2012 National Conference on Equine Law to be Held Next Week

The National Conference on Equine Law will be held at the Embassy Suites in Lexington, Kentucky from Wednesday, May 2, 2012 to Thursday, May 3, 2012. 

The Kentucky Oaks and the Kentucky Derby will take place in Louisville, Kentucky on the following Friday and Saturday, respectively.

Topics to be covered at the 2012 Conference include:

  • Annual Case Law Update for the Equine Law Attorney
  • Current Employment Law Issues in the Equine Industry
  • Race-Day Medication Bans and the Legal Issues Surrounding Them
  • The Uncertain State of "Amateur Status in the Sport Horse Industry and Other Legal Issues in Representing and Advising Horse Associations
  • Choice of Entity Law for the Equine Industry
  • How to Develop, Maintain, and Grow an Equine Law Practice
  • Annual Federal Legislative Update for the Equine Law Attorney
  • Tax Law Update for the Equine Practitioner
  • The World of Cloning and Embryo Transfer Issues in the Equine Industry
  • Fiduciary Litigation in Equine Matters
  • Ethics for the Equine Lawyer
  • Equine Insurance Issues for First and Third Party Coverage
  • Legal Issues Surrounding the Role of Racing Stewards

Registration for the Conference is still open.  A registration form can be downloaded here.  

If you plan on attending the Conference, I hope to see you in Lexington! 

I will post highlights of the speaker presentations on the Equine Law Blog next week.  Stay tuned.

Highlights from 2011 National Conference on Equine Law

This year's National Conference on Equine Law, held May 4-5, 2011 at the Embassy Suites Hotel in Lexington, Kentucky, hosted 158 lawyers and other horse-industry participants from 25 different states and two continents.

Hosted by the University of Kentucky Continuing Legal Education, the National Conference on Equine Law has been held in Lexington, Kentucky during Kentucky Derby week for the past 26 years.

I was pleased to be invited back as a speaker this year at the Conference, and presented on a panel with Mary Fullington and George D. Smith on the topic of "Collection of Equine Judgments and Competing Equine Liens."

  • Frank Becker's popular annual equine law case update included Stanislav v. Papp, 2009 WL 2929772 (NY Sup 2009), aff'd 911 N.S.S.2d 60 (2010), which involved a personal injury lawsuit brought by a woman who met her date on Match.com, claiming that her date owed her a duty of care because he espoused horse expertise on his dating profile.  The court rejected the injured plaintiff's heightened duty arguments.  Becker's update also included Welk v. Simpkins, 2010 WL 4560015 (5th Cir. 2010), holding that in the dispute at issue between a horse owner and their trainer, the business relationship did not give rise to a fiduciary duty.
  • Julie Fershtman and April Nieshl did a thorough and practical presentation on "Liabilities for Injury to Horses and Risk Management Considerations."  They pointed out that state Equine Activity Liability Acts do not protect defendants in cases involving injury to horses.  Their seven key tips for equine bailment contracts include:   1) emergency authorization clauses; 2) pasture, attention & placement; 3) health disclosures of incoming horses; 4) maintenance programs; 5) emergency insurance contact info; 6) waiver/release of liability or “exculpatory language”; 7) indemnification clauses.
  • Holly Rudolph provided a well-prepared, concise overview of state recreational land use statutes and the exceptions to the Equine Activity Liability Acts in various states.
  • Jenny Workman provided innovative tips on how equine photographers can protect their work product.
  • Sonja Keating, Senior VP and General Counsel of the United States Equestrian Federation, and attorney Joe Terry reported on the many interesting legal issues that arose during the 2010 World Equestrian Games, held for the first time in the United States last year at the Kentucky Horse Park in Lexington. 
  • Luc Schelstraete, a veteran equine attorney from the Netherlands who specializes in international horse sales, gave a hands-on explanation of the applicable laws and provided many helpful tips on importing horses to and exporting horses from Europe.

The material presented at this year's conference was very well-received, according to Kevin Bucknam, Director of the University of Kentucky CLE.  According to Bucknam, the written evaluation forms returned by attendees confirmed the quality of instruction, with 100% rating the conference either "Excellent" (91%) or "Good" (9%).

Want to Sue Your Vet? Read This First.

Denton County CourthouseAttorney Gregory M. Dennis gave an excellent presentation on Veterinary Malpractice at the 2010 National Conference on Equine Law.  Greg’s topic could not have been more timely or relevant. We receive multiple calls per week from horse owners wishing to sue their veterinarian for injury to or the death of their horse. 

My firm does not sue veterinarians due to conflicts purposes.  Although we can’t take these cases, we often consult with horse owners who are considering a veterinary malpractice case. If you are considering a lawsuit against a veterinarian, here are some things you should consider:

We usually tell people that most (but not all) veterinary malpractice cases are difficult for plaintiffs for two main reasons:

1)      It is hard to find a veterinarian who will testify against another veterinarian; and

2)      Horses are personal property (chattel) under the law. As such, a plaintiff usually cannot recover pain & suffering damages (for the horse or the owner) or damages based on the sentimental value of the horse.

The burden of proof in a veterinary malpractice action is always on the plaintiffFackler v. Genetzky, 595 N.W.2d 884, 889-90 (1990) appeal after remand 638 N.W.2d 521 (2002).

The plaintiff must prove:

1)      A veterinarian’s acts or omissions failed to meet the standard of care;

2)      Acts or omissions were negligently performed;

3)      Negligently performed acts or injuries caused the animal’s injury or death; and

4)      As a result, the plaintiff was damaged.

See Eades, Jury Instructions on Medical Issues, VETERINARIANS, 7-20 (6th ed. 2004).

To establish element number one (failure to meet the standard of care) the plaintiff must get another veterinarian to testify against the veterinarian being sued for malpractice. Downing v. Gully, 915 S.W.2d 181 (Tex. App.—Fort Worth 1996, writ denied). This is where a lot of people run into problems. They have trouble finding a vet to testify as to what the standard of care was, and that their veterinarian breached that standard of care.

Note: a veterinary negligence case is different from a veterinary malpractice case. If you are suing for ordinary negligence only, a veterinarian might not have to be called to testify.

Example: A healthy horse comes in for his annual vaccinations. A veterinarian leaves a door open and allows a horse to get into the feed room. The horse eats a whole bag of feed and then colics and dies as a result.

Another tough element in many cases is element number 3 (causation). This is especially tough in cases where the horse died. If a horse dies in the care of the vet and the plaintiff wishes to prevail on a malpractice suit, the plaintiff needs to prove that the horse would not have died anyway (but for the vet’s malpractice).

Damages typically awarded in vet malpractice cases in Texas and most states are 1) loss of animal’s market value or the cost of replacement, and 2) veterinary expenses. Because attorney fees are generally unrecoverable on a vet malpractice case, the case might cost more to bring than the horse's fair market value.

That said, states such as Alaska, Florida, Hawaii, Idaho, Kentucky, New York and New Jersey to some extent, as well as the District of Columbia have expressed a willingness to accept claims requesting damages beyond market value. 

This post is not meant to discourage people from bringing "bad" vets to justice. It is meant to give potential plaintiffs an idea of the legal framework surrounding veterinary malpractice cases in general.

Take aways: 1) Use good vets that you know and trust; if you don't know a good vet, ask other horse owners in the area for a referral; 2) if your horse is valuable, get major medical and mortality insurance on the horse; and 3) if you suspect malpractice, your first call should be another veterinarian so you can get an idea of whether or not the standard of care was breached. That will be your ultimate issue.

For additional information on veterinary malpractice suits, there is a helpful article  by David S. Favre published online by the Animal Legal & Historical Center.

******

If you are a veterinarian who has testified for a plaintiff in the past or would be willing to testify for a plaintiff, please contact my office as soon as you can so I can refer you to horse owners and other lawyers who may need your services. My number is 817-878-3541. Thank you!

**A special thank you to Greg Dennis, whose presentation materials provided valuable references for this post.

Photo credit:  Courthouselover (Flikr)

Highlights from 2010 National Conference on Equine Law

I just returned from the 2010 National Conference on Equine Law , held last week in Lexington, Kentucky. This was my fifth year in a row to attend the conference, and it was a great year.  The conference had a record number of attendees--180 practitioners from all over the United States. This year's lineup of speakers and topics was the best I've seen so far in five years.

I was lucky enough to be invited to speak this year.  My topic was "A Multi-Jurisdictional Comparison of Equine Liens".  With only 30 minutes to speak, I only had time to cover Texas, Kentucky, and Florida.  However, I hope the materials are helpful by reference to every practitioner or horseman regardless of state.  My handout can be accessed in two parts: Part 1 and Part 2.  Click here for a copy of my PowerPoint presentation.

Takeaways from my presentation:  1) no matter what state you're in, and regardless of whether your state requires it, always send written notice directly to the debtor (if you can find them) before foreclosing on an equine lien; 2) if you want to do a private lien sale under the UCC foreclosure provisions, make sure you can prove to a judge or jury that your debtor was engaged in a "farming operation" (i.e. they are in the horse business--not just a hobbyist); and 3) there may be multiple liens on the horse at issue.  Be aware of which lien has priority.  The person in possession of the horse almost always has the most bargaining power, regardless of priority.

Ned Bonnie, a long-time Kentucky horseman, equine lawyer, and graduate of Yale undergrad and law school, told me he also attaches (seizes via court order) the original registration papers to a horse when a lien dispute arises.  I like this idea, though it requires filing a lawsuit in Texas.

Other highlights from this year's conference:

1) Frank T. Becker's annual Equine Case Law Update--The "case of the year" (the year's most wacky or novel case) was State v. Coates, 2009 WL 2414334.  Frank calls it a "silly case of no legal significance", but interesting nonetheless!  It involved a case of "road rage" between a jogger and a horseman fighting over who should yield a pathway.  The jogger intentionally startled the horse and ended up getting arrested.  Horsemen 1, joggers 0.

2) Ted Martin and April Neihsl talked about the recoverability of damages in equine cases.  Ted stressed the importance of determining the fair market value of the horse at issue and said it is usually determined by 1) expert testimony; 2) previous sales prices and offers to buy; and 3) the owner's testimony (in some cases).

April addressed the recoverability of lost profits, sentimental, and punitive damages.  April stressed that when proving up lost profits, it is essential that the plaintiff had income in the past and that the focus is on net profits rather than gross profits.  Also, while sentimental damages are rarely awarded in equine cases, some states (Colorado, Illinois, Oregon, Tennessee, and Utah) allow them by statute.  

3) Bob Webb and Chris Coffman discussed the IRS's "National Research Program" that is targeting many horse businesses.  The key issue to survive these audits is to prove that the horse operation is a for-profit business, or a trade at the very least.

4) Doyice and Mary Cotten discussed changes in the law affecting the enforceability of liability waivers.  The most frequent causes of liability waiver failure are, according to the Cottens: 1) statutory prohibition of waivers in some states (such as Montana and Louisiana); 2) lack of clarity in the waiver (use of phrase "all liability"); 3) inclusion of waiver in entry form or membership contract; 4) waiver is overbroad or too narrow; and 5) surprisingly--the party to be released is not named in the waiver!

5) Paul Husband presented on the law determining whether someone is an independent contractor or an employee.  Paul stressed the importance of this issue as 6,000 employment tax audits are planned as part of the IRS National Research Program.  The Obama administration has budgeted $25 million to target misclassification of workers as independent contractors.  If an employer misclassifies an employee as an independent contractor, they can receive the "100% penalty" (the person with signature authority on checks for the employer personally pays the employee's tax and serves time in jail).

6) Jay Hickey of the American Horse Council addressed current federal legislation affecting the horse industry.  The Economic Stimulus Bill contains at least one thing that might benefit horse owners--$1.7 billion that can be used for the maintenance and construction of equine trials.  The AHC encourages local organizations to contact district offices to make sure funds are appropriated to horse-related projects.

7) Julie Fershtman discussed liability issues surrounding equine shows and events.  Because most shows or rodeos do not get each spectator to sign a liability waiver, it is important that event sponsors ask their insurance company about insuring against spectator liability.  Furthermore, it was noted that many accidents at equine activities do not involve horses at all, thus bringing them outside the Equine Activity Acts.  Sponsor insurance should, if possible, cover all premises liability issues...not just accidents involving horses.

8) Krysia Carmel Nelson and Tamara Tucker addressed liability issues in boarding and training arrangements.  They suggested including the following clauses in some boarding/training agreements: 1) "training disclaimer" to protect against claim that bad training diminished value of horse; 2) "risk of loss/indemnity" provision to curtail claims that the trainer or boarding facility injured the horse; 3) "veterinary power of attorney" to protect boarding facility from claim that veterinary services were not authorized and ruined horse; 4) "abandonment clause" holding that after a certain period of time, a horse becomes property of the boarding facility/trainer if the owner doesn't pay, make contact, or move the horse.

9) Bruce Smith and Mike Meuser covered fraud in horse sales transactions.  They addressed the crucial issue of a seller's duty to disclose a known defect in a horse.  A duty to disclose can arise when 1) a sales contract requires it; 2) a seller voluntarily makes a partial disclosure that is misleading; 3) the seller knows the buyer has the wrong impression about something related to the horse; 4) a confidential or fiduciary relationship exists; and 5) the seller knows the horse has dangerous propensities.

10) Gregory Dennis, a practitioner who specializes in veterinary malpractice and disciplinary proceedings, discussed various issues surrounding veterinary malpractice cases involving horses.  His presentation highlighted the difference between general negligence in veterinary actions versus veterinary malpractice.

If you would like further information about this year's conference, please click on the individual presenters' names discussed above to find their contact information, or contact me for details.

Advice for Lawyers: How to Develop an Equine Law Practice

I get a lot of inquiries from lawyers and law students about how they can develop a niche practice in equine law.  Below are the most common FAQs and my responses.  

1.  Is there enough business in equine law to make a living?  

The answer to this is a resounding "yes"!  I honestly do not believe the state in which you live will dictate this, either.  I left a big firm 3 years ago and have been exclusively handling equine matters since then.  I now have more business than I know what to do with.  And I *only* take equine cases. I truly believe that the smaller your niche is, the bigger your market becomes.  I also believe there is enough work for a lawyer to have a niche practice *within* equine law!

 2.  Do your clients pay you?

Yes.  I do handle some pro-bono cases by choice but my clients do pay and I have a competitive hourly rate. Getting paid for your work has nothing to do with the industry your client is involved in.  This comes down to running your firm like a business.  

3.  What kinds of stuff does an equine lawyer do?

I think it depends on what kinds of matters you're drawn to.  While I can handle most types of equine-related matters,  I do a lot of  trial work.  I was a litigator at the big firm so I was trained at the big firm for 6 years to try civil lawsuits.  I represent horse owners in several main types of lawsuits, including 1) possessory disputes / recovery of horses being wrongfully held by someone; 2) enforcement of liens on horses; and 3) sales disputes (where the buyer is suing the seller for fraud, DTPA, breach of warranty).  I represent individuals almost exclusively.  I don't do any criminal (i.e. cruelty cases) because they are not civil matters.  If you're interested in criminal, you can get a job with the county prosecuting those cases (think "Animal Cops").  Equine lawyer Julie Fershtman(Michigan) often represents the horse owner's liability insurance company when someone sues a boarding facility or trainer, for example, in a personal injury matter.  She has written a lot of books and you need to buy those and read them if you have not already done so.  Joel Turner, an exceptional lawyer and person, often represents huge Thoroughbred farms in Kentucky in stallion syndications, racing syndications, and major business transactions.

 

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