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Subject: Gross/Willful/Wanton Negligence
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Author Messages
PeteH
(New Jersey)

Posts:6


04/29/2006 11:17 AM  
Our bylaws say that the HOA must obtain "...public liability insurance ir personal injury and death from accident occurring within the community..."

We have had enough claims against our policy that we have had to seek insurance from expensive carriers.

Our board now wants to change the bylaws so that only accidents caused by "willful, wanton or gross negligence" will be permitted.

They claim that such "tort immunity" clauses are now part of all new governing documents in age-restricted communities.

Is this true? Do you have such a clause? (We are in NJ.)

What do you think of this idea as a way of cutting down on the number of possible claims/lawsuits?

Thanks.
RogerB
(Colorado)

Posts:5067


04/29/2006 2:26 PM  
Pete, I suggest you review your Declaration which probably has minimum insurance requirements. Also, I would check with your insurance agent on the details regarding tort immunity.

"Our board now wants to change the bylaws so that only accidents caused by "willful, wanton or gross negligence" will be permitted". I believe you meant to say 'covered by insurance' rather than 'permitted'. That may not be prudent unless the HOA and its members want to be liable to pay for charges established in court and not covered by your HOA insurance.
PeteH
(New Jersey)

Posts:6


04/29/2006 4:04 PM  
If, by "Declarations", you mean the "Declaration of Covenants, Easements and Restrictions", there is no mention of liability insurance at all. The Bylaws has what I wrote in my first post.

The insurance agent wants us to pass a tort immunity amendment, surely because the cost to thye insurance compnay will go down without their having to lower the premium.

What other information do you suggest he might provide?

Do you have any answers to my presious questions for me?

Thanks.
PeteH
(New Jersey)

Posts:6


04/29/2006 4:10 PM  
Posted By RogerB on 04/29/2006 2:26 PM

"Our board now wants to change the bylaws so that only accidents caused by "willful, wanton or gross negligence" will be permitted". I believe you meant to say 'covered by insurance' rather than 'permitted'. That may not be prudent unless the HOA and its members want to be liable to pay for charges established in court and not covered by your HOA insurance.


Sorry, I missed this. Well, the trustees seem to feel that if there is a tort immunity clause that prohibts a member from suing for other than willful/wanton/gross negligence, it will prevent members from filing "frivolous" lawsuits.

I'm not a lawyer nor do I play one on TV, but it seems to me that the definition of willful/wanton/gross negligence is arguable and that a judge would probably hear the csse (or perhaps have a preliminary hearing to determine if the case has merit) if a lawyer brought it forth.

Or, worse, the insurance would settle, as they have donw on three previous claims which became lawsuits.
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