Horse people are known storytellers. The more a story is told, the more “truth” it gathers in the telling. Myths are great fun around the campfire, but can lead to gross misunderstandings when applied to the real world. Let’s examine ten of the better known “myths” and subject them to the True/False test before they bite you in your log-sitting nether regions.
1. You can buy a horse on a handshake
ANSWER: It depends.
The determinative factor is the value of the horse or when the contract will be fully performed. All 50 states have adopted some form of the Uniform Commercial Code, which states that any contract for the sale of goods or services exceeding $500 in value, or which cannot be performed within in year, must be in writing to be enforceable. If a horse is sole for $500 or less, a handshake will do. If its value is $501 or higher, or if you’re selling on terms which extend final payment beyond one year, you’d better have a detailed contract which identifies the date, parties, horse sold with specificity, value, and any other details requiring contractual enforcement rights. Lacking same, either party may “rescind” the contract; i.e. negate it and return all parties to the position they occupied before the sale was made.
2. A trainer has authority to speak for the owner.
ANSWER: It depends.
This answer deals with the law of “agency”, with the trainer serving as the owner’s agent with powers specifically granted or limited by the owner. The extent of the trainer’s authority is typically set by contract; thus what does the boarding and training agreement say, or not say? There are many reported cases addressing parties’ misunderstanding as to where this authority begins and ends. The wise horse owner and trainer will discuss these parameters with all involved parties, including owner, trainer, veterinarian, farrier, and any other related parties, addressing worst case scenarios and confirming in writing the lines of authority granted from the owner to each of these agents. This document should then be reviewed and updated on an annual basis. If there are multiple owners, then one issue to be addressed up front is WHICH owner has the legal authority to direct action related to the horse, and grants of authority to third parties. Well defined lines of authority are essential elements to all boarding, training and medical treatment forms. Be sure to give this issue the attention it deserves, at a time when a crisis isn’t looming over your head.
3. You don’t need liability insurance with states having Equine Liability Act statutes
ANSWER: False.
To date, all states except California, New York and Maryland have some form of Equine Activity Liability Act statute allegedly protecting equine owners and professionals from frivolous lawsuits. While the statutes do have a positive impact, they do NOT prevent someone from suing you and thus do not negate the need to carry good liability insurance. Instead, the statutes serve as a statutory defense which can be argued – by lawyers to a court – to have a lawsuit dismissed on grounds of the statutory defense. This “argument” costs you money unless it’s covered by your insurance. Thus insurance plays an important role in allowing the insurance company to appoint an equine-experienced law firm to defend the insured, research the facts against the statutory defense, and if applicable, file an early motion to have the court dismiss the case on the basis of the EALA statutory defense and assumption of risk grounds incorporated in the statute.
Also, be aware that the EALA statutes vary widely state to state. Some states have very broad statutes which grant a high degree of legal protection, while other statutes’ contain various exceptions which often minimize the practical effect of the intended legal protections. Use of the statute, along with well drafted liability waivers and good liability insurance protection, will keep you sleeping well at night.
4. Your liability waiver isn’t worth the paper it’s written on
ANSWER: It depends.
Liability waivers are typically upheld by courts so long as the waivers are carefully drafted in line with applicable state law. To be enforceable, the waiver must: (i) correctly name all parties to be released, (ii) be signed by all persons granting that liability release, (iii) in clear and specific language specifically warn of the dangers and risks covered by the release, and (iv) use clear and unambiguous language indicating the releasing parties know they were waiving their right to sue for damages related to those identified risks. A well drafted liability release is typically the most important legal document available to a stable owner or trainer but should always be drafted by an equine lawyer in a format specific to your particular equine business risks and activities. Canned forms typically will not meet the Four Factor test outlined above, and will thus be legally invalid.
5. A dual agent in a horse sale does not have to disclose information to both parties
ANSWER: It depends.
This is a state specific inquiry. If an agent is handling the sale of a horse either destined to go into, or be sold out of, Florida, California or Kentucky, then a dual agent is subject to specific statutory disclosure and written contracts requirements that include:
- Disclosure of the dual agency
- The sales price of the horse
- The date of the sale
- Identity of all parties
- Relevant states of sale and interim or final destination
- The amount of commission being paid to the dual agent by each party, and
- Other specific statutory language which is state specific
Compliance failure may expose the dual agent to statutory fraud charges and punitive damages, so it’s important to research the required steps and ensure compliance on all sales.
For states other than Florida, Kentucky and California, no statutes require express disclosure but it remains a good business practice to avoid either party claiming self-dealing or less than full disclosure by the agent. Remember, any time a single individual is representing parties with different interests, it creates the appearance of conflict of interest which can compromise the apparent integrity of the party involved. Thus even for those states outside Florida, California and Kentucky, full disclosure is the recommended way to go for ALL dual agents, and is legally mandated when involving these three states.
6. Your homeowners insurance covers horse related injuries
ANSWER: It depends.
The relevant factors here are whether the claim arose out of a personal exposure (typically covered), or a business exposure (typically not covered). Thus a homeowner who keeps a horse on her property may have homeowner’s coverage for injury of a friend who was accidentally kicked by the horse while on the property. But let’s change the facts up a bit. What if that friend was bartering horse care and stall cleaning services for you while you’re out of town, in return for being given permission to ride your horse? You’ve now entered into a barter arrangement which has reciprocal benefits and a potential “employment” character to the transaction. This in turn may create an apparent business relationship which is expressly excluded under a homeowner’s policy and thus would be a non-covered event.
The more clear cut the business aspect of the deal, the less likely coverage applies. Don’t guess on these issues. Give your agent a call and specifically discuss your coverages in light of expected activities on your property. Insurance is always money well spent. You’ll be particularly grateful if you’re ever sued!
7. Your automobile insurance covers trailer-related damages
ANSWER: It depends.
Again, this is a highly complicated issue and very fact specific as to the details of your auto policy, as well as how and why you’re pulling a trailer, what’s in the trailer, who or what is damaged, and was there additional insurance coverage on: (a) the horse trailer; (b) its contents, including horse, tack and other belongings, and (c) whether the transport was for business or pleasure. This is another situation where you don’t want to guess. Pick up the phone and talk to your agent. Discuss all the hauling situations you anticipate and whether your current coverages will apply to: (a) vehicular damage; (b) personal injury to all parties involved; (c) property damage including the horse(s) hauled and personal property in either the trailer or the vehicle towing the trailer. This is also a situation where a liability waiver can prove invaluable in defining the parties’ expectations and limiting your liability exposure.
8. If you’re towing a horse trailer weighing over 10,000 pounds, you must have a Commercial Driver’s License.
ANSWER: True.
This may be the most discussed topic in 2018. The regulations aren’t new; they’ve been around under Department of Transportation Rules Part 390 for years. We horse people have just gotten away with ignoring them for the most part. The enforcement attention is what’s new – as it’s now being applied to commercial and non-commercial horse transportation and all of those many situations in-between.
In summary, the regulations provide a CDL (commercial driver’s license) IS required for any combination of vehicles with a gross combined weight rating (GCWR) of 26,001 or more pounds, providing that gross vehicle weight rating (GVWR) of the vehicle being towed is more than 10,000 pounds. But the definitions of “commercial”, “pleasure”, “GCWR”, and GWVR can be confusing. For instance, GCWR is defined as the value specified by the commercial motor vehicle manufacturer, and NOT the loaded weights from the bill of lading or the scaled weight of the vehicle. In addition, if the vehicle towing the trailer is used for “commercial” purposes; i.e. for activities that generate a tax reportable profit, then you additionally may need to secure a DOT identification number for the truck, AND comply with new ELD (electronic logging device) regulations concerning reporting of mileage and mandatory rest breaks at regular intervals.
Understand this issue remains in flux, with the American Horse Council working with Department of Transportation officials to clarify ambiguities before harsh enforcement actions are implemented. Thus the majority of states, EXCEPT FOR IOWA, are being somewhat lenient in enforcement until these clarifications are handed down from Washington DC. Take some time to review the American Horse Council site addressing new developments in this area, as well as an Agricultural Exemption Waiver which applies through June 2018, and may be extended further should the clarifications be ongoing. See: http://www.horsecouncil.org/eld-mandate-cdl-requirements/
9. Your farm doesn’t need to carry workers compensation insurance
ANSWER: It depends.
Many stable owners mistakenly believe they do NOT need workers compensation insurance under their state’s agricultural exemption. However, this is no longer the case. In the majority of states, courts have recognized distinctions between “service” establishments; i.e. horse boarding and training/lesson barns, and “agricultural” establishments, which focus on livestock breeding or crop raising activities. The latter receives the agricultural exemption; the former does not. To further complicate matters, many horse stables are hybrids, where they are breeding and raising foal and grain/hay crops, in conjunction with training and lesson programs. So how do they analyze their status?
Again, the court decisions indicate the “status” will depend upon the nature of the work performed at the time of the accident. Thus if a worker was engaged in a breeding or crop raising activity, the exemption applies. Conversely, if the same worker was injured cleaning stalls for boarded horses or tacking a horse up for a lesson, the exemption would NOT apply. Finally, all businesses are excused from workers compensation requirements so long as the combined payroll of the business for ALL of its workers, including barter, is less than $20,000 per year.
Not sure how this impacts your business? Contact a workers compensation specialist or the state Workers Compensation Bureau if you’re uncertain.
10. Your workers are “independent contractors” if you call them that
ANSWER: False
The majority of equine establishments utilize “independent contractors” for barn labor, trainers, instructors and the like. The purpose for using “independent contractor” status is the avoidance of extra expenses associated with payroll recordkeeping, overtime, benefits, and workers compensation coverage. The stable owner mistakenly believes by labelling an “employee” an “independent contractor”, they can contractually agree to that legal status to avoid the extra expenses. WRONG!
The independent contractor status is subject to judicial review upon claim by any party. If a worker is controlled by the owner as to hours, means and methods of the skill set or services he or she provides, that individual is deemed an “employee” subject to all of the Fair Labor Standards and minimum wage / overtime wage hour requirements. Thus if one of your workers asserts a Department of Labor complaint against you for regular and overtime hours, you can’t defend on the basis he or she was an “independent contractor” if you essentially controlled the aspects of the services provided. Disproving employee status can be difficult where many barn owners did not keep detailed records working either for or against their interests. Guess wrong, and the stable owner can find themselves facing a stiff penalty from Department of Labor including regular and overtime unpaid hours plus regular and penalty interest on the unpaid sums.
Thus if you’re currently utilizing “independent contractor” arguments to avoid wage and benefit payments, be sure to seek the advice of a professional to ensure you’re not unintentionally creating greater exposures for your business down the road.
Summary:
In summary, while we all enjoy a good yarn or two, don’t let these equine myths lull you into a false sense of complacency. If you recognize some or all of these exposures as being present in your business, take a minute to visit with a local equine attorney, insurance specialist, or governmental representative. Remember – while myths may be entertaining, they’re not always true. Research the applicable treatments in your state, and remember that being forewarned is forearmed.
© Denise E. Farris. (June, 2018). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].
DISCLAIMER
This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional in your state should be sought. The publisher and editor shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.
