Michael F. Bowman (mfbowman@CAPACCESS.ORG)
Mon, 2 Oct 1995 01:59:29 -0400
Though it has been awhile since you posted your questions, I though I'd
try to get at them at some point. Sorry for the delay. If I understand
correctly, you are in NCAC? What District? Where is your law practice?
I'm also an attorney - Navy Trial Attorney.
1) Is a Troop an unincorporated association for purposes of liability?
No. Every chartered unit is part of the corporation - BSA. Now if a
charter lapses due to a failure to file it on time and something happens,
that is a different kettle of fish.
2) Can a Troop be sued?
Anyone or any entity can be sued. However, BSA would intervene and most
likely succeed in being substituted as the proper party. This would be
in U.S. District Court most likely using diversity, value, etc. as basis
and forcing dismisal from the local (less sympathetic) court.
3) If suit is brought for personal injury caused by negligence, is every
> member of the Committee and every registered scouter affiliated with the Troop
> a potential defendant?
Anyone that gets up in the morning is a potential defendant. Sure an
attorney could name individual members. Again BSA would look at this to
see whether to defend and substitute itself. Negligence is a sticky
area, however. If alleged negligent act was also something the leader
did in violation of BSA rules, regs., and/or policy, then the leader is
on his/her own.
4) Is the Chartering Organization sued (rather than or in addition to, the
> Troop leadership)?
Sure they can be a defendant too. Most likely they will not stay in the
suit for long, unless . . . They are vulnerable, if they failed to vet a
leader and allowed a leader to be selected when a simple check would have
revealed past criminal history, child abuse, etc. and the leader has
committed another such crime. They can also be liable, if they learn of
a leaders misconduct and/or continuing negligence (e.g., not following
BSA rules - example allowing youth to use a chain saw) and then not doing
anything to correct the situation. In some cases they could have
liability, if they fail to remove a leader who is a problem. We had a
chartered organization fire an SM who was allowing hazing, etc. Right
answer. If they had allowed it to go on further, they would have been
> 5) Under what circumstances is the BSA sued (as opposed to the Troop, the
> Chartering Organization or the Troop leadership)?
BSA almost always steps in, even if not named a party, unless the act was
criminal or grossly negligent.
> 5) Who maintains insurance (BSA, Council, Chartering Organization) and who
> is covered by the insurance?
BSA has a master liability policy that covers claims above a certain
amount and up to several millions. Above this BSA is self-insuring. I
think the threshhold is at which their policy kicks in is fairly low, but
can't recall. Below the threshhold costs are covered by individual
liability policies. BSA picks up where these leave off.
> 6) Should the Troop maintain insurance?
Yes. BSA encourages units to have their own insurance and provides a
pamphlet on how this is to be done. Talk to your DE about getting one.
> 7) Can a Troop incorporate (as a nonstock corporation) so as to minimize
> cross-liability (in the event the Troop is considered an unincorporated
> association), or is that prohibited?
NO! The Troop has to abide by BSA rules and is part of that organization
under the ownership of the chartering organization.
> 8) Does anyone have a suggested disclaimer of liability clause which he
> feels effectively minimizes liability?
These things are widely used and mostly worthless. The only thing they
do is to create a sense of guilt in a parent that might reduce the chance
that a parent would sue. For years most courts have held that it is
against public policy to allow an advance waiver to hold a negligent
actor free from responsibility for his/her acts. Likewise there is some
caselaw out there that a parent can't waive a child's right to be free of
harm, negligence, etc. I've seen a case where a court-appointed guardian
ad litem brought suit on behalf of a child when the parent's waived
their rights, but couldn't effect waiver of the child's rights. Their
chief value is in the quantum phase of a suit, but not on liability.
Good to stave off punative expeditions.
> 9) Is a broad disclaimer of liability prudent when there is insurance
> available to cover negligence? For example, if Wife is injured in an
> automobile accident due to Husband's negligence, Wife will want to be able to
> sue (or file a claim against) her Husband (as nasty as that sounds) in order
> to recover from the Husband's insurance policy for medical expenses and pain
> and suffering. If Wife had signed a disclaimer, and if that disclaimer were
> effective, then the insurance company might be the ultimate beneficiary - and
> the wife would be stuck with the medical bills and no compensation for pain
> and suffering. You can apply this analogy to the scouting family rather
> Is there any responsible reference material on these questions? Is there a
> file which could be downloaded which addresses these matters?
> I know that some of you have personal experience. I saw one post reporting a
> $9,000 expenditure for legal fees for only peripheral involvement in scout
> related litigation, and another post about a $10,000 expenditure for a single
> deposition. I would think that, on the one hand, we would all like to
> minimize personal exposure and expense but, on the other hand, not deny the
> benefits of insurance coverage to someone who is injured through negligence.
> E-mail from: John M. Ballenger, 19-Sep-1995
Each Council, ours included, has a risk management committee headed by a
lawyer that helps Council set policy on these issues. When in doubt ask
your professional to go back to Council (the Scout Executive and his
General Counsel) to get an answer.
Speaking only for myself in the Scouting Spirit, Michael F. Bowman
DDC-Training, GW Dist. Nat Capital Area Council mfbowman@CAPACCESS.ORG
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City