Thank you to our loyal reader Carly who initially brought this news story to our attention.  A few weeks ago, Disney caught some heat for their response to a wrongful death lawsuit filed by a guest who died from a severe allergy while eating at a Disney Park.  Typically, we expect Disney to handle the matter internally or send out a generic statement such as: “Our deepest sympathies to the family and everyone impacted by this loss.  We do not comment on on-going litigation and will let the legal process play out”.  Instead, their response was nothing short of a dumpster fire – not only was it tone deaf, but it was legally dubious.

Their initial strategy with the lawsuit was to attempt to invoke a mandatory arbitration provision contained in a Disney+ online streaming membership, along with the actual theme park entrance ticket. The Disney+ “agreement” is what raised many eyebrows and initially caused every consumer to panic.  Would we, as consumers who simply agree to the EULA (end user license agreement) when using most software or electronics (iPhone, television, streaming services, basically anything electronic) be giving away our rights to something loosely related?  In this case, because someone agreed to a free trial of Disney+, Disney argued their use of a Disney park was subject to the same agreement for perpetuity.

Obviously, this was very troubling and the merits of this novel argument were never reached because Disney, once the full blowback hit, decided to waive their potential right to arbitration and let the process play out in the courtroom.  But make no mistake – if this had not hit the news, Disney would have sought to set the legal precedent that arbitration agreements in the EULA are valid, leading to a massive chilling effect on corporate accountability through lawsuits.

The other issue focuses on the ticket/”waiver” written on the back of just about any ticket a person sees or signs when attending a place like Disney where there may be inherently dangerous behavior or activities.  Those waivers in essence say the person, by buying the ticket or signing a waiver and continuing to use the service/product, waives away legal rights to sue or agrees to restrictive provisions such as mandatory arbitration.  These are known as contracts of adhesion – if you want to use the product, you have no choice but to sign.  They are effective at limiting rights of the customer, however, there are situations where courts will invalidate such a restrictive waiver: (1) if the harm inflicted was intentional or reckless/gross negligence (failure to use even slight care), (2) when there is a huge disparity in the bargaining power between the two parties, or (3) public interest.

While this story may have looked like “click bait” and bad press for Disney, it actually had far-reaching legal implications for consumers.  We are glad the family gets to move forward to seek justice and accountability through the courts, while preventing (at least in this instance) bad legal precedent for corporate malfeasance.

Insurance carriers are now adding ‘offset’ language to underinsured motorist coverage (UIM).  As we previously discussed, UIM coverage steps in under your auto insurance if the at-fault party does not have enough coverage for your damages.  The offset language can be in the fine print and many clients only realize it when they are in a collision and need their coverage, at which point it is too late.  The offset language allows the carrier to get a credit for whatever coverage the at fault party pays out in an injury case.For example, a policy may show underinsured motorist coverage of $50,000.  However, if there is an offset and the at-fault party has the state minimum of $25,000, the underinsured motorist coverage effectively drops to $25,000.  So the maximum recovery for an injured person would be $50,000, not the face value of all coverage of $75,000 ($25,000 from the at-fault party and then $50,000 for the underinsured coverage).

Another example is if the at-fault party has $50,000 in bodily injury coverage and our client has $50,000 underinsured motorist coverage.  In the past, this would have meant we have $100,000 in total available coverage.  If, however, the policy has the offset language, now the total coverage drops down to $50,000 total because the UIM coverage has been offset by the same coverage amount for the at-fault party.

This language can have a dramatic effect on the amount of recovery available to an injured person and most clients do not realize they are paying for coverage they may never be able to access.  It is critical to ask your insurance carrier if there is an offset on the underinsured coverage when purchasing your policy.  The most common carriers we found to have this language are Shelter, Farmers, and Traders, but more of the big carriers are adding it to their policy.

The easiest thing to do is simply purchase more insurance coverage.  Once a customer gets beyond the initial price of coverage, adding higher tiers of limits is relatively inexpensive.    Generally, we recommend $250,000 in coverage for bodily injury and underinsured coverage.  If you can, also add an umbrella policy but check to confirm UIM is also covered.  That is the coverage that is more important to you and your family so you are covered if something catastrophic happens.

Our usual January offer of a free insurance review stands all year long.  We are happy to do a free review of your insurance coverage (auto/home/umbrella) to make sure you are getting the best value and the correct coverage to protect you and your family should something happen.

Just for Fun: Hot Air Ballooning

From time to time, clients call and ask which type of cases we handle.  Our practice is built on referrals from satisfied clients.  We know that if we work hard and do a good job for our clients, they will tell their friends about us.  The best compliment from a former client is that client entrusting us with the potential case of their friend or family.  Our office specializes in the following cases:

1. Personal Injury (auto collisions, trucking, motorcycle, slip and fall, dog bites)
2. Work Injuries
3. Traffic tickets and DUI/DWI

If you know someone that meets these criteria, please have them call our office.  If someone does not quite fit the above criteria, please still have the prospective referral give us a call as we can usually help the person find the right attorney via a referral.