Batchelder vs. Malibu case SEC filing

[85 Barefoot]

23 minutes ago, Wcl said:

Recently on our lake someone ran a boat aground on a sandbar, outside of channel markers, someone was thrown out of bow, not hurt thankfully,  damage to boat 15k, they are suing the rental resort bc they dont want to pay 15k, say they were not instructed in sand bars outside of channel.  Ru kidding me you run outside of channel markers, full speed, hid a sandbar, wreck a malibu and sue.  People need to get a grip.  Play stupid games, win stupid prizes.  Own your stupid actions.  Not trying to diminish tragedy, but own your s***. 

Believe it or not everyone here heard you the first time you posted this.  In any event, do you have a link?  

[Wcl]

51 minutes ago, 85 Barefoot said:

Believe it or not everyone here heard you the first time you posted this.  In any event, do you have a link?  

Accidental repost, not even sure what happened

[UWSkier]

2 hours ago, Chartman said:

One of the inspirations behind the Malibu Response LX (playpen open bow Response) was Correct Craft's Nautique with an open playpen bow. The boat in the recent Malibu verdict was a 2000 model year Response LX. Attaching a photo of a 1992 Correct Craft Nautique I downloaded today (8 September 2021) off Boat Trader. I marked the bow label and attached a copy of the text of the warning from the operators manual. You can see Correct Craft was warning at least 8 years before the vessel in the current case was built.   gary

That's what I mean by CC and their ridiculous warning stickers. The whole freaking dash is warning stickers. Get that crap out of my boat. You don't see that in cars unless you look under the visor. 

[Wcl]

Just now, Wcl said:

54 minutes ago, 85 Barefoot said:

Believe it or not everyone here heard you the first time you posted this.  In any event, do you have a link?  

A link? I know parties involved both sides.  15k hardly generates a "link" or a news story.  Thanks for pointing out my error though, in the repost, "counselor"

 

[granddaddy55]

On 9/7/2021 at 8:35 AM, BigCreek said:

An unfortunate incident happened here at Norris Lake the other evening. Two college aged kids were standing in the bow of a MasterCraft while underway. The boat hit a wake and both were ejected and run over by the boat. One had significant prop vs body injuries, the other was fine. The boat driver picked up a couple of charges, including underage consumption of alcohol. 

Does this mean that we need a 6-foot fence around the bow on all boats so that this cannot happen again? Should alcohol be banned in the United States so this underage driver/drinker cannot commit such an act of idiocy again? How much should MasterCraft have to pay because this kid got hurt?

Or, does it mean that sometimes, people do stupid things, and people get hurt because of it. Nobody needs paid $200M because that boat was being used in a way that it is not designed to be used.

Nobody would think it would be fun to do any of the idiocy people do in a boat when riding in a car. For some reason, people feel bulletproof in a boat, as if nothing bad could possibly happen. It's a shame that people get hurt, or drown due to carbon monoxide poisoning. This is not the fault of the company building the boat. This is the fault of the undereducated. Some people are just too stupid to know the risks they are taking, and occasionally, someone dies because of it. 

bingo

[85 Barefoot]

On 9/8/2021 at 11:05 PM, Wcl said:

 

Asked for a link because the explanation seemed weird, sorry.  From what you described, you said the apparent renter is suing the rental resort because they don't want to pay for repair, which didn't make sense.  

 

Edited September 15, 2021 by 85 Barefoot

[Bozboat]

Some lawsuits are the result of insurance companies looking for recovery for claims paid.  The right granted by insurance policies to file subrogation lawsuits drives some of the “ridiculous” type cases.   For example if my parents dog bites my kid, my insurance company pays the medical expenses and then sues my dad in my name to recover for fixing my kid\his grandkid. 

[REHinH20]

But keep in mind, it's usually the insurance companies paying the "bills" in most of these cases!  Who your insurance will sue will be your dad's homeowner's company, as it should have been their responsibility in the first place as coverage for a "vicious" dog.

Edited September 9, 2021 by REHinH20
typo

[Wcl]

1 hour ago, 85 Barefoot said:

Asked for a link because the explanation seemed weird, sorry.  From what you described, you said the apparent renter is suing the rental resort because they don't want to pay for repair, which didn't make sense.  The rental place is the only party who sufferred damages.  

 

Agreed, is weird, the renters said they are not liable for damages bc they did not receive adequate instruction of the dangers in the lake, r refusing to pay, i may be wrong,  i had heard lawsuit but maybe they just have an atty fighting paying the damages.  Nonetheless, if you knew the whole story its absurd, they were far outside of channel markers in a reservoir that is known to have shallow places, running at speed and beached boat on a shallow bar.

[Bozboat]

25 minutes ago, REHinH20 said:

But keep in mind, it's usually the insurance companies paying the "bills" in most of these cases!  Who your insurance will sue will be your dad's homeowner's company, as it should have been their responsibility in the first place as coverage for a "vicious" dog.

Not a criticism, I agree that’s just how the money gets sorted out. 

[tksport]

On 9/7/2021 at 7:03 PM, Michigan boarder said:

I think that's the whole point here.  Would the sticker have made any difference?  I would argue no, the driver still would have behaved the same way and the tragedy still would have occured.  So instead, a lawyer does some quick research and sees that there is no sticker and knows that he has it won, and goes for the 200m.  That's the problem.  

The kids would not have been on the bow. You have no facts.

[tksport]

I’m familiar with this case 

Here are some facts:

Ryan didn’t have to die. His horrific death was easily preventable had Malibu Boats used even the most basic safety considerations in designing its 2000 Malibu Response LX ski boat; things that are inexpensive and easy to do. Unfortunately, Malibu rushed an unsafe boat to market in order to hold their market share as the world’s largest ski boat manufacturer. Someone was always going to pay the price for that. They just didn’t know that his name would be Ryan (and another boy before him).

Ryan lived in Florida with his family. In 2014 he was visiting Lake Burton in north Georgia for a family vacation. They rented a ski boat. One day Ryan, his older brother, and his two cousins were sitting the bow seating area (the front nose of the boat), while his uncle was a passenger in the cockpit area and his great uncle was driving. The water was flat and calm with no one else around. They began driving in large circles at 4-7mph debating what they wanted to do next. As the boat completed its second circle and crossed over its wake (which was two waves now), the boat immediately filled with water and began submarining down towards the bottom of the lake. Seven year-old Ryan was the youngest and smallest person in the boat. He was wearing a life jacket. 

No one saw it, but he was washed out of the boat on top of a floating seat cushion. He washed out the left side, where it was impossible for the driver to see him. In an attempt to prevent the boat from submarining further, the driver put the boat into reverse for 1-2 seconds to pull the boat out of the dive. The maneuver worked, and the boat popped back up to the surface. The bow seating area was completely filled with water and the cockpit was filled with about 2 feet of water. 

Unfortunately, during that time Ryan’s left leg, and then his body, were pulled through the propeller. His injuries were the worst thing you can imagine. The Medical Examiner from the Georgia Bureau of Investigations (which investigates all child deaths) testified that Ryan lived for 60-180 seconds before dying of a combination of trauma and drowning. Since his body was wrapped around the propeller, the family was stranded in the middle of the lake with Ryan underneath the boat. 

The bow swamped when it was not overloaded....according to Malibu.  Here, the bad design was that the tip of the bow was made so low to the water that it could not safely cross its own wake at slow speeds. For reference, with these children in the bow, the tip of the bow was 9” above the water at slow speeds, even though the boat creates 18-24” wakes in that configuration.  According to Malibu documents the freeboard was 5 inches lower than that of a similar model that was receiving complaints of swamping.

The family was shocked to learn with easy searches that these boats easily swamp and have basically no requirements to be tested.  They tried to settle with Malibu numerous times.  They were conflicted as they wanted change, so no other family would be torn apart by something so easily preventable.  However they also wanted to avoid having to relive the horror.  Malibu's lawyer literally mocked their lawyers, saying (in writing) that they were "scared to try the case.  Malibu's highest offer was $2m for this unspeakable tragedy which Malibu had many warnings would happen. The case was mediated  twice, and each time the mediator warned Malibu that they were making a huge mistake. But Malibu and its insurance companies stubbornly refused to even engage in any meaningful settlement discussions. 

Here are a few high-level facts that the investigation uncovered, all of which seem  shocking. It would take an entire book to include all of the shocking facts. 

- Malibu originally made this boat to be a closed bow boat, meaning everything forward of the windshield was solid fiberglass. In 1996, when they needed a boat with seating in the bow, they literally cut a hole in the front of the boat with a saw, dropped seating into the void, and sold it without any modifications to offset the additional weight. They did this even though the tip of the bow already sat very close to the water because they thought that looked “sexy.”

- When making this “redesign,” they had a “primary engineering concern” about putting the bow closer to the water, which could cause swamping. They did literally nothing about it. 

- Because of this rushed process, the bow seating area was small and totally isolated from the rest of the boat, creating a safety hazard in an emergency (very hard to evacuate because you have to climb over the divider and jump down into the cockpit). You can see what they did in the attached pictures.  

- Water that splashed over into this area would collect and there was no good way to drain it out. That's because they did nothing in the redesign to account for water they knew would come over the bow. Since the bow was so close to the water already, it would take on water that would just accumulate (adding additional weight to an area that was never designed to have any weight in the first place). There competitor addresses this in numerous ways including added a second bilge pump.

- Malibu used its marketing spin to call this area their “playpen” seating design, and asked customers to put their children up there – where they were at risk of getting washed out in a swamping event. 

- For over 30 years, Malibu never had a single engineer or Naval Architect so much as look at their boats, let alone pass off on their design. This was one of those boats. Their VP of Design has a high school education, no formal training or education in engineering or design, and Malibu hired him from a dairy farm. 

- Malibu did no formal testing of their boats whatsoever, including new designs like this one. 

- 4 years before they made this boat, a competitor called Correct Craft (they make Ski Nautique) made this exact same change to their version of this boat. They had engineers, and they redesigned it properly. In short, they moved a bunch of weight backwards to accommodate for the new weight up front that these boats were never originally designed to hold. Anyone who has ever used a see-saw knows that this is necessary, but apparently that simple fact escaped Malibu’s notice, as did their competitor’s redesign that they could have easily copied. 

- Several years after putting this boat on the market, Malibu began receiving notices of people taking water over the bow. A noteworthy instance came from a dealer in Australia who said that several folks were experiencing this problem. Malibu’s response was to ask whether they had “fatties” riding in the bow, and suggested that the “Atkins diet” was a solution. 

- There is a federal database of boating incidents involving injury or death called the BARD database. Anyone can see how boats are performing in the real world and whether they have problems. Malibu never looked. Had they looked, they would have seen about 80+ incidents involving bow swamping or capsizing. 

- Several years before this incident, an incredibly similar incident happened in Ohio with a variation of this same boat. It was so similar, that it was even another 4 year-old kid in a life jacket was wrapped around the propeller under eerily similar circumstances. This incident was in the BARD database and was posted several times on the Malibu Crew website: a web forum that Malibu set up for their users to interact. Malibu claims it never knew of this, and that they saw it for the first time when we showed it to them. Ryan's mom found it using a complicated and sophisticated tool called Google.  

- In 2011, a jury returned a plaintiff verdict in a bow swamping incident with a MasterCraft ski boat. The verdict shocked the industry, and ONLY then did the industry change. Unfortunately they made about 10% of the changes that were needed. The industry circled the wagons and worked together with lawyers to figure out a plan. I have the internal documents from these meetings and they are heartbreaking. Their motivation to change was preventing and avoiding lawsuits - they didn’t seem to give a rip about what was the safest thing for their customers. 

- Out of these changes, most boat manufacturers created new “bow dip” tests where they tested whether a boat would submarine like this. They also created on-product warning labels telling users how much weight they can safely put in the bow seating area (previously people just had to guess, and even the manufacturers had no clue what the safe amount was). 

- Malibu was still selling this model boat at the time and put it through its new bow dip testing. It objectively failed the testing (taking a lot of water over the bow), but Malibu called it a pass anyway. 

- Malibu decided that the bow loading issue was serious enough to warrant a warning label, so they began putting them on every boat moving forward. Malibu’s Executive Board, however, refused to send them to previous purchasers of the same boat because their insurance company and their lawyers said they didn't technically have to by law. The warnings cost about $0.62 each. 

Unfortunately, the recreational boating industry has demonstrated that they enact significant changes for user safety only after citizen juries hold them accountable. 

There was no alchohol, and the driver has 40 years of boating experience, lives on a lake and has owned numerous boats.

[tksport]

On 9/3/2021 at 10:21 AM, BigCreek said:

Our legal system is an absolute mess. It's like winning money from Remington because a person was shot by a Remington rifle.

I wonder how much liability lands on the company that rented that boat to an inexperienced "captain". The bow of the boat was swamped intentionally, because he was mistreating like a rental. 

Also, how many drinks did that unfortunate uncle consume prior to intentionally swamping the rental boat, only to make the kids laugh? 

The whole thing is gross. Rental boats are probably my least favorite part of being a boat owner. 

There was no alchohol and the captain had 40+ years of experience and owned numerous boats.  You have no facts.

[justgary]

29 minutes ago, tksport said:

The water was flat and calm with no one else around. They began driving in large circles at 4-7mph debating what they wanted to do next. As the boat completed its second circle and crossed over its wake (which was two waves now), the boat immediately filled with water and began submarining down towards the bottom of the lake.

I may not know anything about the case, but 4-7 MPH in that boat is idle speed.  Even with the bow occupied it won't dip going over its own wake at idle, and certainly won't fill the bow full.  Something is amiss with the "facts."

[justgary]

41 minutes ago, tksport said:

This incident was in the BARD database and was posted several times on the Malibu Crew website: a web forum that Malibu set up for their users to interact.

This Malibu Crew website? 

[Stevo]

@tksport joins an hour ago , comes in hot right to this thread and speaks with authority with no established community credibility. 
 

hmmmmm…. 
 

[Ronnie]

1 hour ago, tksport said:

This incident was in the BARD database and was posted several times on the Malibu Crew website: a web forum that Malibu set up for their users to interact.

Just an FYI  

This Malibu Crew forum has from day one never been supported, owned, run, taken suggestions on how to run or otherwise been associated with Malibu Boats. It is a user owned and supported website. 

[justgary]

32 minutes ago, Ronnie said:

Just an FYI  

This Malibu Crew forum has from day one never been supported, owned, run, taken suggestions on how to run or otherwise been associated with Malibu Boats. It is a user owned and supported website. 

Thanks, Ronnie.  I was headed there, but wanted him to confirm his "facts" first.  It is better that he heard it from the source.

[justgary]

1 hour ago, tksport said:

For reference, with these children in the bow, the tip of the bow was 9” above the water at slow speeds, even though the boat creates 18-24” wakes in that configuration.

More "facts."  Either the bow is 9" from the water or the boat is creating 18-24" wakes, but not at the same time.  One or the other.

[justgary]

Don't get me wrong, I think that this case is tragic.  I believe in attempting to make an injured party whole when possible.  But the concept of an enormous "punitive damage" award for not mailing letters to previous buyers is ridiculous.

By the way, I bought my boat used; how would Malibu find me if they wanted to warn me about something?

[smileysteve]

7 hours ago, justgary said:

I bought my boat used; how would Malibu find me if they wanted to warn me about something?

A similar way that they do it for cars. Most states require require registration (and some title) to operate on public waterways.

[justgary]

34 minutes ago, smileysteve said:

A similar way that they do it for cars. Most states require require registration (and some title) to operate on public waterways.

Thanks, that's what I figured.  So in other words, it is a rather huge undertaking to find a few needles in 50 (or so) different haystacks, each with its own rules and fees for accessing their data.  I honestly can't blame them for declining to send notices to every previous owner.  Keep in mind that the boat company that got sued is not the same company that built the boat.

[shawndoggy]

9 minutes ago, justgary said:

Thanks, that's what I figured.  So in other words, it is a rather huge undertaking to find a few needles in 50 (or so) different haystacks, each with its own rules and fees for accessing their data.  I honestly can't blame them for declining to send notices to every previous owner.  Keep in mind that the boat company that got sued is not the same company that built the boat.

I don't think you'd need to send to every previous owner, just the current owners?

the coast guard website shows that the response LX also had a recall campaign for the issue of "basic floatation" that started in 2011 and was closed in 2017... I'd hope that the manufacturer would be willing to make calls to the states' boat reg. authorities to figure out who owns the boats subject to recall.  I mean srsly, I don't think that that the process of figuring out which agencies register boats and how to notify owners would take a college kid more than a week of full time work?  Not an enormous investment in the big scheme of things.

 

[BigCreek]

13 hours ago, tksport said:

40+ years of experience

With all due respect, this kinda makes it worse. 

[BigCreek]

13 hours ago, justgary said:

This Malibu Crew website? 

I always thought that this forum has no real affiliation with Malibu Boats, Inc.