Considerations when drafting sports liability waivers

Understanding differences in provincial legislation surrounding liability waivers is an important consideration when drafting such documents, an executive underwriter tells Canadian Underwriter.

It’s crucial to understand the purpose of waivers, differences between provinces, and the interpretation of them during court cases, says Josie Van Ryswyck, executive underwriter at Markel Play, an insurance offering that combines coverages for sports organizations and participants.

“You should specify which province it’s being applied to, and then different provinces also look at who’s actually signing the waiver — is it the parent, is it the minor?” says Van Ryswyck. “There’s discussion about how much time do you have to read your waiver before you sign it and participate.

“These are things that we have learned at Markel through claims experience, but it helps…us learn and grow stronger from it,” she says.

As a national company, Markel has been able to develop its waiver expertise and the ability to partner with clients to help them improve their waiver language. The insurer has also partnered with Sport Law to create and refresh risk management procedures, such as those related to abuse or waivers.

“We’ve actually had some organizations who are participating in a parade, either during the holidays or Canada Day, and also didn’t know what to say or not to say in their parade waivers,” Van Ryswyck says. “And so, that’s where Sport Law has been very helpful, partnering with us to help create these…documents for them, and then it gives the clients a better sense of confidence that they’re able to carry out their functions.”

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The sports and special events space includes activities like concerts, festivals and sporting events, such as baseball tournaments and fundraising bicycling or walk-a-thons, for example.

The firm has seen a variety of ‘hot topics’ over the years, ranging from concussions and neurodegenerative injuries to abuse and questionable coaching practices. The sector is also seeing more social inflation in Canada; one example is poor coaching practices that have led to class-action lawsuits.

Commonly overlooked risks

There are also common risks that organizers and participants may overlook.

“When someone’s putting together an event, there’s so much that they have to think about,” Van Ryswyck says.

There’s different insurance options to consider, like sports participant coverage. This can take the form of a medical reimbursement for those who accidentally fracture their wrist or sprain their ankle, for example, and need to recoup some of their unexpected medical expenses. Or perhaps the coverage needs to be tailored to a specific facility owner, rather than a one-size-fits-all policy.

Van Ryswyck also encourages risk management, considering things like evacuation plans or even something as simple as a first aid tent.

“So that everybody is confident in knowing what the other person is doing…You just want to make sure that everybody has all their checks and balances in place and is confident being able to execute their responsibilities,” she says. “Really, your insurance claim is like your last resort.”

In terms of trends, Van Ryswyck says she’s seeing a lot of new entrants like MGAs into the sports and special event insurance market. “They’re looking to gain that competitive advantage through pricing.”

However, she encourages policyholders to consider the value of experience and infrastructure offered by insurance carriers. “At Markel, we’ve built deep expertise in both underwriting and claims handling,” she explains. “It’s important that policyholders not only understand what they’re purchasing, but also feel confident that — should a claim arise — they’re supported by a team with proven claims experience and the ability to respond appropriately.”

Jason Contant

Jason has been an award-winning journalist with Canadian Underwriter for more than a decade, including the past three years as associate editor and, before that, as digital editor for seven years.