The Pennsylvania Superior Court recently issued an opinion holding that a widow could bring a wrongful death action against the organizers of the Philadelphia Insurance Triathlon, even though her husband signed a waiver and release before participating in the event.
In 2010, Derek Valentino drowned in the Schuylkill River during the half-mile swim portion of the Philadelphia Insurance Triathlon Sprint. Michele Valentino, Derek’s wife, filed (among other claims) a cause of action under Pennsylvania’s Wrongful Death Act, 42 Pa.C.S.A. Section 8301. In PA a wrongful death claim is not derivative of the decedent’s claim; rather, the statutory claimant has an independent right of action. Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 656-57 (Pa. Super. 2013). Like a claim for loss of consortium, a wrongful death action arises from an injury to another person, but remains a separate and distinct cause of action. Id.
The Defendant Triathlon argued that even if Michele Valentino could bring the wrongful death action, the Triathlon had no duty to Derek Valentino because of waiver, which stated that event participants would waive liability and assume all risks. The PA court disagreed and found that Derek Valentino’s release agreement was only between Derek Valentino and the Triathlon, and, therefore, had no effect on a non-signatory’s claims.
In a significant divergence from case law in other states, particularly California, the Pennsylvania court explained that a release signed by an injured person is only effective vis-a-vis the injured person and the released parties. The court noted that a ruling consistent with California law would “effectively eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of decedent’s rights at time of death.” While the release would bar a survivorship claim, it does not preclude a wrongful death claim.
In light of this decision, it is possible that event insurance premiums could increase or that it could be more difficult for organizers to obtain event insurance. I am interested to hear the industry’s reaction to this case. What are insurers doing? What are organizers experiencing?