From: Bruce E. Cobern (bec@PIPELINE.COM)
Date: Sat Nov 06 1999 - 11:20:49 CST
> From: Scouts-L Youth Group List [mailto:Scouts-L@listserv.tcu.edu]On
> Behalf Of David M Lock
> Sent: Friday, November 05, 1999 11:52 PM
>
> One thing I consider a top issue in responses to the list are that the
> couple thousand subscribers are looking to this list to receive ideas and
> input in their decision making for today's situation.
That's correct, and those thousands of subscribers are entitled to
authoritative information. I posted a question about two weeks ago asking for
specific AUTHORITATIVE cites to support the CONVENTIONAL WISDOM (really MYTH)
that the CO owns all of the assets of a unit. In this period none of the
thousands of subscribers to this list, many of whom have quoted that
conventional wisdom, have been able to provide that information supported by
quotes from documents which would be legally binding on the parties, much
less, as Ted Burton, a lawyer currently cooking for his SMF course points out,
state or local law.
We have seen authoritative information in the Rules and Regulations which
state otherwise. The section on dissolution talks about "unit property"
(which wouldn't exist if the CO owned all the assets, it would be CO property)
and turning it over to the COUNCIL, or the council and CO agreeing to allow
the CO to hold onto the property IN TRUST for future SCOUTING uses.
IF the property belonged to the CO that whole provision in the R&R would be
unnecessary and the CO would be able to do with the assets as they wish.
Similarly it refers to "unit obligations." But, if the unit didn't exist and
was merely a part of the CO, those would be CO obligations.
It is CLEAR from the R&R that the BSA anticipates that each unit will, in
fact, function as a separate entity, with its own assets and liabilities.
That type of entity is, as Ted pointed out, known as an unincorporated
association. That association could be tax exempt, even if its sponsor was
not (a big advantage to fundraising). Otherwise, the whole section on
dissolution makes absolutely no sense.
Now, if you can quote me other BSA literature that supports the conventional
wisdom, I'd love to see it.
>
> Had it not survived there surely
> would have been a property fight.
Actually, titling the property the way they did legally avoided ALL potential
disputes over ownership, since disposition would legally be controlled by the
terms of the trust.
>
> I hope you never have to test your clear risk management plan. It sounds
> flawed. I carry all the normal insurance and I recommend anyone who
> works with children in any relationship pick up an umbrella policy
> ($1,000,000) to supplement their standard basic. I don't trust blindly
> in the structure.
This is actually a reasonably prudent course of action because it at least
guarantees you your own counsel (or at least on paid by YOUR insurance
company) but is, theoretically not necessary.
> The test for negligence and prudence begin at the
> standards and norms for an event.
To some extent. However, in NYS there is a law which protects those
volunteering from liability for all but gross negligence or willful acts. I
thought a similar statute had been passed at a national level. If that is the
case then the plaintiff has a MUCH higher hurdle to leap before any individual
can be liable for damages in a volunteer context.
>
> Scoutings structure is a good one for the people who are operating within
> its guidelines. When a tragedy does occur I can assure you everyone
> will be there. If you have followed BSA policy then the CO will be the
> most likely weak sister in the crowd. Remember BSA provides a $1,000,000
> additional umbrella policy for all adults but it has it's requirements
> and limitations spelled out in clearly and specifically in BSA policy.
> Even the failure to file a tour permit can void this coverage.
Some comments about the liability insurance. First, the coverage is now in
excess of $15,000,000 (as of a couple of years ago.) Second, for the CO (and
its officers directors and employees) that insurance is primary, meaning the
judgment would have to exceed that amount before the CO's insurance would ever
get involved. Third, for others the BSA liability insurance is secondary.
Finally, there is lots of "conventional wisdom" about this coverage as well,
including the fact that the BSA will look to find any loophole to avoid having
to defend a volunteer, and that the policy requires all sorts of things, like
tour permits, to be valid. Calvin Gray has asked for someone to show him that
in the policy and it hasn't materialized. This is a CONTRACT between those
parties involved in the unit, made at the time of the charter, under which
this insurance coverage is provided. It is not so easy for an insurance
company, or a self-insurer, to just walk a way from a contract they made to
provide insurance coverage. Lots of state insurance departments, etc. frown
on that.
So, do you have any authoritative cites to support the conventional wisdom on
either ownership of property or the liability insurance?
--
Bruce E. Cobern
mailto:bec@pipeline.com
