Written is Written

31 07 2017

As we all know, the horse industry is rife with people who operate without formal written agreements with regard to all sorts of things – sales, leasing, boarding, breeding and shared ownership, among many other scenarios. Why is this? Some would say it is because the relatively small community of horse people feel a kinship with each other and believe that we should be able to trust each other to do what we say we will do. Others say it is because in the horse industry there are more than the average amounts of individuals who want to engage in unethical conduct and they do not want any written evidence of it – or perhaps more common, they want the ability to change course later and then deny what they previously promised in oral communications. Whatever the reason, the habit of a large component of the horse industry is to do things solely via oral communications or, as some say, “on a handshake.”

Many articles have been written about the risks of doing anything on a handshake, especially entering into relationships as complex, nuanced and volatile as an equine arrangement. Yet the handshake arrangements persist and I receive several calls a month involving a disagreement which arose as the direct result of one party believing an agreement was A and another party believing it was B.

What many “handshake” agreement lovers do not realize is that just because you do not have a formal written agreement that says “Contract” or “Agreement” at the top of the page with the terms spelled out, you may still have written evidence of your agreement – albeit woefully inadequate evidence. Instagram comments, Facebook posts, Facebook Messenger messages, emails, text messages and other forms of electronic communication are indeed written communication. And in the absence of a formal legal agreement documenting your arrangement, the courts will look to this ancillary written evidence to construct its best guess as to what your agreement was. It happens over and over that people send messages, emails, texts or the like while emotions are high and then regret their comments (and misstatements) later. In the contract scenario, those emotional writings can really hurt your case if they are shared with a judge and/or a jury. While those very writings may be the only written basis for a court to determine the terms of your agreement, nine times out of ten those writings are not an accurate representation of what the parties agreed to.

Lessons to be learned here? First, have a written agreement for any transaction in which you engage in the equine world, no matter how small or seemingly insignificant. Ideally you would hire an equine lawyer to draft it, but even if you do not choose to do that, at a minimum write down (a) the legal names of the parties to the agreement; (b) the terms upon which the parties agree (as clearly as possible); and (c) have everyone initial each page and sign and date the end of the document. There is a lot of risk to doing it yourself like this, but it will (hopefully) be better than nothing. Second, do not communicate about your agreement via social media or email unless (a) you are extremely careful with what you say; (b) you understand the ramifications of what you are saying; (c) you have made sure what you are saying is consistent with any other things you have written about the situation (assuming what you said before was correct); and (d) you are willing to live with the consequences if you are wrong about your decision to communicate through these avenues. In short, it’s much easier to refrain from using social media to comment on any arrangement than it is to safely navigate social media. Social media commentary is written evidence of your agreement. Likely incomplete and sometimes emotionally charged written evidence, but written evidence nonetheless. If you can print it on a piece of paper, it is written. Written by hand or by a laptop or an iphone or an ipad is written, so do not forget it and be careful with your words!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2017 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.

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Should I Let My Friend Ride My Horse?

5 07 2016

You know the scenario – Oh! You have a horse? I love horses! What color is it? Can I come out and ride sometime?  

Now what do you do? You want to be a good and hospitable friend or relative, but you also want to keep your potential rider and your horse safe and not traumatized – and keep yourself free from the regret and legal liability that could come if they were to have a negative experience together.

Should you let someone ride your horse? If you are extremely conservative and want to avoid all potential liability, then the answer is no.  But if you would like to provide the opportunity for this person to ride your horse if possible (and/or perhaps you need the help keeping your horse in top physical shape) then, like most everything with potentially serious legal ramifications, the answer is “it depends.”

Why is there no easy answer to whether you should let someone ride your horse? Because the answer will depend on many circumstances. A horse and rider combination should always be a good fit. A bad fit can spell disaster for you, your horse and/or your rider – and even perhaps bystanders – human and equine.

Before allowing anyone to ride your horse, the first thing you should do is check your insurance policies to see if they cover any damages that you, your rider or your horse may suffer during such a ride. Ordinary homeowners’ policies often do not provide liability coverage for you in these scenarios. There may be umbrella policies you can buy through equine membership organizations like the United States Equestrian Federation or the North Carolina Horse Council which cover these situations, but you need to read the policy to be sure you understand what it covers or, at a minimum, ask your insurance agent (preferably in writing so you have a record of the response).

Assuming you have insurance coverage for the activity, you should also have your rider sign a liability waiver and release. Such a waiver and release is one of the best things you can do to protect yourself from legal liability in this scenario. In addition to having a signed waiver and release in hand, you can enjoy the benefits of the North Carolina Equine Liability Act if you post in a visible spot where your rider will see it (and you should point it out to them!) an equine liability sign/warning in the required statutory format (in NC you can purchase the signs at http://www.nchorsecouncil.com for a very reasonable price). The sign can provide liability protections extended by statute in North Carolina to “equine activity sponsors” and “equine professionals.” If the required sign is not posted, then you cannot claim the benefits of the liability limiting statute.  Since the signs are inexpensive and easy to post, it makes sense to put up a few of these signs in prominent locations in your barn if they are not already posted.

Lastly, before putting your rider on your mount, you need to carefully evaluate your horse and the person who would like to ride your horse. Even if it is a family member and doing so will make you uncomfortable – you will need to ask this person some very direct questions. When you ask, always encourage him or her to be very conservative with his or her answers. Ideally, you could even have a form with questions listed and have this person complete it in his or her own handwriting and sign it. Your rider’s and your horse’s safety could depend on the accuracy of the answers given in response to your questions. Asking the right questions can also help protect you from legal liability in certain circumstances. Here are some examples of good questions to ask:

A.     Preliminary Evaluations of Your Horse and the Proposed Rider:

 

What are the horse’s and the rider’s temperaments, amount of training (and in what discipline(s)), skill level, soundness, fitness, health, age and size?   

  • Temperament. The temperament of the horse AND the temperament of the rider are equally important. A spooky, tentative horse may not do well with a timid, frightful rider. Likewise, a sluggish, older horse may not move at all if you put a tentative 12 year old on her. Try to achieve good matches. Good matches have a better chance of creating a good experience and lower the chances of a legal dispute. Would your laid back 70 year old dad have an enjoyable (or safe) ride on a green horse which is spooky and nervous? Or maybe he would enjoy a little spark? Again, it depends. It is up to you to investigate what everyone’s expectations are about the ride and think about what situations are best for your horse and your rider in order to ensure the horse’s and the rider’s safety (and thus minimize legal liability if something goes wrong).
  • Unique Circumstances.  Also keep in mind that while your horse may have a calm temperament, long ago he may have had a bad experience that has left him with a unique fear (of tall men, children, umbrellas, plastic bags or something else), so consider those things too when deciding whether a particular rider is suitable for your horse. And remember to assess the mood of your horse and your rider at the time of the ride because everyone can have a bad day now and then. Consult with your trainer about what he or she feels your horse needs and take care not to put your horse or rider in situations where either would be uncomfortable. Uncomfortable situations can lead to injury which can lead to potential legal liability for you.
  • Amount of Training & Discipline. A horse with very little training is never a good match for a rider with very little training. Also, a horse with a lot of training in a discipline other than the rider’s may be a bad match for that rider. Just because your rider won the last ten barrel racing championships in her state does NOT mean she is well qualified to ride a highly trained dressage horse. Personally, my favorite horse to ride is a horse which is well trained in my discipline – one who has done far more than I will ever ask him or her to do. In other words, I like for my horse to know more about my discipline than I do. Choosing that kind of mount helps to keep me safer than I would be in a scenario where I know more than the horse – because I am not a professional trainer who can help the horse learn. So remember to consider disciplines of the horse and rider before pairing them up – matching them can reduce the odds of your facing a legal dispute.
  • Health & fitness level of horse and rider. This factor probably goes without saying, but if your horse is not sound or is sick or weak or recovering from illness or injury, do not put a rider on the horse without very careful consideration and consultation with your veterinarian and trainer. Likewise, if the person who would like to ride your horse is currently ill or injured or recovering from a recent illness or injury, do not allow them to ride your horse without careful consideration of the horse’s temperament (see above) and proof of the rider’s consultation with the rider’s medical advisors as to the suitability of the rider for riding. As a lawyer, I would prefer that all my clients avoid allowing sick or injured riders ride and avoid having anyone at all ride a sick or injured horse because it seems like a recipe for legal liability if further injuries take place during the ride. If your rider has disabilities of one kind or another, work carefully with him or her and his or her physicians to make sure that the circumstances of any proposed ride will keep the rider safe and be comfortable for your horse as well. Many, many individuals with physical, cognitive or emotional challenges have enjoyed and do everyday enjoy successful rides on horses, so such challenges are not necessarily an obstacle to the ride. Just take appropriate safety precautions and stay informed of all relevant information in these situations. 
  • Size, Age and Strength Pairings. Think about the size, age and strength of your horse and your rider. If your rider is a very tall or very large person, putting him or her on a pony is probably not a great idea. That being said, there are many, many different “expert” opinions in the horse community about what appropriate weight and height limits are for horses, but the best advice is to investigate a few of those height/weight charts (most of which can be found online) – or ask your vet, use common sense and if you are not sure, do not risk it. You do not want to embarrass your rider or injure your horse by seating a person in the saddle who is too large for your horse. It could also be dangerous for your horse and/or the rider if you have a very large horse with a back so wide that were you to seat a tiny person on its back the rider’s heels would not even reach below the saddle, keeping the horse from feeling important cues from the rider’s leg. Also, if the rider does not have good physical strength, controlling a very large and strong horse with reins could be challenging or even impossible. Age is a tricky consideration because there are no general rules until you get on the ends of the age spectrum. While very young children and horses and much older adults and horses may be best suited for limited, assisted riding, the range of ability, strength and temperament makes age much less relevant to your analysis than you might think – both with regard to people and horses. Rather than focus too much on the age of a potential rider or horse, I would recommend that you focus more on the other factors discussed in this section A when deciding whether a rider and horse pairing is appropriate or is likely to result in injury to either.

B.    Details of the Ride Itself: 

  • Location, location, location. Where would the ride take place? An arena? A riding ring? A pasture? With or without other loose horses present? Along a public road? Along a level, wide and easy trail? Along a steep, treacherous trail? Or somewhere else? 
  • Environment at the location. As we know, the more chaotic or dangerous the riding environment, the higher the odds are of injury and resulting legal liability. Likewise, if the ride takes place away from your barn, there is the potential of more third parties becoming involved if there is an incident. 
  • The audience. Would an equine professional, you and/or anyone else be in the vicinity during your rider’s ride on your horse? From a legal liability perspective, I would advise never, ever allowing someone to ride your horse without you present unless it is pursuant to a lease or other legal arrangement, you have confirmed insurance coverage for you and the horse, the rider has signed a waiver and release and you are very comfortable with the horse/rider pairing. The next best thing to your being present would be to have a trainer who is very familiar with the horse be present during the ride.  The bottom line is that it would be a very bad idea to allow a person to ride your horse for the first time alone with no one else present. If something happens and no one is present to relay the course of events, that can potentially be detrimental to the health of the horse and the rider and make any necessary determination of potential legal liability very difficult if a problem arises.
  • Safety ConsiderationsAbsolutely require everyone who sits on your horse to wear an ASTM/SEI certified riding helmet. I understand that it may not be legally required in some situations and that certain riders may feel that a helmets cramp his or her style, but when it comes to someone else riding your horse, you simply must ignore this resistance and require that they wear an ASTM/SEI certified equestrian riding helmet if they want to even sit on your horse. Having this requirement in place and enforced will almost certainly help you from a legal liability perspective should a rider be injured.
  • Clear the Decks. Keeping other loose horses out of the area where your  rider will be riding your horse is also a good idea. We are all familiar with a horse’s herd mentality and rather than risk the loose horses’ behavior influencing your horse’s behavior, it is easier and safer to remove that variable from the equation in order to give your horse and rider the best odds of an enjoyable ride – and for you to lower the odds of your facing legal liability for a bad situation.

If you determine your proposed rider is an appropriate match for your horse after considering and addressing all of the above issues, try to choose a place where there is plenty of room, a calm environment (away from construction and bad weather, for example) and a time when everyone (horse and rider) is well rested, well fed and adequately prepared for the ride. Tell your rider about any quirks he or she may need to know about your horse that will make his or her ride more enjoyable and successful and keep an eye out (or have your trainer keep an eye out) for the whereabouts of your rider and your horse so that if anything goes wrong, you will know quickly and you or your trainer can get help on site as soon as possible – whether for the rider or for the horse.

Hopefully these factors are useful to you when considering, from a legal perspective, whether to allow someone to ride your horse. It is a wonderful thing when you have a good and trustworthy person who is well suited for your horse available to ride your horse for you! He or she can be a huge help to you by riding when you may not otherwise be available.

 Good luck, stay safe and happy riding!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2016 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





When Does it Make Sense to Sue?

18 05 2015

Many, many of you have called me and emailed me about unfortunate experiences you have had in the horse world. For some of you with excellent factual scenarios and supportive law, I offer encouragement, you engage our firm and we together dive into the facts and circumstances and work towards getting you out of the situation in a better position than when you started – either through settlement or litigation – or both. What you may not realize is that those clear cut situations are by far the exception, not the norm. The vast majority of the time the calls I receive involve situations where it is simply not cost effective to hire a lawyer to pursue someone in a lawsuit. We might be able to negotiate some sort of settlement with the other party involved, but making the choice to pursue litigation is a very important one and you should know the factors which should go into your decision about whether or not to sue someone.

First, look at the amount of money at issue or the monetary value of your “damage” from the situation. If someone misrepresented a $1,500 horse to you and you bought it, even if you did everything you should reasonably have done to protect yourself, it is likely not going to be cost effective for you to hire a lawyer to try to get your money back from the seller of that horse. When you ‘re talking about a $50,000 or $150,000 horse, it is a slightly different analysis, but at least when you are looking at dollar amounts of that magnitude there is the potential that with that amount of money at stake, if your case is good, it may be worth pursuing in court.

Second, look in the mirror. Did you do everything a reasonable person would or should do in your situation? If not, you could be found by a judge or jury to have contributed to the bad situation; in fact, if your contribution reaches a certain level of unreasonableness you may be found to be “contributorily negligent,” meaning your own negligent behavior contributed to (or made worse) your own damages. In North Carolina contributory negligence is a complete bar to recovery for the Plaintiff (the person suing for damages), so it is a big deal if you have done something which contributed to the situation. Even if someone misrepresented a $50,000 horse to you, it may not make sense to pursue the seller if you did not do the appropriate amount of investigation (or “due diligence”) to determine the appropriateness of the horse before purchasing. For example, a judge or jury may consider whether you had your trainer go with you to assess the horse before purchasing, whether you had a veterinarian perform an examination on the horse (including in some situations radiographs and blood tests for drugs) before purchasing, whether you researched the show history of the horse (if applicable) before purchasing, whether you had the owner or his trainer ride the horse for you so that you could see the horse’s movement and behavior before purchasing, whether you and/or your trainer rode the horse before purchasing and perhaps other steps that would be advisable in your particular circumstances. Of course not all equine disputes involve a purchase and sale transaction. Even if your conflict does not involve a purchase transaction, there are still things that a judge or jury will look to you to have done which are simple common sense, reasonable, responsible behaviors. For example, if your stable fed coastal hay to your horse which caused him to colic and die because he was allergic to coastal hay, but you did not make sure the boarding agreement noted the allergy and specified “No Coastal Hay” when this issue was such an important requirement for his health, you will likely have a problem if you try to pursue the stable as being negligent for feeding coastal hay and attempt to hold it responsible for the horse’s death. Failure to note the allergy in your horse’s boarding agreement (or lease agreement or purchase contract, etc.) could well be seen as contributory negligence on your part.

Third, assuming you win your case and get everything you want in terms of a money award (a rarity in most cases), can you collect it from the defendant(s)? Remember the old saying that you cannot get blood out of a turnip? Spending a fortune on lawyers and winning a case is great, but if you cannot enforce the judgment because the defendant(s) has/have no money, it is quite a hollow victory. Not to mention you are in a potentially worse position than when you started because you have spent a great deal of money to get a judgment that is, as a practical matter, worthless to you. So think about the collectability of a judgment if you win.

While there may be many other factors to consider in your particular situation, for purposes of this article the last thing I will mention is that you need to think long and hard about the tremendous financial and psychological toll any litigation will take on you and your family. Not to mention the inordinate about of time it will consume – time you could spend doing other more pleasant (and arguably more productive) things. Many of you have heard me analogize litigation to organizing our attic or basement or garage. It seems like a great idea at first, but once we have all the junk pulled out and strewn all over the place, we look at it, are exhausted and think to ourselves “Why did I think this was a good idea? Now I have to organize and put most of it back in there and I really do not feel like doing that because I am exhausted.” That is how most people feel after they get deep into litigation. It is miserable, even with the nicest lawyer in the world who tries to make it palatable for you. It is expensive, from both a financial and emotional perspective, and, more times than not, that money and mental energy could be instead used for something which is much more rewarding to you personally (and perhaps financially too).

So, while it may seem like the thing to do when you are feeling wronged by someone in the horse world, consult an equine attorney early on and think very carefully about whether a lawsuit is the best alternative for you and your family. You might be surprised how many times it is not. Am I talking myself out of work? Maybe, but I would rather my clients know what they are in for on the front end than to plow forward and regret it when it is too late to get out without paying a large financial and emotional price, regardless of whether they actually win in court.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Common Misconceptions and Quick Facts about Equine Mortality and Major Medical Insurance

19 10 2014

Last month I wrote about common misconceptions with farm property and liability insurance coverages. This month I am addressing equine mortality and major medical insurance in the hopes of highlighting useful information for everyone. Lisa Steller of Star H Equine Insurance Agency has been a fantastic resource for information and was a major resource for this article as North Carolina’s resident “expert” on all things equine major medical/mortality insurance related. Whereas I typically see issues on the back end after something has gone wrong, Lisa is able to help you on the front end to ensure you have the coverages you need and that you understand what losses your insurance covers and what losses it does not cover.

Let’s start with mortality insurance. Here are some points to remember:

1. While all insurance companies and all individual horse circumstances are a little different, mortality insurance on a horse usually costs about 3-4% of a horse’s value up until the horse reaches 15 years of age. For horses between 15 and 20 years of age, the premium usually runs about 5% of the horse’s value for 15 year olds to about14% of the value for 19 year olds. Finally, equine mortality insurance is typically not available for horses which are 20 years of age or older absent a very expensive, customized policy for a very specific situation.

2. Depending on the circumstances of your situation, there may be conditions or scenarios which are excluded completely from your mortality coverage. Read your policy so you are not surprised if that happens!

3. If you attempt to purchase mortality insurance on a horse for the very first time when the horse is 19 years of age, most insurance companies’ will refuse to insure that horse’s mortality. Insurance companies are understandably much more comfortable continuing to insure a 19 year old horse when they have insured that horse’s mortality for several years (and they have of course had time to collect premium from you over those years as well) than they are taking on a brand new, unknown risk at age 19.

4. Always remember that if your horse gets sick or is injured, you need to call your mortality insurance company ASAP. If you do not notify the company in a timely fashion and the horse dies, the company may be able to deny your mortality claim.

5. Mortality premiums are not usually affected by whether you have previously notified the company of your horse’s illnesses, so agents will tell us that we should not worry that advising the company of our horses’ illnesses will cause the mortality premium to go up if the horse survives the illness. Except in unusual circumstances, mortality premiums are almost always solely based upon age, use and value of the horse, not its health history.

6. One common and difficult situation: your veterinarian says the life of your horse can be preserved – but not its usefulness for your purposes. For example, you have a $20,000 champion reining horse which develops issues with his hooves. Your vet says that a certain treatment is necessary or the horse will founder and die, but the treatment the vet is recommending costs $5,000 and afterwards the horse will no longer be able to participate in reining. You may not have $5,000 or you may prefer instead to spend that $5,000 on a young, green horse which you can develop into a new reiner. If you refuse the treatment which your vet is recommending for your horse and, as a result, your horse founders and dies, your insurance company may be able to deny your mortality insurance claim because you did not elect to have the $5,000 treatment.

7. A necropsy (an autopsy performed on an animal) to determine the cause of a horse’s death is required for all equine mortality claims. This requirement stems in part from the fact that insurance companies do not want to give people an incentive to cause the death of their unwanted horses in order to collect the mortality insurance proceeds.

With regard to equine major medical insurance claims, here are some quick points to remember about this type of coverage and claims:

A. You can sometimes lower the premium cost for your equine major medical coverage by reducing the mortality value of your horse.

B. Major medical coverage premiums are roughly the same for a horse of any age or value, so whether it is 6 months old or 16 years old, worth $500 or $50,000, the premium cost is about the same. Sometimes certain of your horse’s health issues may be excluded from the policy, however. Again, read your policy.

C. Routine health maintenance costs (such as vaccinations) are typically not covered by major medical coverage, nor are veterinarians’ trip charges to your home or your boarding facility, even if your horse is sick or injured.

D. Elective surgery is typically not covered by a major medical policy – for example, complications arising from the gelding of a male horse would not be covered because that surgery is elective. You can usually, however, by paying some extra premium dollars, purchase an endorsement (i.e., additional insurance coverage) to cover elective surgeries if you so desire.

E. As with mortality coverage, major medical coverage requires that the company receive prompt notice of any injury to or illness of your horse. Leave instructions and have the company contact information posted on your horse’s stall door so that someone else at the barn can call the company in case you are not present when the illness or injury occurs.

Last but not least are a few quick facts which pertain to BOTH equine mortality and major medical insurance:

I. Your agent needs a completed and signed application for insurance in order to bind mortality or major medical coverage for you. These coverages cannot be bound over the telephone, so please do not wait to call your agent until you are in the car on the way to pick up your new horse.

II. Equine mortality and major medical coverages are for a specific animal and cannot be switched to another animal. A horse can be added to an existing policy or removed from an existing policy, however. But a new, signed application for that specific animal is required when adding a horse to an existing policy.

III. If you sell your horse, the agent or company will not revise the policy to change it to the new owner’s name. The new owner will need to complete and sign an application for coverage and pay the premium. The prior owner can then cancel the old policy and receive a pro-rated refund of the annual mortality premium and, in some limited cases, of the major medical premium as well.

IV. If a neurectomy has been performed on your horse, it is often no longer insurable for mortality or major medical.

V. Insurance is limited to the value which you paid for the horse, so if you get a $10,000 horse for $5,000, the maximum value the insurance company can place on your horse is $5,000.

Hopefully these quick tips will prove useful to you if you purchase mortality or major medical insurance coverage for any of your equines. The bottom line, as always, is to be sure to read your policy so you know what it does and does not cover.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Some Common Misconceptions About Farm Insurance Coverages

24 08 2014

Occasionally I will receive a call from a horse farm owner who wants me to represent them in connection with a complaint to the North Carolina Department of Insurance because their insurance company has not paid them for a claim they believe should be covered by their insurance. Sometimes it is a claim for damage to property. Sometimes it is a claim related to teaching riding lessons. Sometimes it involves other types of claims. What I often find is that people believe that they have coverage only to find out when it is too late that they do not. How do we prevent this situation? By using a reputable insurance agent who is familiar with the type of insurance you need, by disclosing everything you plan to do at your farm to that agent in writing, by asking good questions of the agent to make sure you understand the coverages and by keeping notes on what is and is not covered under your insurance policy so you can decide with your agent’s help whether there might be different, additional insurance policies you may want to purchase.

When discussing these sorts of issues I frequently call on my friends and experts in the equine insurance area, Lucinda and Butch Human of Star H Equine Insurance in Advance, North Carolina. Lucinda and Butch have been selling equine insurance to horse and farm owners/lessees in the Southeast for decades and have a vast amount of knowledge on the subject. After discussing these matters with them in preparation for this article, I have the following thoughts to offer anyone who carries any type of equine-related insurance, whether it is farm insurance, instructor insurance, mortality insurance or another coverage.

Once you have found a reputable agent experienced with equine insurance, tell them everything you plan to do at your farm (e.g., pasture horses, grow hay, breed horses, board horses, teach lessons, etc.). And do it in an email if possible so that it is in writing so there will be no confusion about what you remembered to tell the agent. Also, you both will have that email to reference in the future if you want to be sure you have addressed everything which needs to be covered. If there are particular concerns about which you are worried, ask questions of your agent. The agent would much rather you ask questions in the beginning when placing the insurance coverage than find out the hard way when you have a claim that something is not a covered risk. Take notes on the agent’s answers to your questions or hang on to the email if the agent responds via email.

This month’s article will focus on misconceptions which are common on the property insurance side of things. Next month we will address misconceptions about other types of equine-related coverages (e.g., instructor coverage, mortality coverage and others).
What kinds of coverage might you be surprised to know you do NOT have with a typical farmowner’s or homeowner’s policy? Well, that is hard to say because folks have differing ideas of what they think is covered under these policies. Generally speaking, though, here a few examples of things which some people believe are covered under their policies but may not be:

1. Fencing – if your fencing around your pastures is damaged, your basic farmowners/homeowners’ policies do not pay to repair that damage. You can purchase separate fence insurance, but it is not something which is automatically covered by the common farmowners/homeowners’ policy.

2. Certain Downed Trees – If a storm blows a tree down on your farm, unless it lands on a covered structure, none of the cost to cut it up and haul it away is covered by your basic farmowners/homeowners’ insurance policy. Even if it is partially on a covered structure, the insurance company may only be required to remove that portion of the tree (limb, etc) which is actually touching the structure.

3. Barns and other Outbuildings Not Scheduled – Be sure to schedule all the structures on your property, from the barn to the run in out in the pasture to the tool shed by the pond. If a structure is not specifically scheduled (listed) on your policy so that it is clear it is expressly covered, you run the risk of it not being covered, so be sure to tell your agent about all your outbuildings!
Hopefully this information has been useful and will help us remember some of the things which are and are not covered by a standard farmowners/homeowners insurance policy. We can also strive to: (a) remember to find a knowledgeable agent when buying any insurance, especially equine-related insurance; (b) advise your agent in writing of all the structures on your property and all the activities you plan to pursue (or allow other to pursue) on your property; (c) ask any questions about coverage before buying the insurance; (d) confirm you understand the answers from your agent; and (e) request the agent respond via email with the answers so you have a written account of what you told them and what they told you. These simple steps will serve to make everyone’s lives easier rather than trying to recollect conversations from months ago during a claims situation.

Insurance exists for virtually any risk you would like covered, you just have to ask. Certain custom coverages may be very expensive and cost-prohibitive, but creative agents can find almost any coverage you would like to have given a few days. So think about your biggest concerns on your farm and/or about your horse and talk with your agent to be sure you are as covered as you can comfortably afford to be!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Halters, Collars and a Quarter Ton

15 07 2014

It comes as no surprise to most horse people when I say horses are not like dogs. Beyond the fact one wears a halter and one wears a collar, there is often a quarter ton difference between the weight of a dog and the weight of a horse. That is quite a large weight disparity. And that is just where the differences begin – with the obvious physical differences we can see with the naked eye.
I know “horses are not like dogs” seems like a statement of the obvious, but I have had several cases where folks are deliberately or innocently or deliriously or naively, depending on the person and the situation, trying to equate the responsibilities of horse owners to protect themselves and others against the many risks inherent with owning, possessing or using a horse with the responsibilities of dog owners to protect themselves and others from the risks inherent with owning, possessing or using dogs. Can both horses and dogs be dangerous? Absolutely. Can they both seriously injure or kill humans? Absolutely. Generally speaking, on average, setting aside the specific temperament of a particularly gentle and slow moving horse and a particularly nasty, aggressive dog, is the risk of serious injury or death higher when we are in the company of horses than it is when we are in the company of dogs? Absolutely. There is just no getting around the fact that there is more risk of physical harm to people and things when they are interacting with the average horse than there is when they are interacting with the average dog.
While horse owners and dog owners can be equally protective and defensive about their beloved animals, it is much more troubling to me when a horse owner openly refuses to acknowledge that there are risks inherent in equine activities, risks that are present primarily because of the sheer size of the animals and the inherent nature of horses as prey animals with a herd mentality. There are hundreds of books written on the subject, from the esteemed natural horsemanship experts’ materials to Cherry Hill’s well known book “How to Think Like a Horse” which eloquently explains typical horse behaviors and the evolutionary reasons behind them. Much of what these writings say teaches us that we, as horse lovers, have to be respectful and patient with the fact that for thousands of years horses have evolved in a way so as to avoid being eaten by a predator. Hyper-vigilant senses of sight, hearing and smell are just some of the adaptations which enable horses to better survive in the wild. When we domesticate horses, these traits do not disappear. And these tendencies can be frustrating and scary to experience first hand, as most of us who have been with a horse when it becomes frightened can attest. While dogs certainly can act out when they are frightened, (a) we are as a society more accustomed to dealing with fearful dogs; (b) dogs are usually smaller than we are; and (c) it is easier to defend yourself against a dog should that become necessary. When a horse is frightened, you can quickly have over 1000 pounds hurtling towards (or away from) you at 25 miles per hour within a matter of seconds.
You get the point. Why do I bring up this issue? Because we horse folks need to always remember that there are many, many, many more dog people/cat people/bird people and other non-horse people than there are horse people in the world. Many people equate horses with other pets in their mind without really thinking about it and do not understand fully or appreciate fully the dangers of being around horses. So, it is incumbent upon us – the relatively few folks who understand these risks – to protect the uneducated and unaware public from harm when we reasonably can. For their benefit, but for our own benefit as well. And we have to do more than dog/cat/bird/guinea pig people have to do in order to protect and educate others about the risks of their animals. Why? Because the potential for disaster is so much greater with an animal of the size and mindset of a horse. I am not suggesting we horse folks need launch an educational campaign to educate non-horsey folks about all things horse-related, just that we think about providing, at a minimum, basic education to those who will share space with our horses in order to raise awareness of the risks inherent with being in the company of horses. Ideally, we also give people who are unfamiliar with horses some suggestions for cautions to follow and risky behaviors to avoid. In fact, if you read your equine liability insurance policy (which you should have if you own, lease or use horses in any way), chances are it requires you to take some basic precautions and provide some basic education and notice of certain risks to the general public who comes into contact with your horses.
Just as the owner of a vicious guard dog posts a “Beware of the Dog” sign as a reasonable precaution to protect the unwary, we too need to take precautions to protect the unwary from the risks associated with our horses, the vast majority of whom are the opposite of vicious. Although most horses are loving and gentle animals, they are hardwired to react quickly to ensure self-preservation and any time something that weighs 1,000 pounds (or 500 pounds or 1,500 pounds) moves quickly, it can cause significant damage to people and property and that is the crux of how horses really are not “just like dogs.”

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





When Buying a Horse, Think Google, Vet Exam and Trial Period

5 06 2014

While I understand that common wisdom in some areas is (and maybe history bears out) that there are lots of horse sellers who are less than honest when selling a horse, I contend that (a) nowdays there are more honest horse sellers than there are dishonest ones; and (b) times have changed for the bad guys because buyers are becoming more educated and have instant access to a vast amount of information about Sellers and horses through technology (Google, Facebook, online registries, etc.) than ever before. The bottom line – and good news – is that it is much more difficult to lie about a horse you are selling – and correspondingly buyers are entering equine transactions better informed than they have ever been. Of course, buyers must take advantage of the great well of information that is now available to them and research the seller and the horse and even prior owners of the horse if possible. Remember that information is power and nowhere else is that more true than when negotiating equine sales transactions.

First, Buyer decides to buy a horse. Usually potential buyers look first to people they know in the horse world, often their trainer or stable owner/manager, to find out about potential horses for sale. And usually that is a great place to start. But do not assume that is always true. Think about your trainer or stable owner/manager. Has he/she been in your area or discipline for many years with a great reputation? I would suggest before assuming anything, you “google” anyone you are considering asking about a horse. Frankly, I always “google” a person’s name and the word “mugshot” just in case. And search their name on Facebook, Twitter, Instagram, etc. Sounds awfully nosey, I know, but you would be stunned at the number of times I have discovered extremely relevant and important information on a potential horse seller, prior owner, broker or trainer by doing these searches.

Second, I search USEF, AQHA, Jockey Club or other applicable registry to obtain the horse’s history and verify its registration and make sure other facts match up as told to me by the Seller (horse’s show record, lineage, age, height, markings) and to make sure that the records I am reviewing are for the same horse as the one being sold. Many clients have come to me thinking they were buying one horse whose show record was stellar only to discover later that the horse they purchased was not the same horse whose show record had been provided to them. And when that realization comes, of course the seller and/or broker are nowhere to be found. Also, be sure to speak with the horse’s current and historical veterinarian and get a release from the Seller allowing you to see all the horse’s vet records. And look at them and share them with your own veterinarian BEFORE your vet conducts the prepurchase examination on the horse – whether it is a basic, moderate or extensive examination. As I have mentioned before, if it does not make sense to pay for blood testing (usually it does, however), at least pay to have the blood drawn ($50-$75 usually) and professionally stored in case you get the horse home and in a month something goes terribly wrong and you want to run some blood tests at that point to check for prior drugging, disease, etc.

Third, study how the horse is currently worked and stabled. Does he have ten hours of turnout per day on ten acres with one other horse and never works? Is he worked every day and turned out in a paddock for an hour a day? What does he eat? Does he have allergies? Does he crib or have other bad habits? Is he accustomed to dogs running loose in the barn? And on and on. Find out everything you can about this horse from anyone whom you can find who knows something. Even though the information you receive may not all be 100% accurate, remember that information is power. That does not mean you believe everything you hear, just that you collect as much as you can and then filter through it yourself and draw your own conclusions about the horse. And, if you have access, always seek advice from professionals in the industry to see what they have to say and give their views whatever amount of weight you deem appropriate.

One last thing I will mention is that one of the best protections you can have is a trial period during which you have the horse at your stable but do not own him yet and have not yet paid for him (although some sellers will require a deposit be paid up front in order to take a horse on trial). Different disciplines are known for not permitting or for permitting or for encouraging trial periods. Regardless of what is typical in your discipline, do your best to convince the seller to give you a trial period of at least a couple of weeks (preferably a month or two) to see how the horse does with your rider and your barn and your other horses, if applicable. Even if the Seller requires a nonrefundable deposit payment, if you discover during the trial period that the horse will not adapt well to your environment or is not suited for your rider, you will be ever grateful that you negotiated a trial period and can send the horse back to his owner.

Moral of the story: Be careful! Be your own detective BEFORE YOU PAY ANY MONEY to verify the horse’s identity and habits, current environment and health history. And if you can, negotiate a trial period during which you can assess the horse’s suitability for your stable and rider so that if it is not a good match, you can return him to his owner and move on to greener pastures!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.