Appeals Court Preserves Club’s Bid for Indemnification

May 22, 2004

A Massachusetts appeals court has affirmed a lower court’s determination that the estate of a man who died in a freak accident on a golf course should indemnify the country club up to the amount available through the estate’s homeowners’ policy.
The impetus for the case was an accident that occurred at Belmont Country Club. Member John Post was driving his golf cart on a temporary golf cart path when his cart collided with a rope set across the path. The force pulled an iron stake, which was holding the rope in place, out of the ground. The stake struck Post in the head, leading to his demise.
The estate sued the course for wrongful death and for conscious pain and suffering. The club counterclaimed under an indemnity clause contained in its member handbook. During discovery and while the club’s summary judgment motion on the indemnity question was pending, the club agreed to settle the estate’s claims, paying the total sum of $ 4,500,000. However, the settlement specifically reserved the club’s counterclaim for indemnification and “provided that any recovery was to be limited to Post’s homeowner’s policy both as to source and amount.” Interestingly, “the agreement and related documents released the estate, and, by implication, Post’s heirs and next of kin, from any liability under the indemnity agreement.”
The clause in the club’s membership handbook provided the following with respect to the use of golf carts:
“Each person using a cart does so at his/her own risk. Each person renting or driving a cart is responsible for any personal injury or property damage caused, including without limitation, injury to him/her and damage to the cart, and agrees to indemnify the Club against all loss, claims or expenses resulting from use of said cart.”
In its conclusion, the court wrote that “Post was bound by the release and indemnity clause, even though, as the estate argues, it was contained in a member’s handbook among many other rules, regulations, and provisions; that the section was not highlighted, as other sections of the handbook were; and that there was no evidence that Post had ever read the provision or knew of its existence, either before he became a member of the club, or during the ten years of his membership.”
The court further noted that “the provision regarding release and indemnification was adopted by the membership for their mutual benefit, Post included. Given the extent of the membership and the expected use of carts during the golfing season, with the possibility that others might be injured and lay claim against the club, the indemnity clause was in fact more likely to have worked in Post’s favor than not, shielding him and the other members from increased dues related to payment of claims or additional insurance costs.”
It also pointed out that Post “had the ability to work and vote for change (of the provision), should he have been so inclined.” Post v. Belmont Country Club, No. 02-P-304
Mass. App. Ct. 3/19/04


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