBB.threads™ 6.5.5

Logout   Main Index    AVSIG Aviation Forum