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Accidents Happen… Often, Preparing for Them Does Not
Monday, November 1, 2010 - By Chris E. Wittstruck, Esq.

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Chris
Wittstruck
With all due respect for Benjamin Franklin’s proverbial “ounce of prevention,” no measure of prudence or caution can avert every accident. So while approaching all situations with forethought about potential consequences is a very good thing, it just isn’t enough. When the dust settles after the unforeseen or unavoidable occur, even a ton of preventative measures employed before the incident is suddenly rendered wholly irrelevant.

Thankfully, in harness racing serious accidents are fairly rare. Considering the progression of horses, humans and bulky wheeled equipment accelerating around tight turns, it’s a wonder mishaps are so few and far between. Of course, we can credit that to the skilled professionals who train and drive, to those that develop safer and safer equipment and ovals, and to the regulators who are duty-charged to protect participants, both man and equine. Still in all, when injuries do occur, the discussion turns to economically safeguarding the victim and family. Unfortunately, by then the discussion is much too late. The reason lies in how the law views our industry.

Basic principles of negligence law in America provide that an individual is liable for failure to protect those for which he or she had a duty of care to protect, and for which failure to fulfill that duty was the proximate cause of injury. Stated simply, if “A,” traveling 30 miles per hour in a 30 MPH zone is smashed in a head-on collision with a vehicle doing 75 MPH driven by “B” that swerves into oncoming traffic, it’s clear that the resultant injuries to those in A’s car were the direct result of B’s operator, who breached his duty to drive in a safe and lawful manner. Thus, A’s occupants sue B’s driver and owner, the liability insurance covering the “B” vehicle (coverage mandated by every state) comes into play, and money is paid via a settlement or after trial.

In harness racing, it’s not that simple. Consider the following real examples:

Due to the severe impact of tropical storms in August 2004, a racetrack crew pushed accumulated dirt and debris off a training track and on to the infield, leaving an over two foot mound around the entire inside of the oval. When a horse spooked and bolted to the inside, it ran into the mound and caused the trainer to be ejected from his jog cart and injured. A trial court tossed the trainer’s claims of negligence against track management based upon applicable law stating that the inherent dangers of racing and the fact that the trainer, by virtue of his participation, assumed those risks took management’s actions outside of the negligence realm.

It was only on October 6 of this year, over six years after the accident, that a divided mid-level appeals court restored the trainer’s claim. Whether that decision will be further appealed, and whether the injured horseman will ever recover for his damages, is still unknown (McNichol v. South Florida Training Center, District Court of Appeals of Florida, Fourth District (10/06/10)).

Generally, an employee injured on the job receives benefits from his employer’s worker’s compensation insurance. But who is an injured horseman’s employer? By decision dated October 15 of this year, the New York State Worker’s Compensation Board denied benefits to an injured driver. Ruling that the driver was an independent contractor, the Board found neither the horse’s trainer nor the racetrack where he was injured were the driver’s employers. Thus, the injured driver was denied compensation benefits (In re Dancer, NYS W.C. Board (10/15/10)).

What’s a participant to do if they want protection? The good news is that the U.S.T.A. has established some minimal mandatory insurance protections for participants who have any type of current driver or trainer license. The better news is that these base protections can be enhanced at the option of the participant. The not so good news is that not everybody takes advantage of the enhanced coverage offered.

First, as to drivers, U.S.T.A. Rule 5, Section 14 provides that every member track conducting an extended pari-mutuel meet must maintain an insurance policy providing a minimum of medical coverage equal to the average daily purse account raced for at the meeting of the previous calendar year. This is, of course, a critical benefit for the otherwise insufficiently insured.

Second, as to all drivers and trainers, part of the annual U.S.T.A. driver and trainer dues are allocated to a blanket accident insurance policy providing $25.00 in weekly disability benefits. The maximum benefit period is 6 months, and there is a 30-day waiting period between the injury and commencement of benefit payout (elimination period). This basic plan also provides a $5,000.00 accidental death and dismemberment benefit. While today’s cost of living make the benefits appear rather paltry, establishing a premium pool for this limited benefit has enticed the particular insurance carrier to work with the U.S.T.A. to develop voluntary insurance policies that augment the basic benefits. This program exists strictly for the benefit of members and is not a source of revenue for the U.S.T.A.

Third, as to drivers and trainers, for a premium of about 65 cents per day, horsemen can obtain a $300.00 weekly payout for as long as one year of disability after the elimination period. This option also provides a death and disability payment of up to $100,000.00 for members under age 70, and reduced for those older. A second option allows the same class of members to increase the weekly payout to $500.00 and the death and disability payout to a $250,000.00 maximum for as little as $1.70 per day. Both options provide ancillary benefits for accidents resulting in coma or paralysis.

Moreover, the policy covers accidents occurring 24/7, whether racing related or not. If you are hit by a bus or fall off a ladder, this policy provides coverage.

CLICK HERE: to access information about disability products offered by the U.S.T.A.’s insurance provider: http://www.vangundy.com/equine_24hour.htm

In New York, $1.70 doesn’t buy a large cup of coffee. Because of a combination of the large insured pool created and relative rarity of long-term disability, the premium for the second option is incredibly cheap. Even if benefits are never realized by a member (and we certainly hope they never are) the peace of mind that comes from simply having the policy in place in and of itself justifies the premium cost. This is truly a membership benefit that is greatly overlooked by professional horsemen, and is possibly the only affordable insurance of its type for the rank and file horseman or horsewoman.

On Friday night, October 15, two drivers went down in a maiden race at Saratoga Harness when the front-end horse lost footing over a sloppy surface. One of the drivers sustained a broken wrist that required surgery. On Tuesday evening, October 19, an Indiana horsewoman injured in a harness racing accident sustained a broken leg and hip, and required removal of her spleen.
You can count on death, taxes and a 1-9 shot occasionally getting caught at the wire, but don’t think you can count on someone else when a serious accident occurs. If you don’t have an enhanced disability policy, what the heck are you waiting for?

Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.

Editor's Note: The views contained in this column are that of the author alone, and do not necessarily represent the opinions or views of the United States Trotting Association.


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