Liability Issue

jssailem · Nov 5, 2017

Thetone,
It sounds like you contacted the offending boat owners insurance company and got the brush off. That is what they do.

Your insurance company will not help due to the Liability only coverage.

So go direct to the boat owner. Tell him you’ve been damaged. Give him the cost estimate including your loss of use. And get his response. Maybe he’ll step up and pay or negotiate. Maybe he’ll blow you off. If the latter seems you can go to small claims to get $2,500 (Rhode Island limits). Or you go to court for a larger settlement. You’ll need to be able to argue why the boat owner owes you payment. This my influence the boat owner to get his insurance company involved.
Then it will be based on the strength your argument

Michael Davis · Nov 5, 2017

Looking at the damage to your boat I think there must be damage to the other boat as well. His liability coverage should cover your boat when he makes a claim for his. You should talk to him. Courts are a last resort.

Head Sail · Nov 5, 2017

dlochner said:
There are lots of facts we don't know, so we are necessarily speculating. The argument I made was a suggestion of how the insurance company might respond. The proximal cause of the damage is of course the other boat. But the boat and its owner did nothing negligent to cause the damage, the boat became a free agent once the mooring failed. The insurance company will argue that the root cause of the accident is the weather conditions, an Act of God.

I would agree the boat owner is not at fault if the mooring failed. The owner of the mooring (marina?) is at fault and cannot use act of God as a defense since the purpose of a mooring is to hold a boat securely in stormy conditions.

dlochner · Nov 5, 2017

Thetone, unfortunately I think you are going to eat all or most of the cost of the repair or do the repair yourself. The burden of proof is on you to show that the insurance company and the owner are wrong in not compensating you for the damages to your boat.

If you go to court you will have to show that you have suffered damages (easy) and that the defendant, the owner is at fault (not so easy or cheap).

As you have already stated, the insurance company's position is the mooring was adequate, it had been inspected, and the root cause was the weather. My earlier comments were an elaboration of their apparent reasoning.

In order to prevail in court you have show that their reasoning is faulty. How might you begin to do this?

Assert that the weather conditions are typical for the harbor and that there was nothing unusual about the conditions. This will require a meteorologist and an historical analysis of the local weather patterns.

Assert that the mooring standards are inadequate for the typical conditions in the harbor. This will require the above mentioned meteorological analysis and testimony from a mooring expert.

Assert that the inspection was faulty in some way, could be the standards, the frequency of inspections, or the person doing the inspection. Not sure how you might do this, except by putting the inspector on the stand and questioning him.

Assert that the mooring was, in fact, faulty and that the boat owner knew or should have known that fact. Demonstrating this would require retrieving the mooring and having it inspected by a mooring expert.

As you can see, trying to litigate this would be prohibitively expensive. You'll have to put the money for the experts up front and find an attorney who would be wiling to represent you. Even if you went to Small Claims Court, the rules of evidence still apply and you would have to convince the judge that the boat owner is responsible for the damages.

Again, I'm sorry that your boat is damaged and you have to deal with this. By now you probably realize that hull insurance is cheap protection. Good luck, I wish you well.

Head Sail · Nov 5, 2017

dlochner said:
Thetone, unfortunately I think you are going to eat all or most of the cost of the repair or do the repair yourself. The burden of proof is on you to show that the insurance company and the owner are wrong in not compensating you for the damages to your boat.

If you go to court you will have to show that you have suffered damages (easy) and that the defendant, the owner is at fault (not so easy or cheap).

Way to early to discuss going to court and as you have said previously, not a practical solution. He hasn't even talked to the other boat owner or owner of the mooring.

dlochner · Nov 5, 2017

Head Sail said:
Way to early to discuss going to court and as you have said previously, not a practical solution. He hasn't even talked to the other boat owner or owner of the mooring.

Yeah, you're right, however, it is good to know what you are getting into before you jump into the deep end. My response was a counterpoint to the all too frequent "Sue the bastards" responses. There are ways to be compensated that are easier for all to swallow. If the moorings for both boats are owned by the same entity, perhaps a deep discount on next year's mooring would help ease the pain. Or if the mooring field is owned by a marina that does repair work, a deep discount on the repair might help.

I recently settled a Small Claims Court case against a contractor. He spent thousands of dollars defending the claim that could have been settled without attorneys a year earlier for about the same money. Don't be penny wise and pound foolish.

Rick D · Nov 5, 2017

OK, I'm going to tip-toe in here for a moment. Liability is not established simply because the guy's boat hit his. Negligence must be established. One measure is whether the guy did what a normal, prudent person would have done in similar circumstances. If so, that guy would argue there is no negligence. If (insert arbitrator, administrator, judge, jury) finds what he contends is compelling, there is no award. If you can convince someone that the guy was deficient, for some action or lack of action, a prudent person would have taken, he might receive an award. That prudence is ordinary care, not extraordinary. The best shot at this is small claims court even if he has to eat some of the cost. The other guy cannot make a settlement without his insurer's authority nor accept liability without arguably jeopardizing his insurance coverage for this event.
Disclaimer: I am not an attorney. I did handle claims for many years and was an arbitrator.

dlochner · Nov 5, 2017

jviss said:
According to what law or custom? I understand what you are saying, I just don't agree. The aggrieved party is injured, regardless of whether the other boat owner was negligent. Someone is responsible, no?

No, that is what an "Act of God" is about.

Rick D · Nov 5, 2017

jviss said:
According to what law or custom? I understand what you are saying, I just don't agree. The aggrieved party is injured, regardless of whether the other boat owner was negligent. Someone is responsible, no?

No. Someone is not necessarily responsible. In other words, you can be damaged by someone's action or inaction and they are not (arguably) responsible for your damage absent negligence on their part. If someone is driving in the parking lot of your marina and their vehicle is hit by a meteor causing the vehicle to careen over the seawall into the cockpit of your boat, it is not likely anyone is responsible for your resulting damages. You get to eat them.

Rick D · Nov 5, 2017

jviss said:
Very humorous, but not correct. There is a presumption of negligence in these cases, which must be overcome to be determined an act of God.

I do not believe there is ever a presumption of negligence except in strict liability cases. However, I readily admit that my legal training was not extensive. However, I am off into the weeds and the point I think we can all agree on is that for the amount of damage, he's best off arguing the matter in small claims where such trivia is often overlooked in the interests of equity.

Will Gilmore · Nov 5, 2017

I know nothing about any of this but what I have read on your thread and a little time watching people's court. However, it sounds like the greatest liability lies with the entity that established the mooring as a safe place to tie boats in near proximity to each other during foul weather. The other boat did not break away due to poor knot tieing or inadequate hardware. From what I read here, the mooring broke away. As was pointed out, the mooring's job is to hold during adverse conditions. The fact that it broke away may be considered evidence that it was inadequate. None of this could likely be seen or predicted by the other boat owner. It is the marina or yacht club that is responsible for that. However, I suspect that there is a clause in the mooring lease contract that binds the user of the mooring to indemnify the mooring owner in case of any damages to the renter or others. You can ask the other boat owner to help with his insurance company, you can have a lawyer send their lawyers a letter that implies you are willing to go to court over this, that might get you something. It seem unlikely that the owner of a boat that had every reason to believe his boat would be as safe as you had reason to believe yours would be, would be found negligent and responsible for the circumstances that the storm presented.
Sorry to sound negative but, I really feel your best option is to pay the relatively small fee to have a layer draft a letter and accept the outcome from that investment. They might pay you just to avoid greater expenses or they might decide you have no grounds.
- Will (Dragonfly)

dlochner · Nov 5, 2017

Jviss, can you ever accept another point of view? Can you accept that you may not be correct all the time?

Perhaps you should read up on Chaos theory and really understand probability. If you understood those concepts, then, you might begin to understand the "Act of God" concept, which really isn't about theology, but about things that happen that no one has reasonable control over.

You have, again, managed to troll the thread way off topic.

jviss said:
Res ipsa loquitur.

Don't think this rule applies here. If it does then perhaps you should increase your liability insurance and/or sell your boat. Because you could be held liable for events beyond your reasonable control.

bawlmer · Nov 5, 2017

I don't understand why you would not have full insurance. You made the informed decision to pass on comprehensive insurance and now you have to bust out your checkbook. The purpose of insurance is to avoid what you are having to deal with now.

Meriachee · Nov 5, 2017

Go Steve.
Having been involved directly in a dragged mooring incident, I’m damm glad I have insurance. Why does it need to be harder than this ?

justsomeguy · Nov 5, 2017

If you cannot filter, the internet is not for you.

Meriachee · Nov 5, 2017

Well here's yet another thread that qualifies for the unsubscribe button.

Jackdaw · Nov 5, 2017

Anyone that thinks that liability-only insurance will be OK as long as THEY are not the direct cause of any damage is exposing themselves to huge potential expense. Without an insurance company that will fight to have the other guys insurance pay and not them, you will be left to fight that legal battle on your own every time.

Crazy Dave Condon · Nov 6, 2017

Having read the responses, First, Thetone went to the insurance carrier first vs. to the owner of the boat that hit his. Many companies will generally reach out to the insured of the offending boat for a report or not. You need to write a letter to the owner with photos filing a claim along with any estimated repair bills by certified mail with return receipt sent to him first.

Secondly, not enough information or the full information story has yet to be posted. Thetone, you may have also dealt with an adjuster who is not marine environment oriented. Take for example @Kermit sailboat this past spring, the ins. carrier sent out an adjuster who knew nothing about boats and was quite rude to me about the repairs of the boat. I specifically told that adjuster what probably occurred; however, I think he did not believe what I said having been an adjuster in my previous life and handling claims for boats even when I was a sailboat dealer. I dealt direct with Kermit's insurance carrier who finally sent out a respected surveyor whom I talked with. Kermit was paid in full. The story to this,
ask the adjuster how much experience they have with boat related claims. Then ask where they got their information. Could have been from a third party which in many cases is the case and should not be considered a reliable source. So again, not the full picture here.

As for the inspection of the mooring, who did that and how much experience. Who says the mooring was not the culprit. Stated storm or not needs to be identified or not. I think checking with NOA would be a first start but again we do not know if a stated storm or hurricane or what. How long ago was the mooring checked. Also find out if the boat came loose from the mooring to make sure if it was not at the tie down on your boat or not to eliminate you are not at fault.

Before the litergy of court action, you need to file a letter and send it and do some checking with better factsand get back with us for a better response so those of us can give you a better response..

Kings Gambit · Nov 6, 2017

Yeah--taking off on Cray Dave and dlochner above. If the "inspection defense" is all that is standing between you and a potentially negligent boat owner who might actually be at least partly responsible for your damages, then that's where you need to "attack." When was the inspection done?; who did it?; where is the report?; were there any recommendations that were not followed?, etc. Did any other moorings fail, etc.? Of course, this is all on you to discover; could take weeks or more. You may have to file in small claims to get the records subpoenaed, etc., if they won't give them voluntarily. Filings cost; plus there are potentially unhappy consequences of litigating against a fellow Club member, regardless of who's in the "right."

Even though sympathetic, I have to say that not having hull insurance essentially means that you might one day lose the boat entirely and have no compensation. If the boat is worth much more than your deductible would be, then you should reconsider what you're doing here. IMHO anything on the water is always at risk of total loss in a way that land side property is not.

Liability Issue

SBO Weather and Forecasting Forum Jim & John

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