University of Vermont AAHS

Washington v. Equine Reproductive Concepts

Virginia Circuit Court, Rockingham County
2002 WL 32126309
August 15, 2002

Summary of Opinion

Plaintiffs Washington sued defendant equine vet clinic for injuries to two of their horses.  The clinic and its veterinarians claimed a release of liability signed by the plaintiffs should lead to dismissal of the lawsuit.  In this opinion, the trial court concludes that as a matter of Virginia public policy veterinarians, as a profession regulated by statute, cannot escape liability through a release document.  It also finds that as to the clinic the release is unenforceable in that it does not specifically release the clinic from its own negligence.  Accordingly, the trial court denies the motion to dismiss.

Text of Opinion

 This case is before the Court on the Plaintiffs' motion for judgment and the pleas in bar of the Defendants Equine Reproductive Concepts (ERC), LLC, Alan Kuhn (Kuhn), D.V.M., and Meredith Butts (Butts), D.V.M. For the reasons stated in this opinion, the pleas in bar are overruled.


 These cases arise from the boarding and treatment of two horses owned by the Plaintiffs. The Plaintiffs allege that ERC was to perform various reproductive services on their horses. The Plaintiffs allege that ERC, and the veterinarians at ERC (Kuhn and Butts), were negligent and caused injury to the horses that resulted in monetary damages to the Plaintiffs.

 The Defendants have asserted pleas in bar to the motions for judgment, arguing that an exculpatory clause in the documents signed by the Plaintiffs released the Defendants from any liability associated with the horses. The exculpatory clause in the Washington case is as follows: "The owner of the horse understands there is risk involved with handling and managing horses and agrees to release Equine Reproductive Concepts, its employees and representatives from any liabilities associated with the horse while at Equine Reproductive Concepts." (Def.Ex. 5). The exculpatory clause in the Myers case is as follows:

As the horse owner, you understand and agree that there is inherent risk involved with the handling and management of horses, and you hereby agree to release and hold harmless ERC and its employees, representatives and contractors from and against any liabilities, claims, and damages associated with the horse, its medical or professional care, boarding, or conduct while at ERC, unless the same result from ERC's gross negligence or willful misconduct.

(Def.Ex. 4). ERC asserts that these clauses act as a complete bar to the Plaintiffs' recovery of damages. Likewise, Kuhn and Butts assert that they are third‑beneficiaries of the exculpatory clauses.

Standards for a Plea in Bar

 The principles that apply to a plea in bar are well‑settled.

[A] plea, whether at law or equity, is a discrete form of defensive pleading. As distinguished from an answer or grounds of defense, it does not address the merits of the issues raised by the bill of complaint of the motion for judgment. Yet, a plea is a pleading which alleges a single set of facts or circumstances ... which, if proven, constitutes an absolute defense to the claim.

Nelms v. Nelms, 236 Va. 281, 289 (1988); accord Tomlin v.. McKenzie, 251 Va. 478, 480 (1996). The moving party carries the burden of proof on the issue of fact. Tomlin, 251 Va. at 480.

Kuhn and Butt's Plea in Bar

 The issue presented by Kuhn and Butts (veterinarians) is whether a veterinarian may avail herself of a waiver of the standard of care that she owes to her patients. This is an issue that has not been addressed by the Virginia courts. In fact, the Court was unable to locate any cases, nor have the parties cited any cases, in which this particular issue has been decided. However, based on settled principles of law, the Court is of the opinion that the exculpatory clause in the document did not waive the veterinarian's standard of care.

 The veterinarians argue that the Plaintiffs waived the standard of care the veterinarians owed to their patient, the Plaintiff's horse. The veterinarians argue that the Plaintiffs signed a contract with ERC that contained an exculpatory clause releasing ERC and the veterinarians from liability in connection with the treatment of the horse. For the purposes of the pleas in bar, the Court will assume that the veterinarians are the intended third party beneficiaries of the exculpatory clauses.

 A party may not exempt himself from liability from a duty imposed on him by a statute. "It is said that no person can, by agreement, exempt himself from liability for his negligence in the performance of a duty imposed upon him by law, especially a duty imposed upon him for the benefit of the public, independently of the contract." 57A Am.Jur.2d, Negligence, 57. An example cited by Am.Jur.2d is the duty of a physician to a patient. Virginia has imposed a duty of a standard of care upon veterinarians practicing veterinary medicine in the Commonwealth.

 The Virginia Board of Veterinarian Medicine (the "Board") may establish rules and regulations only pursuant to the Commonwealth's police power. Va.Code Ann. 54.1‑100 (Michie 2002). Additionally, the Code states that no regulation may be imposed except for the exclusive purpose of protecting the public interest. 54.1‑100. Therefore, The legislature has given the Board the power to regulate veterinarians, through the police power of the Commonwealth, for the purpose of protecting the public interest. 54.1‑100, 54.1‑ 3804, 54.1‑2400. In exercising its police powers, the Board has imposed, by regulation, a standard of care for veterinarians.

 The Board may revoke a veterinarian's license if he is guilty of unprofessional conduct as defined by the regulations of the Board. 54.1‑3807. Unprofessional conduct includes: "[p]racticing veterinary medicine in such a manner as to endanger the health and welfare of his patients or the public, or being unable to practice veterinary medicine with reasonable skill and safety ..." 18 VAC 150‑20‑140. This regulation imposes on a veterinarian the standard of care of practicing medicine "in such a manner as not to endanger the health and welfare of his patients or the public" or with "reasonable skill and safety." Because a veterinarian's standard of care is imposed upon him by law independent of the contract, and for the benefit of protecting the public interest, a veterinarian may not assert a waiver of his standard of care through an exculpatory clause in a contract.

 Additionally, the Virginia Supreme Court has stated that a contract made in violation of a statue is void. Bowen Electric Company, Inc. v. Foley, 194 Va. 92 (1952); Lasting Products Co. v. Genovese, 197 Va. 1 (1955). "The general rule is that a contract made in violation of a statute enacted to protect the public against fraud, imposition, or to safeguard the public health, or morals, is illegal and unenforceable by the guilty party." Lasting Products, 197 Va. at 8. As explained above, the statutory duty of a standard of care imposed upon veterinarians is enacted pursuant to the police power of the Commonwealth for the benefit of protecting the public interest; therefore, the Court finds that the exculpatory clause, as it applies to the veterinarians, is void.

 Accordingly, the Kuhn and Butts pleas in bar are overruled.

Equine Reproductive Concepts, Inc.'s Plea in Bar

 The issue raised by ERC's plea in bar is whether the exculpatory clause in the "General Information" form relieves ERC from liability. The Court is of the opinion that the Defendants have not carried their burden of proof. Therefore, the plea in bar is overruled.

 The evidence introduced by the Defendants was very limited. The Defendants called one witness and introduced several documents into evidence. Two of the documents introduced were labeled "General Information" at the top right hand corner. (Def.Ex. 4, 5). These documents contain the exculpatory clauses referred to by the Defendants. Based on the evidence presented to the Court, it is unclear whether the "General Information" documents embody the entire contract terms between the parties. Mr. Kevin D. Dippert inconsistently testified regarding other possible documents that clients of ERC are required to fill out. First, Mr. Dippert testified that he did not think that ERC requires clients to sign any forms in addition to the "General Information" document. (Dippert Tr. 16.) Second, Mr. Dippert stated that clients of ERC usually fill out several forms when they entrust their horse to ERC's care. (Dippert Tr. p. 17‑19.) Due to this inconsistency, the Court is left with the possibility that additional terms of the contract may be contained in other forms filled out by the Plaintiffs. Additionally, there was no evidence that there were no oral representations made by the ERC to the Plaintiffs that may have become terms of the contract. Mr. Dippert testified that there were no additional contracts between ERC and the Plaintiffs, but he did not testify that no oral representations or further documents added terms to or modified the terms contained in the "General Information" form. (Dippert Tr. 11, 14.) The "General Information" form does not recite any consideration for the alleged contract, neither does it contain a provision stating that the terms within the "General Information" form contains the complete agreement between the parties. Because it is unclear whether the "General Information" form encompasses all of the terms of the alleged contract between the parties, the Court holds that the Defendants have not carried their burden of proof.

 The Court is also of the opinion that the exculpatory clauses are ambiguous.  "Exculpatory contracts are not favorites of the law." 57A Am.Jur.2d, Negligence, 65. "Consequently, they are subject to close judicial scrutiny and are construed strictly, with every intendment against the party seeking their protection, especially when printed on such party's own form." Id. The language used by ERC is ambiguous. The language does not, in clear an unequivocal terms, state that ERC will not be liable for damage to the Plaintiffs' horses because of ERC's own negligence. See 8A Am.Jur.2d, Bailments, 93. Because of this ambiguity, it is unclear whether there was a meeting of the minds of the parties that the release language would release ERC from its own negligence. See Wright v. City of Richmond, 146 Va. 835 (1926). The Court also notes that it is unclear from the record whether ERC is a professional bailee. See 8A Am.Jur.2d, Bailments, 94. The Court is of the opinion that there are factual issues that where not fully addressed in ERC's plea in bar and that a decision by this Court would be premature based on the evidence before it. Therefore, ERC's plea in bar is overruled.


 Based on the above reasons, the pleas in bar are overruled. ERC may not file an additional plea in bar in order to correct the evidentiary short‑falls the Court has noted in this opinion. However, counsel for ERC may make appropriate motions regarding the issues addressed in the plea in bar during the trial phase of these cases. Ms. Bowers is directed to prepare an order for each case consistent with this opinion.

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