PBCBA BAR BULLETINS pbcba_bulletin_sept2018

ADR C o r n e r IF THE STUD’S A DUD AND OTHER HORSE TALES Mediation of Equine Law Disputes May Be Your Best Bet JEFFREY H. MARCUS BRUCE A. BLITMAN The economic impact of the equine industry in Florida is estimated to result in $6.5 billion gross domestic product. But horses are expensive animals and things can go wrong. If things go wrong and you end up in a legal dispute, then mediation can be an effective way to resolve your legal dispute. This article will describe some of the kinds of equine legal disputes. We’ll tell you why mediation may be optimal and identify the kinds of disputes for which mediation may be more suitable, and those kinds of disputes for which mediation may be less suitable. We will give some practical suggestions on mediation of equine law disputes. As the title of this article implies, horse breeding is one of the kinds of equine activities that can give rise to legal disputes. Much of horse breeding is conducted pursuant to contracts, the breach of which have legal consequences, including litigation. Horse sales are subject to legal disputes as well. Horses are considered “goods” under Florida law, so horse sales are subject to Article 2 of Florida’s Uniform Commercial Code. If the legal issues are material, then legal disputes may arise. Forty-eight states have enacted equine activity laws. These laws generally provide for owners and operators of equine activities to be immune from liability. But despite such equine activity laws, horse and barn owners and operators may still be sued. The fact patterns may differ, but often include the failure to post the proper notice, the failure to get a proper signed release, or circumstances that fall under one or more express exceptions under the relevant equine activity law. Mediation can be particularly useful in equine disputes for the following reasons: 1. Mediation offers the parties a greater possibility of preserving their business relationship. 2. Solutions which the parties negotiate themselves may be more flexible or imaginative than the legal remedies available in court. For example, the parties may negotiate for the sale of a replacement they need to know in order to prepare horse, and the sale of the original horse to a optimally for the mediation. third party. The Florida Bar Animal Law Section (ALS) 3. Early resolution through mediation can is a good place to start in the selection of a result in a horse being returned to the seller mediator for equine law disputes. The ALS and resold, and the buyer getting back the website lists members and their profiles. purchase price. The recently formed Equine Law Committee of the ALS stands ready to assist attorneys Mediation may work better than other forms and the public concerning the practice of of dispute resolution in the following kinds equine law. of disputes: We humans love our animals passionately. 1. Disputes over contracts of sale. Our passion extends to the lengths to which we will go to protect and fight for them. We 2. Disputes between owners and have offered some keen insights into why veterinarians or farriers. and how mediation of equine law disputes is worth considering when passions run 3. Disputes arising from the transportation high and result in equine law disputes. of horses. 4. Disputes over horse training agreements. 5. Breeding contract disputes. 6. Disputes involving person al injury or property damage related to equine activity. 7. Disputes arising from construction work of equine facilities. There are certain types of equine legal disputes for which mediation may not work as well as others, such as the following: 1.Disputes in which the factual determination is outcome determinative. For example, a dispute over whether a horse received the proper medication or not would depend on a factual finding that might be based on a blood or urine test. 2. Landlord tenant eviction disputes. 3. Stablemen’s lien disputes. 4. Disputes in which the insurance carrier may not want mediation. Selection of a mediator for equine law disputes is important to the process. Skilled mediators are accustomed to dealing with specialized industries and related concepts and terminology. In equine disputes, pre-mediation conferences would be a great way for mediators to learn about the things PBCBA BAR BULLETIN 7 The State of Florida Department of Agriculture and Consumer Services, The Florida Horse Industry Brochure (2015). 1 2 See Zendejas v. Redman, Case 9:15-CV-81229- KAM (S.D. Fla 2016). 3 See Michigan State University College of Law ANIMAL LEGAL & HISTORICAL CENTER Map of Equine Activity Liability Statutes (December 2017) website at URL: https://www.animallaw.info/ content/map-equine-activity-liability-statutes. (Only California and Maryland do not have equine activity laws.) 4 A broader discussion of state equine activity liability laws is beyond the scope of this article. For a more in-depth treatment of this important topic, please see Julie I. Fershtman, Equine Activity Liability Acts, Recurring Issues Impacting Insurers and Their Insureds, International Risk Management Institute, Inc. AgriCon Conference Paper (2016); Michigan State University College of Law ANIMAL LEGAL & HISTORICAL CENTER, Detailed Discussion of the Equine Activity Liability Act (2003). 5 See ALS Membership webpage at URL: https:// www.floridabar.org/about/section/section-an- mbrs/. For additional ADR tips and resources, go to http:// www.palmbeachbar.org/adr/ Jeffrey H. Marcus is in solo practice in Wellington. He is a Florida Supreme Court Civil Circuit Certified Mediator. He is admitted in Florida, New York and Pennsylvania. Jeff can be contacted at https://marcuslawoffice.com. BRUCE A. BLITMAN is certified by the Florida Supreme Court as a Circuit, Family and County Court Mediator. He recently relocated from Broward County to Palm Beach County and can be contacted at BABMediate@ aol.com.

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