Lack of Waiver Voids Coverage for New Hampshire Climbing Gym

June 2, 2009

An insurer can deny liability coverage to a New Hampshire climbing gym because it failed to get a waiver from a climber who was later seriously hurt, the state’s Supreme Court has ruled.

The decision centered on a lawsuit between Dover Indoor Climbing Gym and its general liability insurer, Colony Insurance Co.

In Aug. 2007, a climber at the gym, Richard Bigelow, fell and sustained serious injuries, and immediately after, the gym put Colony on notice to defend and pay claims on its behalf. Colony, however, sued the gym, claiming that because the gym had failed to get a waiver from Bigelow, it was not required to pay claims.

Its reasoning: An endorsement to the gym’s policy which said any participant was required to sign a waiver or release of liability, and failure to do so would render the policy null and void.

The Supreme Court sided with Colony in its appeal, overturning decisions by a lower court which awarded a judgment to the gym.

At the trial court level, lawyers for the gym argued that, because Colony did not provide the gym with a sample waiver, the endorsement to the policy was ambiguous, and therefore provided coverage. However, Colony appealed that decision and argued the endorsement was not ambiguous, and contended the gym’s failure to get a waiver from Bigelow rendered the policy void. In addition, Colony argued, the gym was not entitled to coverage because it knew of the policy’s waiver requirement.

Ultimately, the Supreme Court sided with Colony and denied coverage for the claim. “The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants,” wrote Justice James E. Duggan in the court’s opinion on the case.

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