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2009-03-13 BOD MeetingPUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING Terrace Hotel Lakeland, FL March 13, 2009 AGENDA 10:00 am Call To Order John Litton, Chairperson Consent Agenda 1. Request Approval of November 14, 2008 Board Meeting Minutes 2. Request Approval of Treasurer's Report as of December 31, 2008 Any Board Member may request to have an item removed from the Consent Agenda and placed on the Regular Agenda for further discussion. Regular Agenda 3. Executive Director's Report Ross Furry, Executive Director Al. Request Board Approval of 2009 -10 Administrative Budget A2. Request Approval to Utilize Surplus to Offset Member Loss Fund Contributions B. Educational Conference Update C. Member Notices to Withdraw i. Notice for 2009 — Notice Extension ii. Notice for 2010 D. On -Site Property Appraisals i. Scheduled in 2009 ii. Scheduled in 2010 4. Insurance Advisor's Report Glenn Tobey, Tobey & Associates 5. Broker's Report Andy Cooper, World Risk Management A. Insurance Renewal, Coverages and Limits B. Disclosures including Commissions C. WRM Restructuring D. Proposed Rule Change for Self Insurers under Workers' Compensation Act 6. Chairperson's Item A. Executive Director's Evaluation John Litton, Chairperson 7. Legal Update Donovan Roper, Esquire A. FL Supreme Court Case: Parents Unable to Waive Liability for Minors in Commercial Activity Scenarios 8. Board Member Items A. Election of Officers — June Board Meeting Public Comment: State full name and address. Discussion must be limited to a maximum of five (5) minutes per person. Adjournment Luncheon immediately following PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 REGULAR AGENDA SUMMARY 4. Insurance Advisor's Report 5. Broker's Report Glenn Tobey, Tobey & Associates Andy Cooper, World Risk Management A. Insurance Renewal, Coverages and Limits WRM will present the renewal terms and conditions for the April 1, 2009 renewal. In addition, they will report on their marketing efforts. B. Disclosures including Commissions At the request of the Chairperson, the broker will report on all disclosures required in the agreement with them, including all Commissions— to include contingency commissions — which will be paid to any party as a r sult of the renewal as well as which markets were contacted, etc. r c.�. d-r\ � 1 -+.x,v i %. `r �% 1 ),. S Diu 14,„ , y (.; >- C. WRM Restructuring D. Proposed Rule Change for Self- Insurers under Workers' Compensation Act Rule Chapter 69L -5, F.A.C., is being amended to promote clarity to the process by which self- insured employers comply with the obligations associated with self - insuring pursuant to Chapter 440, Florida Statutes. The broker will review proposed changes. Attachment f / G / Sc1t1,5 G.; C G..; d ti t -Li. - AL .Ctd fli,tinF �/ ,Ct, 5.D. Proposed Rule 69L -5, F.A.C. Rules for Self- Insurers Under the Workers' Compensation Act Proposed Rule 69L -5, F.A.C., Rules for Self- Insurers Under the Workers' Compensation Act Rule Chapter 69L -5, F.A.C. is being amended to concurrently repeal and replace all existing rules with new rules which have been restructured and renumbered to promote clarity and efficiencies to the process by which self- insured employers comply with the duties and obligations associated with the privilege of self- insuring pursuant to Chapter 440, Florida Statutes. The purpose of Rule Chapter 69L -5, F.A.C., is to interpret and implement provisions of Chapter 440, Florida Statutes, regarding regulation by the Department of Financial Services and the Florida Self- Insurers Guaranty Association, Inc. of entities self - insuring the payment of compensation for Florida employees. The proposed new rules address the scope of the self - insurance authorization, the required filings, record maintenance and audit processes for self- insurers, the self - insurance process for both governmental entities and members and former members of the Florida Self- Insurers Guaranty Association, Inc., and the application process for and regulations regarding servicing entities. The proposed new rules also adopt forms for use with said rules. The proposed new rules differ from the existing self - insurer rules in various ways, including increasing the minimum net worth requirement to qualify to self - insure and by establishing new guidelines to be used in determining the financial strength of current and former self - insurers. In addition, the proposed new rules require security deposits for current and former self - insurers to be based on the entities' long term issuer credit rating, in order to create a more structured and objective system for determining financial strength necessary to ensure timely payment of current and future claims. The proposed new rules also outline the penalties for self - insurers who late -file reports, fail to file them, fail to maintain loss records, or misclassify losses or other data which impacts the calculation and collection of assessments for the Workers' Compensation Administration Trust Fund and the Special Disability Trust Fund. Further, the proposed new rules include a change in the specific excess insurance requirements regarding the maximum retention amount allowed without additional approval, provide for a an electronic version of Form DFS- F2- SI -17, Unit Statistical Report, and eliminate the alternative method of application to self - insure. PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 REGULAR AGENDA SUMMARY 3. Executive Director's Report Ross Furry, Executive Director Al. Request Board Approval of 2009 -10 Administrative Budget The proposed Administrative Budget for the period 4/1/09 through 3/31/10 totals $1,452,237, a 2% overall reduction from the prior year's administrative budget. Total Personnel Budget is $937,026, a 6% reduction over prior year's budget. The reduction in personnel budget is a direct result of not filling the Loss Prevention position previously held by Rob Ross and a corresponding reduction of taxes, retirement, and benefit costs. Total Operating Expense is $395,691, a 5% increase of approximately $20,000. This increase is attributable to increased actuarial reports and contractual office lease CPI of $5,000. This year we asked our actuary to provide more in -depth analysis of our individual member loss contribution requirements in order to effectively compete in the marketplace and look at options in program structure. We anticipate the need to continue and further enhance our actuarial reports going forward and as such have budgeted an additional $15,000. Reserves for computer replacement and auto replacement remain the same as prior years. Additionally, the Administrative Budget includes $218,000 for our Insurance Consultant and a credit from the Group Health Trust in the,ame am unt as last year to offset shared overhead expenses. 7 tic; t This year with the pressure our members are under to reduce costs and in order for the PRM program to position itself against intense competition that seems to want to buy our members' business, it is recommended that the membership approve the use of undesignated surplus, up to $1,500,000 to pay for the Administrative Budget. The net result of the use of this surplus money will be that each member will receive a direct savings equal to their last year's PRM Administrative Budget allocation. While we had initially thought we could utilize interest income, rather than surplus for this because of declining interest rates, we do not anticipate interest income to be sufficient to cover the total cost of the Administrative Budget. However, it is noted that as of September 30, 2008, PRM did earn $1,798,698 in interest income that has increased members' surplus. Attached: Proposed Administrative Budget for FY 2009/10 Board Action: ,Approved Denied Deferred Other *0 STAFFING Public Risk Management Of Florida Property / Casualty Proposed Administrative Budget FY 04101/09- 03/31/10 2007/2008 2/15/2008 2008/2009 12/31/08 2009/2010 % Change Budget Actual Budget Actual Proposed Budget Officer Salary 134,838 50,663 140,906 106,205 149,360 6% Office Salary 533,176 212,735 565,167 404,124 509,449 -10% Payroll Taxes 50,480 18,219 54,015 37,386 50,399 -7% Florida Retirement 68,938 7,242 72,504 40,505 69,090 -5% Health Ins. - Officer 10,069 7,106 21,396 13,235 19,965 -7% Health Ins. - Office 135,831 46,453 124,500 83,946 121,631 -2% Life Ins. - Officer 1,004 392 1,004 726 1,040 4% Life Ins. - Office 1,986 741 2,015 1,526 1,782 -12% Long Term Disability 11,500 4,222 12,063 10,271 14,310 19% Total Personnel Budget 947,822 347,773 993,570 697,923 937,026 -6% OPERATING EXPENSE 0% Legal Fees 15,000 10,103 15,000 16,758 15,000 Pre - defense Legal 5,000 0 5,000 0 5,000 0% Audit Fees 29,000 23,200 31,000 4,300 31,000 0% Actuarial Study 14,000 0 15,000 0 30,000 100% Appraisal Expense 5,775 1,375 5,775 4,313 5,775 0% Auto Expense 4,800 3,612 4,800 4,675 4,800 0% Travel Expense 30,000 17,651 30,000 37,797 30,000 0% Association memberships 2,000 525 2,000 870 2,000 0% Dues /Subscriptions 3,200 1,042 3,200 1,700 3,200 0% Education /Training /Confer. 30,000 4,156 30,000 19,330 30,000 0% Office Lease 75,736 30,953 75,736 56,458 80,280 6% Janitorial / Cleaning 3,800 1,211 3,800 2,450 4,160 9% Office/Computer Equipment 18,000 10,605 18,000 17,356 18,000 0% Telephone 26,000 6,438 26,000 14,766 26,000 0% Copy Machine Lease 3,000 812 3,000 1,827 3,000 0% Repairs /Maint: Equipment 2,000 0 2,000 0 2,000 0% Office Expense 14,000 4,859 14,000 13,008 14,000 0% Newsletter 4,000 1,665 4,000 2,498 4,000 Postage 13,000 2,502 13,000 7,466 13,000 0% Printing 2,000 90 2,000 3,816 2,000 0% 0% 3,000 0 3,000 0 3,000 0 Loss Prevention Expense 22,000 6,262 22,000 6,684 22,000 0% Marketing & promotion 4,500 1,218 4,500 907 4,500 0% Meeting Expense 24,100 3,576 24,100 8,871 24,100 0°% Miscellaneous Expense 2,500 1,622 2,500 2,645 2,500 0% Conference Member Room Expense 0 0 7,576 6,938 7,576 0% Training /Seminar Presentation 6,000 0 4,000 424 4,000 0% Web Site Maintenance 6,800 0 4,800 0 4,800 0°% Hurricane Expense 0 0 0 0 0 0% Non - Budget -Board Approval 0 0 0 0 0 0°% 369,211 133,477 375,787 235,854 395,691 5% Total Operating Expense Total Admin. Budget 1,317,033 481,250 1,369,357 933,778 1,332,717 -3% Computer Replacement Reserve 15,000 7,500 15,000 7,500 15,000 Auto Replacement Reserve 30.000 15.000 30.000 15.000 30000 Adman Budget with Reserves 1,362,033 503,750 1,414,357 956,278 1,377,717 Group Helath Admin. Transfer - 143480 -71742 - 143,480 - 71,742 - 143,480 Admln Budget with Gr. Hlth. Credit 1,218,553 432,008 1,270,877 884,536 1,234,237 Insurance Consultant 218,000 90,833 218,000 163,500 218,000 Admln Budget with Ins. Consultant 1,436,553 522,841 1,488,877 1,048,036 1,452,237 -2°% -3% -2% 2/23/2009 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 REGULAR AGENDA SUMMARY Executive Director's Report continued A2. Request Approval to Utilize Surplus to Offset Member Loss Fund Contributions In past years PRM has utilized the surplus of the Pool to effectively lower members' costs. For example, in 1999 $500,000 was provided as a participation credit. In 2002 a million dollars was restricted from surplus in order to take advantage of minimum /maximum Loss Fund required by reinsurers. In 2006 $2,000,000 was paid from surplus to reduce the cost of property premiums. Additionally in 2006, $2,250,000 was restricted from surplus in replacement of purchasing aggregate excess reinsurance. As of this date, the only restricted surplus that PRM retains on its financial statements is the $2,250,000 and it is not anticipated that the Loss Fund will be fully needed and these surplus funds should not be required. Again, as our members are under intense pressure to reduce costs, it is recommended that $2,000,000 of surplus be utilized as a participation credit to reduce each member's Loss Fund contribution. Board Action: /Approved Denied Deferred Other PUBLIC RISK MANAGEMENT OF FLORIDA BALANCE SHEETS' September 30, 2007 and 2006 2007 2006 ASSETS Current Assets Cash and cash equivalents $45,436,127 $45,140,540 Accounts receivable 1,759,925 1,634,810 Related party receivable 136,869 136,869 Reinsurance receivable 385,088 991,597 Prepaid expenses and other assets 8,852,914 30,483 56,570,923 47,934,299 Noncurrent Assets Investments 495,265 Deposits 5,665 5,665 Member receivable — deferred funding 479,487 479,487 Furniture and equipment, net 94,277 117,946 579,429 1,098,3 63 Total Assets $57,150,352 $49,032,662 LIABILITIES AND ACCUMULATED MEMBERS' EQUITY Current Liabilities Accrued liabilities $ 1,416,636 $ 553,391 Deferred revenue 2,404,940 93,543 Advance from reinsurers . 4,472,468 4,914,160 Claims payable 7,945,320 7,053,006 16,239,364 12,614,100 Noncurrent Liabilities Claims payable 13,314,538 10,529,837 Compensated absences 41,121 41,121 13,355,659 10,570,958 Total Liabilities 29,595,023 23,185,058 Accumulated Members' Equity Invested in capital assets Unrestricted: Undesignated Designated 41'1 )1 (1- 94,277 25,21 1,052 2,250,000 27,555,329 Total Liabilities and Accumulated Members' Equity $57,150,352 The accompanying notes are an integral part of the financial statements. - 7 - 117,946 25,729,658 25,847,604 $49,032,662 resented By: Glenn R. Tobey nsurance Advisor II MM. NM Summary Analysis Public Risk Management Per the directions of the Executive Board at the August 15, 2008 meeting, along with Ross Furry, Executive Director of PRM, World Risk Management, Insurance Brokers and Glenn Tobey, Insurance Advisor, it was agreed that alternative options, if any, ' should be looked into to see if changes and /or alternative options would be beneficial to PRM and its future. September 04, 2008 > Meeting was held with Ross Furry, Michele Schaare, Andy Cooper and Glenn Tobey to discuss any and all ideas as your support team to PRM and present to you today, March 13, 2009. Michele and Ross outlined ideas that were presented by some of the Executive Board Members which were brought up at the August 15, 2008 meeting, along with many other ideas. We tried to see if they made sense. Following that meeting, arrangements were developed to meet with Munich Re America and AM Wins at the PRM office. Wednesday, October 01, 2008 > Meeting was held with: Mike Davis Fred Rinaldi Jeff McNatt Ross Furry Judy Hearn Michele Schaare Andy Cooper Glenn Tobey - Munich Re America - Munich Re America - AM Wins - Executive Director - Assistant Executive Director - President - WRM - Senior Vice President - WRM - Tobey & Associates 1 Wednesday, October 01, 2008 (Con't) Many ideas and new concepts were brought to the table for discussion. I am sure that Ross, Michele, Andy and I have many questions as to how some of these options, changes (if any), and concerns would and could occur. I have provided a summary from my perspective of what we discussed along with possible changes to the PRM Program to benefit all members. I will also mention, I think that all of us, Ross, Michele, Andy and I feel we do not want to alter our outstanding coverage's we offer to PRM. 2 Submitted by: Glenn Tobey Insurance Advisor A). How did we get here in having these discussions? B) . Fuel to the Fire C). Change tor the sake of change: If it's not broken, why fix it? A. Does Anyone Disagree with the Following: 1) . Florida Amendment One: Passed January 29, 2008 2). Roll -Back in Municipal Revenues in 2008 - Worse in 2009 3). Layoff of existing Staff to make up revenue shortfalls 4). Salaries with minor increases if not flat 5). Sub contract for Services; i.e. Garbage, Fire and Police for City Government 6). Economy: Foreclosures of Florida Housing Market a) . Lack of property taxes 7). Change in Municipal Government Positions a) . City Managers: County Administrators b) . Council Changes c). Review and reduce all costs where possible 8) . Nine of our Forty Eight members have given notice. a). One has recinded and another to follow 9). Three of the four largest members of PRM still have their notices out 10). Long term members have not researched the market place and want to know if PRM is the best program for them 11) . Enormous pressure by competition a). FMIT: Florida Municipal Insurance Trust b). PGIT: Preferred Governmental Insurance Trust c) . Local Brokers 3 Does Anyone Disagree with the Following: (Con't) 12) . Competition through brochures are sent out monthly and at times, it seems, weekly. Database is large and sophisticated Newspaper articles along with individual letters are sent out to our clients. 13). Competition uses alternative programs: First Dollar, Deductible Programs, Self Insured Retentions. 14) . Competition boasts about surplus, number of members insured and benefits they can offer. B. Fuel to the Fire 1). Presidential Election in 2.5 weeks. 2). Stock market in the last 30 days dropped from 13.800 to 9.500, a 32% decline in the market. 3). Financial collapse of the marketplace, Freddie Mac / Fannie May 4). Public School consolidation and no growth in Revenue Tax 5). Foreclosures on houses — Worst ever 6). Lack of Jobs and Layoffs 7). Mortgage Money almost non - existent for home buyers a) . No new tax revenues 8). Small, even large business lack of borrowing power to generate economy 9) . No Stimulus packages of investments 10). No internal growth for companies 11). State of California can't make payroll: 70 Million Bailout, Who is next? 12) . AIG Bailout — 85 Billion a) . Lexington Insurance Company 13). Hartford could be in trouble 14). Workers compensation rates in Florida could increase in 2009 15). Lehman Brothers — 26,000 employees fired, pensions lost 16). Individual Savings, Pensions Plans, Medical Insurance, 401K 17). Washington Mutual and Wachovia 18). Airlines Industry 4 C. Change for the Sake of Change! If it's not broken, why fix it? What Do You Think? 1). IT'S TIME TO CHANGE 2). WE CAN'T DO THE SAME OLD, SAME OLD ANYMORE! 5 Munich Re America Package Program 1). Provide straight line coverage's and /or combination of both a) . Property b) . General and Automobile Liability c). Workers Compensation d). Professional Liability e) . Crime Property 1A. Increase maintenance deductibles to $25,000 per occurrence, with possible aggregate up from $1,000. 2A. Increase property retention to $500,000, up from $200,000 and reduce limit to $1,000,000 down from $2,500,000. 3A. Provide tier limits on top of that. (Will explain later) 4A. Eliminate Wind deductible - Use 1 million deductible General and Automobile Liability 1B. Change limits to Sovereign Immunity. Limits of $100,000/200,000 and provide Federal and Out of State Coverage only. 2B. Keep same program and increase self insured retentions to $500,000 up from $200,000. 6 Workers Compensation 1C. Eliminate from program 2C. Take a $1,000,000 Self Insured Retention Professional Liability 1D. Eliminate from program 2D. Develop separate program 3D. Purchase separately outside of the above two Crime Insurance 1D. Eliminate from program 2D. Develop separate program 3D. Purchase separately outside of the above two Excess Programs Property: Tier Approach See Attached LCPA COUNTIES CITIES COSTAL NON - COSTAL Values 387,000,00 Estimate 512,000,00 1,216,000,00 472,000,00 Liability Program Provide State Claims Bills and Federal Out of State Limits $100,000 per person / $200,000 per occurrence $2,000,000 General Limit Workers Compensation 1,643,000,00 1). Manual Premium less discounts and Modification Factor Plus overall profit/loss credits 2). Large Deductible Program: $200,000, with or without aggregate 3). Increase Self Insured Retention to $1,500,000 from $1, 000,000. 8 Property Markets: Wholesaler : CRC : AM Wins Lexington Factory Mutual ACE Bermuda AXIS Endurance LLOYDS ARCH RSUI Westchester Iron Shore PSLIC Liability Markets: Munich Re America Travelers AIG Hartford General Re Lloyds Liberty Mutual Chubb Workers Compensation: Public Officials: Safety National Liberty Mutual Midwest Employers Lloyds AIG Munich Re America Chubb Loss Fund Analysis Valued at August 31, 2008 $13,900,000 $8,000,000 $1,745,000 $9,745,000 63% Less Specific $ 932,000 Claims $8,813,000 Total Claims: 1,707 Reserve Claims: 56 Paid Claims 1,651 $16,150,000 $25,717.000 $8,800,000 $34,517,000 71% Less Specific $ 23,000,00 Claims: $11,517,000 Total Claims: 2,048 Reserve Claims: 121 Paid Claims: 1,927 $25,500,000 $8,100,000 $4,300,000 $12,400,000 54% Less Specific $ 332,000 Claims: $12,068,000 Total Claims: Reserve Claims: Paid Claims 2,107 353 1,754 10 Loss Fund Analysis (Con't) Valued at August 31, 2008 $14,400,00 $884,000 $2,691,000 $3,575,000 25% Less Specific Claims: $ -0- $3,575,000 Total Claims: Reserve Claims: Paid Claims 561 343 218 Projected $3,575,000 divided by 5 months = 715,000 x 7 = $5,000,000 PLUS $3,575,000 = 8,575,000: Loss Fund: $14,400,000 or 59% Loss Ratio Total Claims: Reserve Claims: Paid Claims 2,131 823 1,308 11 Summary 1,707 2004 to 2005 $13,900,00 $8,813,000 $5,087,000 2,048 2005 to 2006 $16,150,00 $11,517,000 $4,633,000 2,107 2006 to 2008 18 Months $22,500,00 $12,068,000 $10,432,000 2,131 2,000 1 2008 to 2009 (Projected) $14,400,00 $8,575,000 $5,825,000 Totals: $66,950,000 $40,973,000 $25,977,000 1). 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N wN W or.o i-oW ft 4 o PWWW ."it,., ot N .;::: .900fl.00=14., ON N.4,&, 9 7:1:: -- 0 w.At o o ID MO, 0 0. ?mow° -4128g " ' r- !!MIV.--gr* 0 0 01 ... i...1,:.. *AVMS'S 0000 iVV:om100 i44* 0000wm.rommr*De 81444,424Eg w o motiliku ov 0 0 0' N 0 ID 00 ::02 0 Gallagher Centre, TWO Pierce Place, Itasca, IL 60143 e4rFi,;iw ter-saA ,Int...teNWNMOWV Oart:Fre A 100 W. WO OZW AO • Q** Privileged & Confidential Summary of Report 1). Simplify the Insurance Application for all Members 2) . Take control over our own destiny and not the insurance companies 3). Advertise our Progress and Success 4). Utilize Agents and Brokers in specific areas we want to prospect 5) . Develop a "Newsletter" 6) . Work with local Newspapers 7). Emphasize coverage's and benefits of PRM to Members and Prospects 8). Continue with face to face meetings with Clients and Prospects 9). Stress "All Benefits "; Loss Control, Claims Handling and Hot Lines ANALYSIS 10). We will strive to become the fastest growing pool within the , state of Florida 11.) We must continue to service the needs of our existing members yet enhance our market share of other Public Entity Clients 12.) We must never lose sight of our dedication to our PRM members who have been long lasting supporters of the pooling concept 13.) We have the best people for the job and will continue to develop new strategies not only for the growth of PRM, but for the survival of PRM 14.) We must sell our products and benefits which in reality are far superior to our competition. However, make no mistake, they are coming after us 13 15.) That is why we must be proactive and not reactive 16.) The potential growth of the Public Entity Sector in Florida is large Not to mention: 500 Cities 67 Counties 67 School Districts Special Taxing Districts Water Treatment Facilities Airports Not - For - Profit Facilities 17.) We are currently developing strategies to develop this growth by writing new members 18.) Between Michelle, Andy, Sonia, Shane and myself we have over 100 years of Florida Public entity experience. Not to mention our strategy to utilize a sales force of local agents and specific experienced individuals throughout the state 19.) We will continue to combat the challenges of our competition especially PIGIT and FMIT 20.) By providing a larger membership, rates and coverage enhancements will benefit the entire pool 21.) We will have more acdountability to our existing members with more face to face meeting and enhanced training 22.) Enhanced Reports will be generated to show comparisons of price, coverage, and services provided 14 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 REGULAR AGENDA SUMMARY 6. Chairperson's Item A. Executive Director Evaluation John Litton, Chairperson The Board of Directors is responsible each year for the annual performance evaluation of the Executive Director. The annual review provides the basis for any merit increase awarded by the Board. The performance appraisal is a two -tier process that includes an evaluation by each member along with a more thorough evaluation by the Executive Committee. The latter is due to their generally having more interaction with the Executive Director and observation in dealing with policy issues for the pool as a whole. 7 Legal Update Donovan Roper, Esquire A. FL Supreme Court Case: Parents Unable to Waive Liability for Minors in Commercial Activity Scenarios Mr. Roper will review the recent case disapproving use of minors releases, executed by their parents pre- incident, in "commercial activity" scenarios. Lk; ctJ C. l , r\s._ 4 1 . /9 LI z�J ■P PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 CONSENT AGENDA SUMMARY 1. Request Approval of November 14, 2008 Board Meeting Minutes Background: Meeting Minutes attached Request Approval of Treasurer's Report as of December 31, 2008 Background: Financial Reports Attached Board Action: Approved Denied Deferred Other L" 1. BOARD MEETING MINUTES 11/14/08 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING Terrace Hotel, Lakeland, FL November 14, 2008 MINUTES Attendance: Kathy Bennett, City of Avon Park; Lester Baird, Barron Water Control District; Steve Baumgartner, City of Brooksville; Ted Byrd, City of Clewiston; Jerry Hill, DeSoto County BOCC; Mike Sheppard, City of Eustis; Mary Ann Dotson, Glades County BOCC; Denise Manuel, Gulf County BOCC; Jennifer Valdes, City of Gulfport; John Minor, Highlands County BOCC; Nancy Beelman, Town of Kenneth City; Lisa Smith, City of LaBelle; Guy Shields, Town of Lady Lake; John Litton, City of Lake Mary; Arlene Tuck; Town of Lake Placid; Pamela Conner, Lee County Port Authority; Fred Moody, Levy County BOCC; Gerald Wilson, Town of Longboat Key; Carol Rogers, City of Longwood; Jeff Sutton, City of New Port Richey; Steve Gailbreath, City of North Port; Sharon Allison, City of Okeechobee; Robbie Chartier, Okeechobee County BOCC; Connie Collins, City of Oviedo; Derrek Moore, City of Pahokee; Phil Wickstrom, City of Punta Gorda; Martin Lange, Sarasota /Manatee Airport Authority; Mike Eastman, City of Sebring; Gary Behnke, City of St. Pete Beach; Dana March, Sun 'n Lake of Sebring Improvement District; Woody Hubbard, City of Temple Terrace; Katrina Bouthot, City of Zephyrhills . Elizabeth Atkinson attended as a non - voting representative from the City of Indian Rocks Beach. Absent: Town of Belleair, City of Belle Glade, City of Crystal River, City of Fort Meade, Hardee County BOCC, Hendry County BOCC, Holmes County BOCC, City of Lake Wales, City of Moore Haven, City of Port Richey, City of Safety Harbor, South Florida Conservancy District, City of South Pasadena, City of Tavares, City of Wauchula, City of Winter Garden Chairperson John Litton called the meeting to order at 10:03 a.m. with a quorum present and welcomed representatives from new members, Barron Water Control District and Gulf County BOCC, who joined the Pool on 10/1/08. Consent Agenda 1. Request Approval of August 15, 2008 Board Meeting Minutes 2. Request Approval of Treasurer's Report as of September 30, 2008 Carol Rogers made a motion to approve the consent agenda. Sharon Allison seconded the motion and it was unanimously approved. Regular Agenda 3. Executive Director's Report A. 2009 On -Site Property Appraisals — PRM requires on -site appraisals every five years and values are trended to the appropriate dollar amount the other years. Four members are scheduled for on -site appraisals in 2009: DeSoto County BOCC, City of Lake Mary, City of Okeechobee and City of St. Pete Beach. Members were reminded that appraisals and trended reports should be reviewed carefully. B. Update on Program Structure and Renewal — Mr. Furry advised that meetings were held with the broker and insurance adviser, as well as the Executive Committee, to review ideas on changing PRM's program structure. Breaking out Workers' Compensation from other lines would allow prospects to join the Pool with a WC only program. AmWins has been secured as the excess property wholesaler. To offset the administrative cost for the PRM office, surplus interest earnings will be utilized and not allocated to members. Under consideration are higher SIRs for catastrophic losses and WC claims, as well as higher deductibles on property, liability, and Workers' Compensation. (Representative from the City of Punta Gorda entered the meeting at 10:13 a.m.) The Chairperson indicated that, while we must change the way we are doing business, we do not want to compromise the integrity of the By- Laws and structure, meaning that the Pool is still run by the members. The Executive Director thanked staff and the Town of Lady Lake for their efforts in presenting the Police Liability Seminar. (Representatives from the City of Pahokee and City of North Port entered the meeting at 10:17 a.m. with the City of Clewiston representative arriving at 10:20 a.m.) 4. Broker's Report Mr. Cooper reviewed areas of the restructured PRM program, including increased SIRs, a separate Workers' Compensation line, and how property is structured. The new property wholesale broker has fresher ideas on how to better approach the market. At the end of the month, Mr. Cooper will accompany the wholesale broker to London to meet with underwriters. All renewal information has been received and the broker is in the process of obtaining quotes from the markets. 2 A. AD &D — PRM Group Policy — Hartford was contacted on their interest in supplying a group policy for PRM as the majority of members with individual policies are currently with Hartford. AIG was also considered but, although competitive, with their financial difficulties, it was decided not to pursue this option. Hartford offered discounts, depending on the number of members enrolled. The broker is also evaluating ACE and will keep members advised of status. 5. Insurance Advisor's Report A. Homeowners /Auto Insurance — Pilot Program — The City of Punta Gorda and Hardee County BOCC agreed to participate in the pilot program. Mr. Tobey will meet with their representatives and review letters which have been prepared for their employees, reinforcing that the program is strictly voluntary and not sponsored by the member, nor tied to PRM in any way. If there is enough interest, the program will be extended to the entire membership. The Chairperson asked the broker and insurance advisor to report on marketing aspects. Letters and calls were made to various prospects. A professional marketing brochure will be distributed via mail and personally. World Risk Management intends to employ a marketing individual. Cities and counties will be targeted by identifying and working with their local agents. To be more competitive and help reduce costs, different options have been investigated including higher deductibles, stand alone WC program, certain coverages out of the package, and using higher SIRs to be funded by Loss Fund dollars. Responding to Mr. Sutton's query if competitors have code compliance upgrade coverage, the broker indicated their coverage is limited, however, it is provided under the PRM program. 6. Guest Speaker: M. Todd Merritt, Esquire A. Florida Supreme Court Case — Attorney Fees — Mr. Merritt provided background on previous cases involving payment of attorney fees for WC claims. In Murray v. Mariners Health /ACE USA, the claimant challenged the constitutionality of Florida Statutes, Section 440.34, governing attorney fees. The Florida Supreme Court noted judges must be vigilant to award only reasonable and necessary fees. This decision provides payment of attorney fees at an hourly rate, rather than based on a percentage of the settlement. 3 7. Legal Update A. Mandatory Medicare Secondary Payer Reporting Requirements — Mr. Roper advised that Congress passed the Medicare, Medicaid and SCHIP Extension Act. The non -group health provider portion, which includes liability, no fault insurance (PIP), self insurance, and Workers' Compensation, becomes effective 7/1/09. The legislation is intended to ensure that the financial burden of payment for injuries does not get shifted to Medicare unless Medicare is the appropriate payer source. Gallagher Bassett will be complying with reporting requirements to the Centers for Medicare and Medicaid Services (CMS). Members are to advise Gallagher Bassett when they have a Medicare eligible employee or claimant. Mr. Roper reported on the Palm Beach County v. City of Boca Raton and City of Delray Beach case whereby the Cities tried to get an injunction against the County for use of ad valorem taxes to fund fire and rescue dispatch services, claiming they were being double taxed. The trial court agreed, but the Appellate Court reversed the decision. The Florida Supreme Court upheld the Appellate Court, finding for the County who proved their dispatch service provided additional benefits to the municipalities. 8. Board Member Items No items were presented for discussion. There was no public comment. Meeting adjourned at 11:44 a.m. Respectfully submitted, Judith A. Hearn Assistant Executive Director Secretary to PRM Board JAH:smb 0:\Judy \BD MTGS \Board of Directors Meeting 11 -14 -08 4 PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING NOVEMBER 14, 2008 @ 10:00 A.M. Avon Park, City of Barron Water Control District Belleair, Town of Belle Glade, City of Brooksville, City of Clewiston, City of Crystal River, City of DeSoto County BOCC Eustis, City of Fort Meade, City of Glades County BOCC Gulf County BOCC Gulfport, City of Hardee County BOCC Hendry County BOCC Highlands County BOCC Holmes County BOCC Kathy Be Le er Baird liduAi\k J. P. Murphy Vivian Hunter Steve Baumgartner Ted Byr Phyllis Kirk Robert Giesler enise M uel iirek tat" Valdes Jane Long Ricky Helms LAKELAND, FLORIDA Sarah. Adelt June Shivers Susan Lee Patrice Monaco Margaret Bosack Laurie Lindsey Linda St' on ‘01.1, Paul Erickson Ann Isaacs Don Butler Danny Weeks Raymon Thomas Monty Merchant Indian Rocks Beach, City of Kenneth City, Town of LaBelle, City of Lady Lake, Town of Lake Mary, City of Lake Placid, Town of Lake Wales, City of Lee County Port Authority Levy County BOCC Longboat Key, Town of Longwood, City of Moore Haven, City of New Port Richey, City of North Port, City of Okeechobee, City of Okeechobee County BOCC Oviedo, City of Pahokee, City of Port Richey, City of Nancy B elman Gerdl'd Wilson Dawn Jackson Maxine Brantley Bert Valery Muriel H. Whitman Bill Vance Jacqueline Soya Phil Williams Jacqueline Martin Thomas Kelley Carol Rogers Melissa Arnold St-ve Gailbreath aron Allison Sherry Borgsdorf Brian Whitehall Robbie Chartier Derrek Moore Shirley Dresch Stephanie Marsh - Corinthian Pam Zeigler Punta Gorda, City of Safety Harbor, City of Sarasota/Manatee Airport Authority Sebring, City of South Florida Conservancy South Pasadena, City of St. Pete Beach, City of Sun n' Lake of Sebring Tavares, City of Temple Terrace, City of Wauchula, City of Winter Garden, City of Zephyrhills, City of f• /4 r Phil Wickstrom Dan Andrews David Davis James Graham dirw-. 7* David Drury Alan Zimmet John Schussler Mike Eastman Elsie King Mike Bonfield Dana March Ileana Martinez Crissy Bublitz Lori Tucker vAllr Woody Hu i ar,V James Braddock Frank Gilbert fra-th-r Kim D. Leinbach Terri Svendsen Peggy Carpenter trina Bouthot Rick Moore SIGN IN SHEET GUESTS / ADDITIONAL ATTENDEE NOVEMBER 14, 2008 Name Entity / Company Signature a.0 Aeueetve,":71 IP wO ca. 03 di G6:,, elAt lvtlargock..sewe,/, kuc his � -�, M -orN (� �.,,c is4 is . mozmckc. &L,Ar ecc.)■ \-cyN CI_Droes"Yrs- 2. TREASURER'S REPORT AS OF 12/31/08 PUBLIC RISK MGMT OF FL BALANCE SHEET DECEMBER 31, 2008 CURRENT ASSETS PETTY CASH $ 75.00 OPERATING - BB & T 57,942,461.91 A/R MEMBERSHIPS (162,664.03) A/R TRADE 3,218.46 A/R - PRM GR HLTH 61,492.01 A/R CONSULTANT FEE- MEMBERS 4,530.19 A/R- REINSURANCE RECOVERIES (13,033,851.16) A/R OTHER 2,254.66 A/R -STATE W/C ASSESSMENT 559,008.08 A/R- APPRAISALS 767.00 A/R - ADDITIONAL INSURANCE 501.21. A/R - SCHOLARSHIP PROGRAM 8,705.00 DUE FROM MEMBERS 1,750,000.00 STATE ADMIN. FUND 1,941.67 TOTAL CURRENT ASSETS 47,138,440.00 PROPERTY AND EQUIPMENT FURNITURE & FIXTURES 33,422.72 LESS: ACCUM. DEPRECIATION (31,038.77) OFFICE MACHINES & EQUIPMENT 63,981.28 LESS: ACCUM. DEPRECIATION (35,324.36) AUTOMOBILE 116,538.79 ACCUMULATED DEPRECIATION (51,547.93) TOTAL PROPERTY & EQUIPMENT 96,031.73 OTHER ASSETS PREPAID INSURANCE 4,979,102.38 PREPAID FLOOD INSURANCE 94.49 PREPAID EXPENSES 24,634.79 DEFER MEMBER CONTR- 1987 -89 183,808.00 DEFER MEMBER CONTR - 1989 -90 295,679.00 DEPOSITS 5,665.06 TOTAL OTHER ASSETS 5,488,983.72 TOTAL ASSETS LIABILI1'1ES ACCOUNTS PAYABLE $ 225,828.81 A/P - GALLAGHER/RISX -FACS 295,576.23 FEDERAL TAXES PAYABLE (251.66) PEBSCO PAYABLE (223.90) A/P EMP LIFE INS 71.65 A/P - OTHER 4,840.49 A/P - LOSS PREVENTION 14,933.73 ACCRUED VACATION 41,121.55 ADVANCE FROM REINSURER 4,472,468.05 CLAIMS PAYABLE - 1987 -89 70,383.76 CLAIMS PAYABLE - 1990 -91 (18,356.80) CLAIMS PAYABLE - 1991 -92 (62,603.66) CLAIMS PAYABLE - 1992 -93 72,983.51 CLAIMS PAYABLE - 1993 -94 (51,340.64) CLAIMS PAYABLE - 1994 -95 38,055.26 CLAIMS PAYABLE - 1996/97 (15,743.80) CLAIMS PAYABLE - 1997/98 (1,651,498.27) CLAIMS PAYABLE - 1998/99 (89,073.52) CLAIMS PAYABLE - 1999/00 (291,067.02) CLAIMS PAYABLE - 2000/01 (526,030.68) CLAIMS PAYABLE - 2001/02 (583,481.59) CLAIMS PAYABLE - 2002/03 544,421.40 CLAIMS PAYABLE - 2003/04 (1,557,501.10) CLAIMS PAYABLE - 2004/05 1,073,460.39 CLAIMS PAYABLE - 2005/06 (2,588,281.64) CLAIMS PAYABLE - 2006/08 20,997,548.30 CLAIMS PAYABLE - 2008/09 (1,856,593.44) NONCURRENT CLAIMS PAYABLE (13,314,538.00) SUSPENSE - CLEARING ACCOUNT 13,314,538.00 $ 52,723,455.45 PUBLIC RISK MGMT OF FL BALANCE SHEET DECEMBER 31, 2008 TOTAL LIABILI I'IES 18,559,645.41 CAPITAL FUND BALANCE REVENUE IN EXCESS OF EXPENSE 37,090,682.87 (2,926,872.83) TOTAL CAPITAL 34,163,810.04 TOTAL LIABILTfIES & CAPITAL $ 52,723,455.45 REVENUES MEMBERSHIP ASSESSMENTS INTEREST INCOME MISCELLANEOUS INCOME TOTAL REVENUES PUBLIC RISK MGMT OF FL INCOME STATEMENT FOR THE THREE MONTHS ENDING DECEMBER 31, 2008 CURRENT MONTH YEAR TO DATE $ (58,181.75) $ 4,576,584.62 36,725.09 183,690.61 0.00 0.00 (21,456.66) 4,760,275.23 EXPENSES OFFICERS' SALARIES 8,935.25 35,635.22 OFFICE SALARIES 35,599.72 118,420.14 PAYROLL TAXES 2,956.93 9,620.71 EMPLOYEE RETIREMENT BENEFITS 5,428.22 17,621.26 HEALTH INSURANCE - OFFICER 1,569.37 4,708.11 HEALTH INSURANCE - OFFICE 9,757.03 28,814.97 LIFE INSURANCE - OFFICER 81.78 245.34 LIFE INSURANCE - OFFICE 11.31 33.93 LTD INSURANCE 2,138.68 3,327.21 LEGAL FEES 1,500.00 5,484.99 LEGAL -PRE- DEFENSE 0.00 0.00 AUDIT FEES 0.00 0.00 ACTUARIAL STUDY 0.00 0.00 WORKERS COMP CLAIMS AUDIT 0.00 0.00 APPRAISAL FEE EXPENSE 0.00 0.00 TELEPHONE 1,511.01 4,099.40 TEMPORARY LABOR 0.00 0.00 COPY MACHINE LEASE 203.00 609.00 REPAIRS & MAINT. - EQUIPMENT 0.00 0.00 OFFICE SUPPLIES 461.30 3,017.53 NEWSLETTER 0.00 832.50 POSTAGE 312.91 1,998.99 PRINTING 0.00 3,673.00 LOSS PREV EQUIP & SUPPLIES 1,125.08 2,593.81 MARKETING & PROMOTION 0.00 0.00 MEETING EXPENSE 0.00 2,947.40 MISCELLANEOUS EXPENSE 332.89 887.56 CONFERENCE MEMBER ROOM EXPENSE 0.00 0.00 TRAINING /SEMINAR PRESENTATION 0.00 410.20 TOTAL EXPENSES REVENUE IN EXCESS OF EXPENSE 71,924.48 244,981.27 $ (93,381.14) $ 4,515,293.96 STAFFING PUBLIC RISK MGMT OF FL EXPENSES TO BUDGET 04/01/09 - 03/31/10 FOR THE NINE MONTHS ENDING DECEMBER 31, 2008 MONTHLY MONTHLY Y -T -D Y -T -D TOTAL YEAR % of YTD ACTUAL BUDGET ACTUAL BUDGET BUDGET ACTUAL SALARY RELATED EXPENSES OFFICER'S' SALARIES 8,935.25 11,686.00 106,204.81 105,174.00 140,232.00 75.74% OFFICE SALARIES 35,599.72 47,097.25 404,123.81 423,875.25 565,167.00 71.51% PAYRLL TAXES 2,956.93 4,501.25 37,385.74 40,511.25 54,015.00 69.21% EMPLOYEE RETIREMENT BENEFIT: 1,618.70 6,042.00 40,504.79 54,378.00 72,504.00 55.87% HELATH INSURANCE- OFFICER 1,569.37 1,783.00 13,235.07 16,047.00 21,396.00 61.86% HEALTH INSURANCE- OFFICE 9,434.06 10,375.00 83,945.94 93,375.00 124,500.00 67.43% LIFE INSURANCE- OFFICER 81.78 83.67 725.58 753.00 1,004.00 72.27% LIFE INSURANCE- OFFICE 181.47 167.92 1,526.40 1,511.25 2,015.00 75.75% LTD INSURANCE 2,138.68 1,005.25 10,271.34 9,047.25 12,063.00 85.15% TOTAL SALARY RELATED EXPENSE 62,515.96 82,741.33 697,923.48 744,672.00 992,896.00 70.29% GENERAL EXPENSES LEGAL FEES 1,500.00 1,250.00 16,757.74 11,250.00 15,000.00 111.72% LEGAL -PRE DEFENSE 0.00 416.67 0.00 3,750.00 5,000.00 0.00% AUDIT FEES 0.00 2,583.33 4,300.00 23,250.00 31,000.00 13.87% ACTUARIAL STUDY 0.00 1,250.00 0.00 11,250.00 15,000.00 0.00% APPRAISAL FEE EXPENSE 0.00 481.25 4,312.50 4,331.25 5,775.00 74.68% AUTO EXPENSE 273.68 400.00 4,675.22 3,600.00 4,800.00 97.40% TRAVEL - EXPENSE 2,667.40 2,500.00 37,796.83 22,500.00 30,000.00 125.99% ASSOCIATION MEMBERSHIPS 350.00 166.67 870.25 1,500.00 2,000.00 43.51% DUES & SUBSCRIPTIONS 290.00 266.67 1,699.80 2,400.00 3,200.00 53.12% EDUCATION/TRAINING /CONFER 0.00 2,500.00 19,329.90 22,500.00 30,000.00 64.43% OFFICE LEASE 6,376.24 6,311.33 56,457.56 56,802.00 75,736.00 74.55% JANITORIAUCLEANING 350.00 316.67 2,450.00 2,850.00 3,800.00 64.47% OFFICECOMPUTER EQUIPMENT 1,187.50 1,500.00 17,355.61 13,500.00 18,000.00 96.42% TELEPHONE 1,511.01 2,166.67 14,766.08 19,500.00 26,000.00 56.79% COPY MACHINE LEASE 203.00 250.00 1,827.00 2,250.00 3,000.00 60.90% REPAIRS & MAINT. - EQUIPMENT 0.00 166.67 0.00 1,500.00 2,000.00 0.00% OFFICE SUPPLIES 461.30 1,166.67 13,007.95 10,500.00 14,000.00 92.91% NEWSLETTER 0.00 333.33 2,497.50 3,000.00 4,000.00 62.44% POSTAGE 312.91 1,083.33 7,465.70 9,750.00 13,000.00 57.43% PRINTING 0.00 166.67 3,816.17 1,500.00 2,000.00 190.81% INSURANCE- FLOOD /GENERAL 0.00 250.00 0.00 2,250.00 3,000.00 0.00% LOSS PREV EQUIP & SUPPLIES 1,125.08 1,833.33 6,683.81 16,500.00 22,000.00 30.38% MARKETING & PROMOTION 0.00 375.00 907.01 3,375.00 4,500.00 20.16% MEETING IMMENSE 0.00 2,008.33 8,870.86 18,075.00 24,100.00 36.81% MISCELLANEOUS EXPENSE 332.89 208.33 2,644.65 1,875.00 2,500.00 105.79% CONFERENCE MEMBER ROOM EX! 0.00 631.33 6,938.00 5,682.00 7,576.00 91.58% TRAINING /SEMINAR PRESENTATIOI 0.00 333.33 424.20 3,000.00 4,000.00 10.61% WEB SITE MAINT 0.00 400.00 0.00 3,600.00 4,800.00 0.00% INSURANCE CONSULTANT 18,166.67 18,166.67 163,500.03 163,500.00 218,000.00 75.00% TOTAL GENERAL EXPENSES 35,107.68 49,482.25 399,354.37 445,340.25 593,787.00 67.26% TOTAL OPERATING EXPENSES 97,623.64 132,223.58 1,097,277.85 1,190,012.25 1,586,683.00 69.16% PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 8. Board Member Items REGULAR AGENDA SUMMARY John Litton, Chairperson A. Election of Officers — June Board Meeting — The term of office for Vice Chairperson, North Representative and South Representative expire 9/30/09. Individuals interested in serving in either capacity for the 2 -year term, beginning 10/1/09, should submit their bios to the PRM office by May 1. Nominations from the floor will also be taken. Elections will be held at the June 19th Board Meeting. The next meeting will be held on June 19th during the Annual Conference at Marco Island. Public Comment: Discussion must be limited to a maximum of five (5) minutes per person. Adjourn Westlaw. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) H Supreme Court of Florida. Scott Corey KIRTON, etc., et al., Petitioners, v. Jordan FIELDS, etc., et al., Respondents. Dean Dyess, Petitioner, v. Jordan Fields, etc., et al., Respondents. H. Spencer Kirton, et al., Petitioners, v. Jordan Fields, etc., et al., Respondents. Nos. SC07 -1739, SC07 -1741, SC07 -1742. Dec. 11, 2008. Background: Personal representative of minor child's estate brought wrongful -death action against owners and operators of motor sports park, seeking award of damages regarding child's fatal accident while operating his all- terrain vehicle (ATV) at park. The Circuit Court, Nineteenth Judicial Cir- cuit, Okeechobee County, William Roby, J., gran- ted defendants' motion for summary judgment based on pre -injury release executed by child's fath- er on behalf of child. Personal representative ap- pealed. The District Court of Appeal, 961 So.2d 1127, reversed and certified a question of great public importance. Defendants filed application for review. Holding: The Supreme Court, Quince, C.J., held that a pre -injury release executed by a parent on be- half of a minor child is unenforceable against the minor or the minor's estate in a tort action arising from injuries resulting from participation in a com- mercial activity, disapproving Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590. Certified question answered; decision of District Court of Appeal approved and remanded. Anstead, J., specially concurred and filed opinion. Page 2 of 20 Page 1 Pariente, J., concurred and filed opinion. Wells, J., dissented and filed opinion. West Headnotes 111 Appeal and Error 30 X893(1) 30 Appeal and Error 30XVI Review 30XVI(F) Trial De Novo 30k892 Trial De Novo 30k893 Cases Triable in Appellate Court 30k893(1) k. In General. Most Cited Cases The enforceability of a pre -injury release executed by a parent on behalf of a minor child was a ques- tion of law arising from undisputed facts, and thus the standard of review was de novo. 121 Parent and Child 285 C=.8 285 Parent and Child 285k8 k. Possession and Control of Property of Child. Most Cited Cases The enforceability of a pre -injury release executed by a parent on behalf of a minor child concerns two compelling interests: that of the parents in raising their children and that of the state to protect chil- dren. 131 Constitutional Law 92 €1249 92 Constitutional Law 92X1 Right to Privacy 92X1(B) Particular Issues and Applications 92k1247 Family Law; Marriage 92k 1249 k. Parental Rights. Most Cited Cases Constitutional Law 92 €x4391 92 Constitutional Law © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 1,�r„•//.�,0h') .,,o�+l�.,> .....,1..,:,, + /...;..+ +. ,.... ..,n .._� .t:.D... r + —TTrrA AY r. o_:r ' I nnn 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4390 Parent and Child Relationship 92k4391 k. In General. Most Cited Cases Parental authority over decisions involving their minor children derives from the liberty interest con- tained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in the State Constitution. U.S.C.A. Const.Amend. 14; West's F.S.A. Const. Art. 1, § 23. 141 Parent and Child 285 (€)=.1 285 Parent and Child 285k1 k. The Relation in General. Most Cited Cases Parental rights with respect to child- rearing are not absolute, and the state as parens patriae may, in cer- tain situations, usurp parental control. 151 Parent and Child 285 €8 285 Parent and Child 285k8 k. Possession and Control of Property of Child. Most Cited Cases A parent's authority to execute a pre -injury release on behalf of a minor child does not fall within the purview of statute allowing a parent, acting as the natural guardian of a minor child, to settle the child's claim for amounts up to $15,000, which ap- plies to situations where a minor child already has a cause of action against another party. West's F.S.A. § 744.301(2). 161 Negligence 272 €1076 272 Negligence 272XV11 Premises Liability 272XVII(C) Standard of Care 272k1075 Care Required of Store and Business Proprietors 272k1076 k. In General. Most Cited Cases Page 3 of 20 Page 2 Business owners owe their patrons a duty of reas- onable care and to maintain a safe environment for the activity they provide. 171 Parent and Child 285 kz8 285 Parent and Child 285k8 k. Possession and Control of Property of Child. Most Cited Cases A pre -injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor's estate in a tort action arising from in- juries resulting from participation in a commercial activity; disapproving Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590. *350 William J. Wallace of William J. Wallace, P.A., Okeechobee, FL, Richard Lee Barrett and Ralph Steven Ruta, of Barrett, Chapman and Ruta, P.A., Orlando, FL, and Alan C. Espy of Alan C. Espy, P.A., Palm Beach Gardens, FL, for Petition- ers. Timothy J. Owens of Christensen, Christensen, Donchatz, Kettlewell, and Owens, LLP, Columbus, OH, on behalf of The American Motorcyclist Asso- ciation, for Amicus Curiae. Bard d. Rockenbach of Burlington and Rocken- bach, P.A., West Palm Beach, and Laurence C. Huttman of Rubin and Rubin, Stuart, FL, for Re- spondents. QUINCE, C.J. We have for review the decision of the Fourth Dis- trict Court of Appeal in Fields v. Kirton, 961 So.2d 1127 (Fla. 4th DCA 2007), which certified the fol- lowing question to be of great public importance: WHETHER A PARENT MAY BIND A MINOR'S ESTATE BY THE PRE - INJURY EXECUTION OF A RELEASE. We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const.F "I For the reasons discussed below, we an- swer the certified question in the negative and hold © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) that a parent does not have the authority to execute a pre -injury release on behalf of a minor child when the release involves participation in a commercial activity.fN2 FN 1. The Fourth District also certified conflict with the decision of the Fifth Dis- trict Court of Appeal in Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). However, subsequent to its decision in Lantz and subsequent to the certification of conflict, the Fifth District decided Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (Fla. 5th DCA 2008), where the Fifth District aligned itself with the Fourth District in Kirton. For those reasons and because the Fourth District certified a question providing us with an independent basis for jurisdiction, we do not address the certified conflict. FN2. We answer the certified question as to pre -injury releases in commercial activ- ities because that is what this case in- volves. Our decision in this case should not be read as limiting our reasoning only to pre -injury releases involving commer- cial activity; however, any discussion on pre -injury releases in noncommercial activities would be dicta and it is for that reason we do not discuss the broader ques- tion posed by the Fifth District. *351 STATEMENT OF THE CASE AND FACTS The instant action arises from the decision by the Fourth District Court of Appeal in Fields v. Kirton, 961 So.2d 1127 (Fla. 4th DCA 2007). The facts of the underlying action were detailed in the opinion of that court: Pursuant to a final judgment of dissolution of mar- riage, Bobby Jones was the primary residential parent for his fourteen year old son, Christopher. Page 4 of 20 Page 3 On May 10, 2003, the father took Christopher to Thunder Cross Motor Sports Park to ride his all terrain vehicle (ATV). To gain entry to the facil- ity and be allowed to participate in riding the ATV, Bobby Jones, as Christopher's natural guardian, signed a release and waiver of liability, assumption of risk, and indemnity agreement. While attempting a particular jump, Christopher lost control of his ATV, causing himself to be ejected. Tragically, he hit the ground with the ATV landing on top of him. He got up, walked a short distance, then collapsed and died. Chris- topher's mother, Bette Jones, was unaware that the father was permitting their son to engage in this activity. She was also unaware that approx- imately one month prior to the accident causing Christopher's death, he had attempted the same jump, resulting in a fractured rib and mild con- cussion. Id. at 1128. Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. ( "the Kirtons") as own- ers and operators of Thunder Cross Motor Sports. The amended complaint also named Dean Dyess as a defendant for his participation in the management of the park. The Kirtons then filed an answer and affirmative defenses to the amended complaint. In one of the affirmative defenses, the Kirtons argued that the claims raised by Fields were barred by the release and waiver executed by Mr. Jones on behalf of his son. The Kirtons thereafter filed a motion for summary judgment based on the release and waiver.FN3 The trial court entered an order grant- ing the Kirtons' motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim. FN3. Mr. Jones filed an affidavit in sup- port of the Kirtons' motion for summary © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. .1 / • . / • n _1 o r••■ ET n /1'1 /rinnn 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) judgment. In that affidavit, he admitted that he willfully and with full understand- ing executed the release on behalf of his minor child at Thunder Cross Motor Sports Park. He also stated that he understood that it was his intention to waive the right to sue for the death of Christopher and to be banned by the other terms as set forth in the general release. He further stated that he understood that by signing the general release, he was forever discharging the Kirtons for any and all loss or damage and any claim or demands on account of injury to Christopher or his property or resulting in the death of Christopher arising out of or related to the events, whether caused by the negligence of the releasees or other- wise. On appeal, the Fourth District reversed the trial court's order granting the motion for summary judg- ment. In doing so, the district court emphasized that the issue was not about a parent's decision on what activities are appropriate for his or her minor child, which is properly left to the parent. Instead, the is- sue concerned the "decision to absolve the provider of an activity from liability for any form of negli- gence ... [which] goes beyond the scope of determ- ining which activity a person feels is appropriate for their child." Id. at 1129. This is because the "effect of the parent's decision in signing a pre - injury *352 release impacts the minor's estate and the property rights personal to the minor." As a res- ult, the district court found that these rights could not be waived by the parents absent a basis in com- mon law or statute. Id. at 1129 -30. The district court found that there was no statutory scheme gov- erning the issue of pre -injury releases signed by parents on behalf of minor children. Because there is no basis in common law or statute, the district court found that the courts do not have the authority to `judicially legislate that which necessarily must originate, if it is to be law, with the legislature." Id. at 1130. Accordingly, the district court held that a parent could not bind a minor's estate by the par- Page 5 of 20 Page 4 ent's execution of a pre -injury release. In doing so, the Fourth District also certified the above question to be of great public importance and certified con- flict with the Fifth District Court of Appeal's de- cision in Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). ANALYSIS [1] The issue in this case is the enforceability of a pre -injury release executed by a parent on behalf of a minor child that binds a minor child's estate and releases an activity provider from liability. Because the enforceability of the pre -injury release is a question of law arising from undisputed facts, the standard of review is de novo. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts). The Kirtons and the amicus curiae FN4 supporting their position assert that a parent has a fundamental right to make decisions relating to the care of a minor child, and that right includes executing a pre - injury release on behalf of the minor child. The Kir- tons also argue that enforcing the validity of a pre - injury release is consistent with Florida courts that have ruled that a parent has the prelitigation right to forego settlement awards in favor of pursuing a lawsuit without court approval or appointment of a guardian ad litem. On the other hand, Fields con- tends that pre -injury releases are invalid because neither the common law nor the Legislature has given parents the authority to waive these substant- ive rights of a minor child. FN4. The American Motorcyclist Associ- ation. Parental Authority and the State's "Parens Pat - riae" Authority [2][3] The enforceability of a pre -injury release concerns two compelling interests: that of the par- © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. .. el 1 • . n r. • 1.m1■ r, n r n• r es 11 n innnn 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) ents in raising their children and that of the state to protect children. Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amend- ment to the United States Constitution and the guar- antee of privacy in article I, section 23 of the Flor- ida Constitution. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) ( "In light of this extensive pre- cedent, it cannot now be doubted that the Due Pro- cess Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. "); see also Beagle v. Beagle, 678 So.2d 1271, 1275 (Fla.1996) ( "The fundamental liberty interest in parenting is protected by both the Florida and federal constitutions. In Florida, it is specific- ally protected by our privacy provision. "). In fact, beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the United States Supreme Court has recognized that parents have a constitutionally protected interest in child rearing. In Troxel, the *353 United States Supreme Court further pointed to a presumption that fit parents act in the best interests of their chil- dren.... Accordingly, so long as a parent ad- equately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. 530 U.S. at 68 -69, 120 S.Ct. 2054; see also Von Eifj v. Azicri, 720 So.2d 510, 514 (FIa.1998) ( "Neither the legislature nor the courts may properly inter- vene in parental decision- making absent significant harm to the child threatened by or resulting from those decisions. "). [4] However, these parental rights are not absolute and the state as parens patriae may, in certain situ- ations, usurp parental control. In Global Travel Marketing, Inc. v. Shea, 908 So.2d 392, 399 (Fla.2005), we explained the concept of parens pat- Page 6 of 20 Page 5 riae as applied in this State: "Parens patriae," which is Latin for "parent of his or her country," describes "the state in its capa- city as provider of protection to those unable to care for themselves." Black's Law Dictionary 1144 (8th ed.2004). The doctrine derives from the common -law concept of royal prerogative, re- cognized by American courts in the form of legis- lative prerogative. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Bare :, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). The United States Supreme Court, upholding a state child labor law in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), re- cognized the parens patriae power when it stated that although the "custody, care, and nurture of the child reside first in the parents, ... the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or pro- hibiting the child's labor and in many other ways." Id. at 166, 64 S.Ct. 438 (footnotes omit- ted). In decisions over the past three decades, this Court has expressly relied on the state's parens patriae authority to protect children in two areas: (1) juvenile delinquency and dependency, see P.W.G. v. State, 702 So.2d 488, 491 (Fla.1997); State v. D.H., 340 So.2d 1163, 1166 (Fla.1976); In re Camm, 294 So.2d 318, 320 (F1a.1974); and (2) child custody and support. See Schutz v. Schutz, 581 So.2d 1290, 1293 (FIa.1991); Lamm v. Chapman, 413 So.2d 749, 753 (Fla.1982); Kern v. Kern, 333 So.2d 17, 19 (Fla.1976). Per- vasive statutory schemes cover each of these areas. See generally ch. 39, Fla. Stat. (2004) ( "Proceedings Relating to Children "); ch. 61, Fla. Stat. (2004) ( "Dissolution of Marriage; Support; Custody "); ch. 984, Fla. Stat. (2004) ( "Children and Families in Need of Services "); ch. 985, Fla. Stat. (2004) ( "Delinquency; Interstate Compact on Juveniles "). [5] Although there is no statutory scheme govern- ing pre -injury releases, the Kirtons argue that a par- © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. n c�_ • o____h— TT•T1IT r. (Le-- •-- o_:r — 1 /11 /111110 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) ent's execution of a pre -injury release falls squarely within the parent's authority to settle pursuant to section 744.301(2), Florida Statutes (2007). This statutory provision allows a parent, acting as the natural guardian of a minor child, to settle the child's claim for amounts up to $15,000. The Kir- tons reason that because at the time a parent signs a pre -injury release, the claim is worth less than $15,000, the parent's authority to execute a pre - injury release for a minor child falls within this sec- tion. Contrary to the Kirtons' assertion, a parent's authority to execute a pre -injury release on behalf of a minor child does not fall within the purview *354 of section 744.301(2). Section 744.301, Florida Statutes (2007), applies to situ- ations where a minor child already has a cause of action against another party. A pre -injury release is executed before any cause of action accrues and ex- tinguishes any possible cause of action. The absence of a statute governing parental pre - injury releases demonstrates that the Legislature has not precluded the enforcement of such releases on behalf of a minor child. See Global Travel Mk- tg., Inc. v. Shea, 908 So.2d 392, 400 (Fla.2005) (noting that the absence of a statutory scheme gov- erning a parent's agreement to binding arbitration on behalf of a minor child demonstrates that the Le- gislature has not precluded the enforcement of such agreements). However, we find that public policy concerns cannot allow parents to execute pre -injury releases on behalf of minor children. Florida Courts Although this is an issue of first impression for this Court, the district courts of Florida have addressed this matter, but their decisions have not been con- sistent. In Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998), the minor child's natural guardian filed suit against Iron Horse Sa- loon after the child was injured while operating a "pocket bike" on the Iron Horse premises. Id. at 591. The trial court granted Iron Horse's motion to dismiss the complaint based on the pre -injury re- Page 7 of 20 Page 6 lease executed by the minor child's guardian. On appeal, the Fifth District affirmed the trial court's order granting the motion, finding that the release was sufficient to bar the child's claim. Id. at 591 -92. However, the Fifth District's decision was based on the finding that the release clearly and unequivoc- ally relieved Iron Horse from liability. The district court did not focus on whether the guardian had au- thority to execute the pre -injury release on behalf of the minor. Id. In Gonzalez v. City of Coral Gables, 871 So.2d 1067 (Fla. 3d DCA 2004), the mother signed a pre - injury release so that the minor child could particip- ate in the Coral Gables Fire Rescue Explorer Pro- gram. After the child was injured, the mother filed suit and the trial court entered summary judgment in favor of the city•based on the release the mother had signed. The Third District affirmed and found that the release barred the mother's claim on behalf of the minor child. Id. at 1067 -68. The district court relied on a distinction the Fourth District made in Shea v. Global Travel Marketing, Inc., 870 So.2d 20, 24 (Fla. 4th DCA 2003), quashed, 908 So.2d 392 (Fla.2005), between community and school - supported activities and commercial activities. The Third District found that because the explorer pro- gram was a community- supported activity, the re- lease was enforceable. Gonzalez, 871 So.2d at 1067.FN5 The Third District similarly found a par- ent's execution of a pre -injury release on behalf of a minor child, for participation on the high school cheerleading squad, enforceable. See Krathen v. School Bd. of Monroe Cly., 972 So.2d 887 (Fla. 3d DCA 2007). In Krathen, the Third District again discussed the Fourth District's distinction in Shea between school - supported activities and commer- cial activities. Id. at 889. However, the Third Dis- trict's decision ultimately relied on this Court's finding in Shea that "parents have the authority to make the decision whether to waive a child's litiga- tion rights in exchange for participation in an activ- ity the parent feels is beneficial for the child." Id. at 889 (citing *355 Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 404 (Fla.2005)). © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) FN5. This Court in Shea found such a dis- tinction arbitrary as applied to parents' agreements to arbitrate but, in doing so, noted that it would not address this distinc- tion as applied to pre -injury releases. Shea, 908 So.2d at 403 -04 & n. 9. On the other hand, in Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (Fla. 5th DCA 2008), a case decided after Lantz, the Fifth District aligned itself with the Fourth District in the instant case and held that pre -injury releases are unenforceable as against public policy. Applegate involved a minor child who was injured while wakeboarding at a camp. In finding the parent's execution of the pre -injury re- lease unenforceable, the district court emphasized that its decision was limited to commercial enter- prises because "[t]hey can insure against the risk of loss and include these costs in the price of particip- ation." Id. at 1115. In Global Travel Marketing, Inc. v. Shea, the father brought a wrongful death action against a safari op- erator for the death of his son who was mauled by hyenas while on the safari. 908 So.2d at 395. Be- fore the safari, the child's mother signed a travel contract on behalf of herself and her son, which in- cluded a release of liability and an arbitration agreement provision. Based on the travel contract, Global Travel moved to stay the proceedings and compel arbitration of the father's claim, which the trial court granted. Id. On appeal, the Fourth Dis- trict reversed and found the arbitration clause unen- forceable as to the child based on public policy grounds. Id. at 396. However, this Court quashed the Fourth District's decision and found the arbitra- tion agreement enforceable against the minor or minor's estate in a tort action arising from the con - tract.FN° In doing so, this Court reasoned that if the courts required parents to seek court approval before entering into travel contracts that included arbitration agreements, courts would be second guessing a fit parent's decision. Id. at 404. The Court emphasized that parents who decide which activities their children can participate in may also Page 8 of 20 Page 7 decide on behalf of their children "to arbitrate a res- ulting tort claim if the risks of these activities are realized." Id. FN6. This Court noted at the beginning of its decision that the issue, as phrased by the Fourth District, only touched "upon binding arbitration and not on any broader contractual waiver of a tort claim brought on behalf of a minor." Id. at 394. It also distinguished pre -injury releases from ar- bitration agreements: "Whether a parent may waive his or her child's substantive rights is a different question from whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law." Id. at 401. We emphasized this distinction by noting that the nature of the waiver, whether it concerns a waiver of a legal claim or right or a waiver of the forum in which the claim is presented, "is a crucial considera- tion in determining whether the state's in- terest in protecting children renders the waiver unenforceable." Id. at 403. A federal district court in Florida in two separate cases also found that pre -injury releases signed by parents on behalf of their minor children were in- valid. See In re Royal Carribean Cruises Ltd., 459 F.Supp.2d 1275 (S.D.Fla.2006); In re Royal Carib- bean Cruises, Ltd., 403 F.Supp.2d 1168 (S.D.Fla.2005) (where both the father and minor child were injured on a jet ski that was owned by Royal Caribbean on the island of Coco Cay, Ba- hamas). In both cases, the federal district court re- viewed out -of -state precedent and found that in cases involving school - sponsored or community- run activities the courts upheld pre -injury releases, and in cases involving commercial activities the courts have found the releases unenforceable. In re Carribean Cruises Ltd., 459 F.Supp.2d at 1280; In re Royal Caribbean Cruises, Ltd., 403 F.Supp.2d at 1172. © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) Out -of -State Precedent Other states and federal courts have also addressed the propriety of a parent or *356 guardian's execu- tion of a pre -injury release on behalf of a minor child. In holding that pre -injury releases executed by parents on behalf of minor children are unen- forceable for participation in commercial activities, we are in agreement with the majority of other jur- isdictions. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621 (S.D.W.Va.2004) (finding a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent's minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 199 111.Dec. 572, 634 N.E.2d 411 (1994) (finding a parental pre -injury waiver unen- forceable in a situation where the minor child was injured after falling off a horse at a horseback rid- ing school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n. 3 (Me.1979) (stating in dicta that a parent cannot release a child's cause of action); Smith v. YMCA of Benton Harbor /St. Joseph, 216 Mich.App. 552, 550 N.W.2d 262, 263 (1996) ( "It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent's child. "); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding that where a child was injured while skate- boarding at a skate park facility, "a parent may not bind a minor child to a pre -injury release of a minor's prospective tort claims resulting from the minor's use of a commercial recreational facility"); Childress v. Madison County, 777 S.W.2d 1 (Tenn.Ct.App.1989) (extending the law that a par- ent could not execute a pre -injury release on behalf of a minor child to a mentally handicapped twenty- year -old student who was injured while training for the Special Olympics at a YMCA swimming pool); Munoz v. 11 Jaz, Inc., 863 S.W.2d 207 (Tex.App.1993) (finding that giving parents the power to waive a child's cause of action for person- Page 9 of 20 Page 8 al injuries is against public policy to protect the in- terests of children); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding that "a parent does not have the authority to release a child's claims before an injury," where the child was in- jured as a result of falling off a horse provided by a commercial business); Hiett v. Lake Barcroft Cmty. Ass'n., 244 Va. 191, 418 S.E.2d 894 (1992) (concluding that public policy prohibits the use of pre -injury waivers of liability for personal injury due to future acts of negligence, whether for minor children or adults); Scott v. Pac. W. Mountain Re- sort, 119 Wash.2d 484, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child parti- cipating in a ski school is contrary to public policy). Although there are jurisdictions where pre -injury releases executed by parents on behalf of minor children have been found enforceable, we note that the only published decisions where they have been upheld involved a minor's participation in school - run or community- sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990) (finding the pre -injury release executed by the fath- er on behalf of the minor child enforceable against any claims resulting from the child's participation in a school- sponsored event); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child's participation in public school extracur- ricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205 (1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit *357 sports activity from liability for negligence because the threat of liability would strongly deter "many individuals from volunteering for nonprofit organizations" because of the poten- tial for substantial damage awards). While this particular case involves a commercial © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) activity, we note that these jurisdictions that have upheld pre -injury releases have done so because community-run and school - sponsored type activit- ies involve different policy considerations than those associated with commercial activities. As the Ohio Supreme Court explained in Zivich, in com- munity and volunteer-run activities, the providers cannot afford to carry liability insurance because "volunteers offer their services without receiving any financial return." 696 N.E.2d at 205. If pre - injury releases were invalidated, these volunteers would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort. This Case The trial court in this case specifically relied on the case law that has upheld the enforceability of the pre -injury release executed by the father on behalf of the deceased minor child in granting a motion for summary judgment in favor of the Kirtons. In re- versing the trial court's order, the Fourth District first acknowledged that as part of the liberty in- terest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Con- stitution, parents have a right to determine what activities may be appropriate for the minor child's participation. However, the district court determ- ined that the "decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child." Fields, 961 So.2d at 1129. We agree. Although parents undoubtedly have a fundamental right to make decisions concerning the care, cus- tody, upbringing, and control of their children, Troxel, 530 U.S. at 67, 120 S.Ct. 2054, the question of whether a parent should be allowed to waive a minor child's future tort claims implicates wider public policy concerns. See Hojnowski, 901 A.2d at Page 10 of 20 Page 9 390. While a parent's decision to allow a minor child to participate in a particular activity is part of the parent's fundamental right to raise a child, this does not equate with a conclusion that a parent has a fundamental right to execute a pre -injury release of a tortfeasor on behalf of a minor child. It cannot be presumed that a parent who has decided to vol- untarily risk a minor child's physical well -being is acting in the child's best interest. Furthermore, we find that there is injustice when a parent agrees to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child is injured as a result of another party's negligence. When a parent executes such a release and a child is injured, the provider of the activity escapes liab- ility while the parent is left to deal with the finan- cial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that finan- cial burden. Therefore, when a parent decides to ex- ecute a pre -injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Moreover, a "parent's decision in signing a pre -injury release impacts the minor's es- tate and the property rights personal to the minor." Fields, 961 So.2d at 1129 -30. *358 For this reason, the state must assert its role under parens patriae to protect the interests of the minor children. [6] Business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide. See Hojnowski, 901 A.2d at 388. If pre -injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed. Id. Moreover, as a provider of the activity, a commercial business can take precautions to ensure the child's safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity. As the New Jersey Supreme Court stated in Ho- © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) jnowski: The operator of a commercial recreational enter- prise can inspect the premises for unsafe condi- tions, train his or her employees with regard to the facility's proper operation, and regulate the types of activities permitted to occur. Such an op- erator also can obtain insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discov- er hazardous conditions or insure against risks. Moreover, the expectation that a commercial fa- cility will be reasonably safe to do that which is within the scope of the invitation, is especially important where the facility's patrons are minor children. If we were to permit waivers of liabil- ity, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety. Id. (citations omitted). Based on these public policy concerns, it is clear that the pre -injury release executed by Bobby Jones on behalf of his now deceased son was unenforce- able because it prevented the minor's estate from bringing a cause of action against the commercial establishment that provided the activity which res- ulted in the minor's death. CONCLUSION [7] For the reasons set forth above, we hold that a pre -injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor's estate in a tort action arising from injur- ies resulting from participation in a commercial activity. Accordingly, we answer the certified ques- tion in the negative, approve the decision of the Fourth District, disapprove the Fifth District's de- cision in Lantz, and remand for proceedings con- sistent with this opinion. It is so ordered. Page 11 of 20 Page 10 ANSTEAD, PARIENTE, and LEWIS, JJ., concur. ANSTEAD, J., specially concurs with an opinion. PARIENTE, J., concurs with an opinion. WELLS, J., dissents with an opinion. CANADY and POLSTON, JJ., did not participate.ANSTEAD, J., specially concurring. I concur in the majority opinion and write separ- ately to emphasize that our holding is narrowly dir- ected at those commercial operators who wrong- fully and negligently cause injury to a child but seek to be relieved of liability for their misconduct by securing a pre- activity release from the child's parent. Of course, under today's holding commer- cial operators who properly conduct their opera- tions and cannot be demonstrated to have acted negligently *359 will continue to be free of liabil- ity. On the other hand, Florida's children and par- ents need not worry, after today's decision, that careless commercial operators may be immunized from their carelessness by the presence of an ex- culpatory clause in a ticket for admission. Finally, I also find the articulation of the policy considerations supporting today's decision set out in Judge Torpy's opinion for the Fifth District in Ap- plegate to be particularly instructive and persuas- ive: Exculpatory contracts are, by public policy, dis- favored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a gen- eral proposition, unambiguous exculpatory con- tracts are enforceable unless they contravene pub- lic policy. Id.; Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973); Re- statement (Second) of Torts § 496B. Appellants concede that the contract at issue here is unambiguous but urge that the general rule should give way to an overriding public policy of © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) protecting children from damages caused by neg- ligently imposed injuries. This argument finds considerable support in the decisional law across the country. We are persuaded by some of the reasoning advanced by these authorities and also offer our own rationale for our holding. Indisputably, Florida's public policy manifests a strong intent to protect children from harm. As parens patriae, the state's authority is broader than that of a parent's and may be invoked to lim- it parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 399 (Fla.2005). The expression of that policy most relevant here is the legislative limita- tion on parental authority to settle post -injury claims contained in section 744.301(2), Florida Statutes (2007). By requiring judicial approval of settlements over $15,000, the legislature has manifested a policy of protecting children from parental imprudence in the compromise of their claims for injury. Because parents' legal duty to support their children ends at or near the age of majority, the potential societal burden of an im- prudent settlement justifies judicial oversight of the settlement contract. The case of a pre -injury exculpatory clause may be distinguished from a post -injury settlement in one respect. In a pre -injury situation, there is no risk that financial pressure will induce parental imprudence. Instead, the parents' motivation is the potential benefit to the child derived from the child's participation in the activity. Theoretically, the prudent parent can weigh this benefit against the potential consequence of a negligently caused injury and determine whether it is in the child's best interest to execute an exculpatory clause and permit the activity. Motivations aside, however, the consequence of an imprudent decision is the same as in the post -injury context: a child will suffer injury for which society might ultimately bear the burden. Thus, the parents' interest is not necessarily consonant with those of society and the child. Page 12 of 20 Page 11 Although this potential societal cost is arguably a justification to invalidate all pre-injury exculpat- ory clauses, we discern significant reasons for a distinction when a child is the subject. A consent- ing adult has the ability to avoid potential injury by exercising personal caution *360 and mitigate the impact of future economic loss by purchasing disability and health insurance policies. Con- versely, children tend to throw caution to the wind during risky activities, resulting in a de- creased chance of avoiding injury caused by the negligence of others. More importantly, children have no ability to indemnify themselves for fu- ture economic losses like their adult counterparts, making them especially vulnerable after the par- ents' support obligation ends. As parens patriae, the state also has an interest in protecting chil- dren from the non- economic consequences of negligently- caused injury. A policy that enforces exculpatory clauses fosters an increased risk of injury through carelessness. For these reasons, al- though the scales of public policy might tip in fa- vor of the enforcement of exculpatory contracts involving consenting adults, we think they tip the other way when children are the subject. We emphasize that our holding is limited to com- mercial enterprises. They can insure against the risk of loss and include these costs in the price of participation. Applegate, 974 So.2d at 1114 -15 (footnote and cita- tion omitted). PARIENTE, J., concurring. I fully concur with the majority's conclusion that the pre -injury release signed by the father on behalf of his fourteen - year -old son, executed in order to "gain entry to the facility and be allowed to parti- cipate in riding the ATV in the Thunder Cross Mo- tor Sports Park," is invalid. The owners and operat- ors of the sports park, the Kirtons, raised the execu- tion of this release as a complete defense to the wrongful death action brought on behalf of the es- tate. I write to emphasize several points. First, as pointed © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. n 1 •. n _ _( TT'T •% KT n o_C — a . o_ :F — 2 /1 '1 P1(1110 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) out by the Fourth District, "[t]here is no basis in common law for a parent to enter into a comprom- ise or settlement of a child's claim, or to waive sub- stantive rights of the child without court approval." Fields, 961 So.2d at 1130. Second, the release in this case was all - encompassing, as it covered not just injuries occur- ring as a result of the activity of ATV riding, which itself could be considered inherently dangerous, but all negligent acts. The allegations of the complaint in this case, which we must accept as true, asserted in pertinent part that the ATV fourteen -year -old Christopher Jones was "racing and jumping" on "the course set up and maintained by Defendants" was recommended "only for use by those over the age of 16" by the manufacturer. Significantly, the allegations also asserted that "the subject four wheel all terrain vehicle was not designed by the manufacturer or recommended for racing or jump- ing on a course such as the course constructed and maintained by Defendants and/or Defendants' agents and employees." Moreover, the amended complaint alleged that the Kirtons had prior knowledge of Christopher Jones's limited experience based on a serious injury he sus- tained on the same course with the same ATV ap- proximately one month before: Defendants and/or their agents and employees knew or should have known that a fourteen year old with limited experience as a rider, such as CHRISTOPHER JONES, should not have been permitted to operate the subject 350 cc four wheel all terrain vehicle in the manner it was be- ing operated by him on the course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on May 10, 2003. This is partic- ularly the case given the fact that the last time CHRISTOPHER JONES operated the subject 350 cc four wheel all terrain *361 vehicle he operated it in the same manner and "missed the jump" while riding on the identical course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on April 6, 2003. On that date he Page 13 of 20 Page 12 was seriously injured such that he was removed from the Defendant's property by Fire Rescue personnel and was transported to the hospital for treatment. The amended complaint further alleged that the negligent design of the course and the failure to have a "flag man" to alert riders to the dangers of the course and to prevent the fatal injuries directly caused or substantially contributed to the death of Christopher Jones. As explained in the amended complaint: Dn May 10, 2003 while attempting to jump on De- fendants' course which was negligently construc- ted and/or maintained by Defendants through their agents and their employees, CHRISTOPH- ER JONES "missed the jump" so that he came up short and did not clear the jump. The front tires of the four wheel all terrain vehicle he was oper- ating hit the ground first and CHRISTOPHER JONES bounced over the handlebars, flipped off the four - wheeler to the right and the four - wheeler went to the left and then came back directly at him. Although there was supposed to be a flag man sta- tioned at the jump to alert riders of dangers on the course and to assist in rendering assistance to injured riders such as CHRISTOPHER JONES, there was no flag man stationed at the jump that CHRISTOPHER JONES was attempting to nav- igate when the accident occurred on May 10, 2003. Because the four - wheeler came back at CHRISTOPHER JONES after he was thrown off the vehicle, had a flag man been close enough to the jump, he would have been able to remove CHRISTOPHER JONES from harm's way before the vehicle hit and killed him. In distinguishing between risks inherent in the activity and separate acts of negligence, the Fourth District explained: The decision to absolve the provider of an activ- ity from liability for any form of negligence (regardless of the inherent risk or danger in the © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) activity) goes beyond the scope of determining which activity a person feels is appropriate for their child. The decision to allow a minor to par- ticipate in an activity is properly left to the par- ents or natural guardian. For instance, the de- cision to allow one's child to engage in scuba diving or sky diving involves the acceptance of certain risks inherent in the activity. This does not contemplate that a dive instructor will permit or encourage diving at depths beyond safe recre- ational limits, or that the pilot of the plane on a sky diving venture is intoxicated or otherwise im- paired, both situations which could cause injury to the minor. Id. at 1129. I agree with this distinction. Although the father accepted the risks inherent in ATV riding by allowing his son to participate in the activity, his acceptance did not contemplate that the defendants would act negligently as described in the amended complaint. Finally, I write to emphasize that this Court limits its decision to activities provided by commercial establishments because those were the facts presen- ted by this case. However, I do not agree with the reasoning of those cases cited by the majority that have found that all releases from liability for non- commercial activities are automatically valid. To me there is an important distinction between a re- lease to allow a child to participate in school activ- ities, such as cheerleading or football, *362 which could be considered inherently dangerous, and a blanket release that absolves the sponsor of liability from all negligent acts. As with commercial activit- ies, when a parent allows his or her child to parti- cipate in an inherently dangerous noncommercial activity, his or her acceptance does not contemplate that the activity provider will act negligently. WELLS, J., dissenting. While I agree that it would be a good policy to limit parental pre -injury releases of minors' claims for in- juries or death arising out of dangerous activities operated by commercial entities, until today this Court has never held that such a pre -injury release Page 14 of 20 Page 13 knowingly executed by a parent is unenforceable. Nor until this case was decided by the Fourth Dis- trict Court of Appeal, had a district court of appeal held such a pre -injury release unenforceable. Fur- thermore, when the parent in this case signed such a release, the Legislature had not prohibited or regu- lated pre -injury parental releases of a minor's claims, though the Legislature had legislated as to post -injury parental releases of a minor's claims. See §§ 744.301, 744.387, Fla. Stat. (2003). The Le- gislature has not subsequently acted to regulate pre - injury releases. Thus, at the time of this parental agreement which permitted the minor to participate in this activity, there was no law in Florida, either statutory or court- declared, enunciating the public policy that the majority now determines makes this agreement unenforceable. Absent the majority's de- cision that such an agreement is against public policy, the agreement would without question be enforceable. See Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973) (explaining that exculpatory clauses are generally valid and enforceable absent public policy requiring nonenforcement). I believe that it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case. Moreover, I conclude that the majority opinion highlights why the decision as to the enforceability of a parent's pre -injury release of a minor's claim is and should be a legislative decision. The majority opinion creates many questions and provides few answers. The answers will have to be gleaned from further costly case -by -case litigation, and if the par- ticular circumstances of other releases are found to be against the declared public policy, the result will be additional after- the -fact determinations of liabil- ity without sufficient notice to the parties involved. The majority opinion draws a distinction between "commercial establishments" and "community based or school activities," which is precisely the distinction that this Court's majority criticized in quashing the Fourth District Court of Appeal's de- cision in Global Travel Marketing, Inc. v. Shea, C 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) 908 So.2d 392 (F1a.2005). The Court expressly stated: [T]he line dividing commonplace activities from commercial travel opportunities is far from clear, given that some commonplace school or com- munity activities might also involve commercial travel. The Fourth District decision might prevent arbitration of claims of minors arising from their parents' decisions in individually authorizing activities that involve commercial travel, but not from the decisions of school authorities in arran- ging for the same activity. We see no basis in fact or law for this distinction, nor a reliable standard by which to apply it without making value judgments as to the under- lying activity that the parent has deemed appro- priate for the child to engage in. Moreover, the alternative of requiring parents to seek court ap- proval before entering into *363 commercial travel contracts that include arbitration agree- ments would place courts in a position of second guessing the decision- making of a fit parent. Id. at 404 (footnote omitted). In reaching our de- cision, we relied upon and quoted from Troxel v. Granville, 530 U.S. 57, 68 -69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ( "Accordingly, so long as a par- ent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. "). I recognize that in Shea the majority said in a foot- note that it was not addressing the distinction between commercial and community-based and school - related activities as applied to pre -injury waivers of liability. See 908 So.2d at 395 n. 3. However, in this case, the majority does not have any more of a reasonable "basis in law or fact for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed ap- Page 15 of 20 Page 14 propriate for the child to engage in" than the major- ity had in Shea. As found in Shea, the line dividing commercial activities from community-based and school- related activities is far from clear. For ex- ample, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a com- munity-based activity? Is a band trip to participate in the Macy's Thanksgiving Day parade a school or commercial activity? What definition of commer- cial is to be applied? The importance of this issue cannot be overstated because it affects so many youth activities and in- volves so much monetary exposure. Bands, cheer - leading squads, sports teams, church choirs, and other groups that often charge for their activities and performances will not know whether they are a commercial activity because of the fees and ticket sales. How can these groups carry on their activities that are so needed by youth if the groups face ex- posure to large damage claims either by paying de- fense costs or damages? Insuring against such claims is not a realistic answer for many activity providers because insurance costs deplete already very scarce resources. The majority's decision seems just as likely to force small -scale activity providers out of business as it is to encourage such providers to obtain insurance coverage. If pre -injury releases are to be banned or regulated, it should be done by the Legislature so that a statute can set universally applicable standards and defini- tions. When the Legislature acts, all are given ad- vance notice before a minor's participation in an activity as to what is regulated and as to whether a pre -injury release is enforceable. In contrast, the majority's present opinion will predictably create extensive and expensive litigation attempting to sort out the bounds of commercial activities on a case -by -case basis. The majority opinion also does not explain the reas- on why after years of not finding pre -injury releases to be against public policy, it today finds a public policy reason to rule pre -injury releases unenforce- able when the Legislature has not done so. Again, © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) the present majority opinion conflicts with the reas- oning expressed just three years ago in Shea: Further, the lack of a statutory requirement for court involvement in pre -injury arbitration agree- ments provides a basis for treating these agree- ments differently from settlements of lawsuits in- volving minors' claims, for which appointment of a guardian ad litem and court approval are neces- sary under certain circumstances pursuant to *364sections 744.301 and 744.387, Florida Stat- utes (2004). The Legislature has chosen to au- thorize court protection of children's interests as to extant causes of action, but has not exercised its prerogative as parens patriae to prohibit arbit- ration of those claims. 908 So.2d at 403. Similarly, though the Legislature has acted in respect to the settlement of accrued claims, the Legislature has not acted in respect to pre -injury releases. There can be no question that the Legislature adopts legislation when it concludes that the interests of minors are best served by stat- utory protection. The Legislature has chosen to act in respect to many matters in which the Legislature concluded that minors should have the protection of a guardian ad litem. See Tallahassee Mem? Reg? Med. Ctr., Inc. v. Petersen, 920 So.2d 75, 78 (Fla. 1st DCA 2006) (listing circumstances in which trial court may or must appoint a guardian ad litem: § 39.402(8)(c) (shelter hearings); § 39.807(2)(a) (termination of parental rights proceedings); § 73.021(4) (eminent domain proceedings); § 390.01115(4)(a) (termination of pregnancy without parental notification); § 731.303(4) (probate pro- ceedings); § 743.09(3) (contract for artistic or cre- ative services or professional sport contract); § 744.446 (parental conflict of interests with minor child), Florida Statutes (2004)). Thus, as we did in respect to arbitration agreements, it is reasonable to conclude that the Legislature has chosen not to act in respect to pre -injury releases. The Legislature may have chosen not to act on the issue of pre -injury releases out of respect for the authority of parents to make choices involving their Page 16 of 20 Page 15 children, which again we recognized in Shea: Parents' authority under the Fourteenth Amend- ment and article I, section 23 [of the Florida Con- stitution] encompasses decisions on the activities appropriate for their children - whether they be academically or socially focused pursuits, physic- ally rigorous activities such as football, adventure sports such as skiing, horseback riding, or moun- tain climbing, or, as in this case, an adventure va- cation in a game reserve. Parents who choose to allow their children to engage in these activities may also legitimately elect on their children's be- half to arbitrate a resulting tort claim if the risks of these activities is realized. 908 So.2d at 404. Without the ability to execute pre -injury releases, a parent may find that his or her minor child will not be able to participate in activit- ies because the operators of the activities will not accept the financial exposure of the minor's parti- cipation, regardless of whether the parent would de- cide that the benefit to the minor outweighed the risk of injury. The majority opinion raises other serious questions. If a parent does not have the authority to execute a pre -injury release, does a parent have the authority to execute an enforceable consent for medical treat- ment on behalf of a minor child? Florida courts have long recognized the authority of the parent to execute an enforceable consent for medical treat- ment on behalf of a minor child, see Ritz v. Fla. Pa- tient's Comp. Fund, 436 So.2d 987, 989 (Fla. 5th DCA 1983) (holding that parent could consent to medical treatment on behalf of incompetent child), but medical consents and pre -injury releases have substantial similarities. Plainly, without the giving of consent, health care providers in most instances will not provide medical services. The majority's decision also calls into question whether a parent has authority to turn down an offer of settlement for an injury to a minor as was upheld in Petersen. In sum, I conclude that the questions presented by this case demonstrate a need *365 for the Court to © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. • 11 1•. A r T TT1 dT T'. O_l _ L..« f%.: — 2 t1 7 /7nn0 997 So.2d 349 997 So.2d 349, 33 Fla. L. Weekly S939 (Cite as: 997 So.2d 349) exercise judicial restraint, recognize that the Legis- lature is the policy - making branch of government, and defer to the Legislature by respecting the Le- gislature's non - action to date. Fla.,2008. Kirton v. Fields 997 So.2d 349, 33 Fla. L. Weekly S939 END OF DOCUMENT © 2009 Thomson Reuters /West. No Claim to Orig. US Gov. Works. Page 17 of 20 Page 16 1 -^ - /._ W • .- 0 ..1: +P. «...c4—i7TAdT ri12,fn— f,-i fm= 1/17/7nn9 Page 18 of 20 Westlaw Delivery Summary Report for MACRE,HEATHER A Date /Time of Request: Thursday, March 12, 2009 11:21 Eastern Client Identifier: RANDOM DRUG TESTING Database: KEYCITE - HIST -IMG Citation Text: 997 So.2d 349 Service: KeyCite Lines: 1 Documents: 1 Images: 1 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. t // '•I .1 / a /— r LA P. - f,rn2r ' 2/11/7(111Q Westlaw KEYCITE Page 19 of 20 Date of Printing: MAR 12,2009 H Kirton v. Fields, 997 So.2d 349, 33 Fla. L. Weekly S939 (Fla., Dec 11, 2008) (NO. SC07 -1739, SC07 -1741, SC07 -1742) © 2009 Thomson Reuters. All rights reserved. • t■rR>;frh- 1/1) /7(1()9 pas3 014 0:MS pineal linej artegoottuaqui Ilul 1 pne3 Om ems Pm* aleirtauzial }MO) PIM Page 20 of 20 fl n 1 0 T 1,TX ST T7 0_ — — / /1 A1le1 PUBLIC RISK MANAGEMENT OF FLORIDA 3434 Hancock Bridge Parkway, Suite 203 North Ft. Myers, Fl. 33903 March 23, 2009 To: All Board Members & Alternates From: Re: Judy Hearn, Asst. Executive Director Secretary, PRM Board of Directors Summary of March 13, 2009 Board Meeting The following is a summary of motions passed at the Board of Directors Meeting held on March 13th in Lakeland, Fl. This is provided for your information only. The official meeting minutes will be presented for approval at the next scheduled Board of Directors Meeting on June 19, 2009. Motions Passed Consent Agenda: 1. Approved November 14, 2008 Board Meeting Minutes 2. Approved Treasurer's Report as of December 31, 2008 Regular Agenda: 3. Approved Administrative Budget for 2009 -2010 Overall budget is 2% less than 2008/09 budget year Includes up to 6% salary increase for staff & 4% increase for Executive Director Unanimously approved use of Surplus Funds to cover each member's allocation of the Administrative Budget for the 4 -01 -09 renewal Unanimously approved use of Surplus Funds, in the form of a participation credit, to offset a portion of each member's Loss Fund contribution for the 4 -01 -09 renewal. The annual educational conference will be held at the Marco Island Hilton Beach Resort on June 17, 18 and 19. One night's room accommodations will be provided for each Board Member and Alternate as previously approved the Board. Member Notices to Withdraw 3- 31 -09: Eleven members provided notice to withdraw. At this time, 8 members will remain with PRM. Member Notices to Withdraw 2010: Five members have submitted notice to withdraw 3 -31 -2010 On -Site Property Appraisals: Four members are scheduled for on -site appraisals in 2009 (Desoto County BOCC, City of Lake Mary, City of Okeechobee and City of St. Pete Beach). Three members are scheduled for on -site appraisals in 2010 (City of Brooksville, City of Indian Rocks Beach, Sun `n Lake of Sebring). 4. Insurance Advisor Report Mr. Tobey addressed the need to expand PRM's membership to include school boards and special taxing districts to spread the risk. Strategies include use of independent agents and enhanced marketing of the PRM program. 5. Broker's Report World Risk Management Restructuring: Shane Caldwell of Accretive Insurance Group is partnering with WRM to market the PRM program and increase membership. April 1, 2009 Insurance Renewal: As a result of extensive marketing by WRM, three major changes were accomplished. 1) PRM's partnership with Accretive Insurance Group provides exclusive access to the Public Entity Property Insurance Program (PEPIP). PRM is the only Pool in Florida to access this program. PEPIP is the largest property program in the world with the most extensive coverage at the most competitive rate. 2) WRM has secured American Safety as the Liability & Workers' Compensation carrier. This will allow PRM to reduce its retentions and exposure to loss which will benefit the membership. 3) The markets indicate that Excess Workers' Compensation rates will increase over the next 2 years. The State Workers' Compensation rates will increase in April, 2009 as well as in 2010. WRM obtained a renewal on Excess Workers' Compensation that reduced the premium from last year's rate and guaranteed the rate for the next 2 years. This will be very beneficial for PRM Members as well as attracting new business. For further cost savings, a deposit fee basis will be implemented for the 4 -01 -09 renewal for third party claims administration with Gallagher Bassett Services rather than the fixed fee charge. Disclosures Including Commissions: WRM does not receive any contingent commissions. 12.9% was received on total premiums for last year's renewal. Commission for the 4 -01 -09 renewal is 11.3% of total premiums. Proposed Rule Change for Self Insurers: Due to proposed Rule changes at the State, self insurers may need to re- qualify for self insurer status. Discussion was held regarding the one -year notice for withdrawal. The concept of two membership classes was proposed. Preferred members would retain a vote on the Board of Directors and observe the one year notice requirement. Standard members would only purchase insurance under the PRM umbrella and would not be afforded a vote on the Board nor participate in the Loss Fund. They would be required to provide a 30 day notice to withdraw. Proposed By -Laws changes are anticipated to be presented at the June Board Meeting. 6. Chairperson's Item Executive Director Evaluation: Evaluations supported the membership's confidence and respect for Mr. Furry's leadership. The Board approved a 4% salary increase for the Executive Director effective 4- 01 -09. 7. Legal Update Mr. Roper advised that any type of pre- incident waiver or release executed by parents of a minor that involves a commercial enterprise is invalid. He recommended that other insurance, if obtained, be named primary above PRM to transfer the risk away from the public entity & PRM Pool 8. Board Member Items Election of Officers for Vice - Chairperson, North Representative and South Representative will be held at the June Board Meeting. PUBLIC RISK MANAGEMENT OF FLORIDA BOARD OF DIRECTORS MEETING MARCH 13, 2009 REGULAR AGENDA SUMMARY Executive Director's Report continued B. Educational Conference Update C. Member Notices to Withdraw i. Notice for 2009 — Notice Extension — Notices were received from the following members to withdraw 4/1/09: City of Avon Park City of Brooksville City of Clewiston City of Eustis L e t' -1 —Highlands County BOCC Holmes County BOCC z e-c-f —Lee County Port Authority City of Port Richey Sarasota Manatee Airport Authority City of Temple Terrace Due to timing of members' requests for proposals, an extension to the 2/15 deadline for final notice was granted. ii. Notice for 2010 City of Crystal River *City of Eustis Hendry County BOCC City of Punta Gorda *Submitted notice more than once during 3 -yr. period D. On -Site Property Appraisals i. Scheduled in 2009 — As a reminder, CBIZ will be contacting the following members to schedule their on -site property appraisals in 2009: DeSoto County BOCC City of Lake Mary City of Okeechobee City of St. Pete Beach ii. Scheduled in 2010 — The following members are scheduled for 2010 and were advised of the estimated cost for budgeting purposes: City of Brooksville City of Indian Rocks Beach Sun 'n Lake of Sebring Improvement District 3.B. Educational Conference Update Public Risk Management of Florida 17th Annual Educational Conference June 17 -19, 2009 REGIS T R A T 1 O N (must be completed and returned with payment by May 1, 2009 First & Last Name (please print) Entity / Organization: Mailing Address: City State Zip: Daytime Phone: Email: Hotel Information Reservations must be received by May 1, 2009. Please reference PRM Educational Conference. Hilton Marco Island Beach Resort 560 South Collier Boulevard Marco Island, Florida 34145 -5503 Phone: 239- 394 -5000 Fax: 239- 394 -5251 Single / Double Room. Rate $129.00 Check -in 4:00 pm. check out 11:00 am. Daily parking (overnight quest) daily fee $10.00 for self parking and $14.00 for valet parking. Room reservations cancelled less than seven (7) days prior to scheduled arrival date will forfeit their first night's deposit. An early departure fee of $50.00 is applicable to any guest who checks out before their stated departure date. After May 1, 2009 reservations are subject to availability. Hotel Confirmation Number: (very important) NOTE: Members must enter their Hotel confirmation number in order to qualify for complimentary room(s) Please enter your hotel confirmation number here. Registration Fee includes all functions, meals and educational classes. PRM Member Non Member (agent / vendor) @ $50.00 each $ @ $85.00 each $ NOTE: Members, Non - Members, Guest must have ticket for admission to functions and meals. (breakfast Thurs & Fri and lunch Fri are for members only). Extra function / meal tickets available: Wednesday night Adult @ $25.00 each $ Child @ $15.00 each $ (12 and under) Thursday night Adult @ $25.00 each $ Child @$15.00 each $ 12 and under TOTAL ENCLOSED $ Payment must accompany registration including cost of extra Function / Meal Tickets. Mail check with completed registration form to: Public Risk Management, 3434 Hancock Bridge Parkway, Suite 203 Fort Myers, Florida 33903 800 -367 -1705 MAKE CHECK PAYABLE TO "WORLD RISK MANAGEMENT" (WRM)