Cambridge, MA asked in Contracts, Personal Injury and Car Accidents for Maryland

Q: Form requires indemnification for a car accidents

My sister is disabled and lives in Maryland. A new agency will to be providing services to her, namely getting her "out in the community" by driving her to, and helping her participate in, activities outside of the home. The staff member would be driving her in their own car and is required to have car insurance.

The agency wants us to sign a "transportation release" form. (No previous agency has asked for such a thing.) The section we find problematic says:

"I agree to release, indemnify, and hold harmless [company name] and any of their officers, employees, providers, directors, agents and their executors, administrators and heirs from lawsuit, claim, demand, or action against them for transporting the above referenced client."

My sister has health insurance, but what if the staff member is negligent and my sister has medical bills not covered by insurance? Are we right to dislike this passage? Is it "standard"? Is it even enforceable?


2 Lawyer Answers
Mark Oakley
Mark Oakley
  • Personal Injury Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: Liability waivers are, in general, enforceable, with some limitations that require a lawsuit and fact finding by a judge or jury to sort out--which is not what you want. A party cannot enforce a liability waiver to release them from liability for "gross" negligence or reckless behavior, but a waiver for simple negligence has been upheld in Maryland. Other issues like unequal bargaining power and ambiguity of the contract language between the parties can also come into play when challenging such waivers.

Here's what I suggest: demand that the waiver of liability only apply to damages exceeding the insurance policy liability limits of the agency employing the driver, and above the driver's insurance liability limits for the driver's personal liability, and impose minimum liability limits for each (e.g., the agency shall maintain minimum liability coverage for the negligence of its employee driver of $1,000,000/$3,000,000; and the driver shall have minimum personal automobile liability coveage of $250,000/$500,000)). The fact that the contract requires the driver to carry auto insurance does not save you from this provision, because your sister is still waiving the right to claim damages for the driver's negligence., and her insurance company will deny coverage based on the waiver (if their insured is not liable to you, neither is the insurance carrier).

If they continue to insist on this waiver, look elsewhere for these services, or be prepared to purchase your own insurance policy that covers the driver's negilgence.

I would also limit the provision to damage claims made by your sister only, and not by third parties. The "indemnify" provision is broad enough to encompass a third-party claiming damages for an accident caused by the driver, making your sister liable to reimburse the driver for a damage claim made by someone the driver injured due to the driver's own negligence. However, the law is unlikely to enforce the indemnification provision to require your sister to indemnify the negligent driver for their own negligence. Without doing the research on this issue, I am speaking generally from past knowledge, but I suspect such an indemnification provision would be against the public policy of the State of Maryland and would not be upheld. However, I would not sign such an agreement and simply rely on a plan to litigate the issue should an accident happen.

Tim Akpinar
Tim Akpinar
  • Personal Injury Lawyer
  • Little Neck, NY

A: Liability waivers can be enforceable, provided they satisfy certain requirements (which can be state-specific). But in general, courts frown upon them for public policy reasons. One option is to express your unwillingness to relinquish ordinary rights in an accident, or to look into other providers. Good luck

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