Re: Waivers/duress (correcting mis-statements)

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Posted by Ken Kurtis on November 19, 2001 at 18:06:54:

In Reply to: Re: Waivers/duress posted by MHK on November 19, 2001 at 14:42:20:

(Well, this ended up a lot longer than I intended but what the heck . . .)

While I'm flattered at all the attention Michael gives me, once again he has mis-represented statements I've made so that he can ridicule the mis-statements (which is actually a pretty good rhetorical ploy). So let me see if I can set the record straight, or at least provide new statements for future mis-stating.

MHK said: " . . . wasn't your position not too long ago that the NAUI and PADI waivers weren't valid becuase they were in 8 point type and your understanding of California law was that they needed to be in 10 point type??"

In a word . . . no.

I have never maintained, suggested, inferred, hinted, or remotely thought that the NAUI or PADI waivers were invalid (they've been successfully defended numerous times in various courts as we both well know). I have never maintained, suggested, inferred, hinted, or remotely thought that the NAUI/PADI waivers were in 8-point type.

I DID, however, have a conversation with Gina Schott (sp?), lawyer for PADI, at the Anaheim DEMA show (January, 1996), where we were discussing whether or not California law requires waivers to be written in at least 10-point type to be valid. (I think another PI attorney friend of mine had told me that.)

And I do recall, Michael, that you were standing there (invited, not evesdropping) while we talked.

The reason that I mentioned the 10-point issue to Gina was that I had given her our Reef Seekers home-brewed waiver for review and wanted to make sure that I was correct about the 10-point requirement. She said at the time (as I recall) she wasn't positive and would check on it. She got back to me a couple of days later, and confirmed that 10-points was the minimum requirement. (I think I relayed that info to you, Michael, since you were privvy to the initial conversation, but can't swear to it.)

But quite honestly (and not meaning to yank your chain) I can see how you could have gotten a bit confused on this since this all happened almost 6 years ago and came to the conclusions you did.

MHK: "Wasn't that the very reason that you specifically told me why you drafted your own 'Statement of Understanding' . . ."

In a word . . . no.

First of all (and a very minor point), it's actually titled "Statement of Agreement, Assumption of Risk, & Waiver." And I mention that only because it's intended to be more than just a waiver.

It's designed to be more of a contract of the things we aree will or won't be done during a dive trip rather than just agreeing to assume risk. In the body of it (for those who haven't seen it) you agree that scuba diving is dangerous, that you're solely repsonsible for your safety in the water, that you will not dive if you're not comfortable, etc., etc. It ends with the standard PADI/NAUI language of assuming all risk and injury.

The reason we did this is that we (My biz parnet Bill Wright and I) actually felt it was a bit more comprehensive than the NAUI/PADI boat waivers. Ours is written in plain English, and the diver has to sign off on each point of the agreement (11 in all) and then sign at the bottom.

Two salient points:

1. Prior to our using it, this document was reviewed by both PADI and NAUI legal department (Gina at PADI and Mat Monroe at NAUI) and both gave their blessings.

2. At a diffetent DEMA show than the Anaeheim one, Rick Lesser of Lesser & Associates (PADI's defense firm) commented that he liked the idea of having each line signed on the agreement because it made it that much harder for someone to say "I never saw that" if they tried to challenge a specific part of the waiver/agreement.

MHK: "While I know you aren't a lawyer . . ."

But I have played one on TV.

MHK: " . . . you claimed you had a lawyer friend of yours review the waiver that you drafted . . . "

Well, you got me there. I must confess you're absolutely right. I'm just not sure why you think that's a problem, especially in light of the PADI & NAUI review and blessing that followed my personal attorney's review. (BTW, he's the one who specializes in PI law.)

MHK: " . . .it just strikes me as strange that your shop went from not requiring waivers to begin with [ie; relying on the boats waivers] to the shop that you drafted the 'Statement of Understanding', to now you getting on here and advancing the PADI and/or NAUI waivers . . ."

Let's face it, Michael. I could say "Good morning" and you'd decide it was strange and feel a need to point out to everyone that since I don't have a degree in meterology that I'm not qualified to make that statement. (FTR, I have been a weatherman on TV). I'm sorry that you're still hurt and pissed about the Frank thing but that was over a year ago. Isn't enough enough?

MHK: "Will you ever be consistent????"

Actually (and seriously), I think we are pretty consistent in our positions. (And I don't mean the royal "we." Remember that Reef Seekers is owned by two people, Bill Wright and myself, and we devise our policies jointly. They are not solely dictated by me or Billy.)

When we attempt to explain/defend what we do, if you could listen to the reasoning objectively, instead of getting so incensed over everything and anything I personally say or post, I think you'd be able to see that.

Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, Ca.

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