Venard v. Jackson Hole Paragliding, LLC

292 P.3d 165

Edward VENARD, Appellant (Plaintiff),

v.JACKSON HOLE PARAGLIDING, LLC, a Wyoming LLC, Tom Bartlett, Scott Harris, Matt Combs, Jon Hunt, Andrew Frye, and Jeff Coulter, Appellees (Defendants).

No. S–11–0232.

Supreme Court of Wyoming.

Jan. 17, 2013.

Representing Appellant: P. Richard Meyer and Robert N. Williams, Meyer & Williams, Attorneys at Law, P.C., Jackson, Wyoming. Argument by Mr. Meyer.

Representing Appellees: Cameron S. Walker, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming; Timothy E. Herr, Herr & Zapala, LLP, San Jose, California; and David G. Lewis, Jackson, Wyoming. Argument by Mr. Walker.

Before KITE, C.J., and GOLDEN,^*HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Edward Venard, filed suit against Appellees in Wyoming district court to recover damages for personal injuries sustained during a paragliding lesson. Appellees filed a motion to dismiss seeking to enforce a forum selection clause contained in a “Release, Waiver and Assumption of Risk Agreement” that Mr. Venard had signed as a condition of his membership with the United States Hang Gliding and Paragliding Association (USHPA). Several of the Appellees had signed similar agreements with USHPA, but none of the Appellees was a party to the agreement between Mr. Venard and USHPA. Based upon the forum selection clause, Appellees contended that California was the appropriate forum for litigation of the dispute. The district court agreed and granted the motion to dismiss. Mr. Venard challenges that decision in this appeal. We reverse.

ISSUE

[¶ 2] Did the district court abuse its discretion by granting Appellees' Motion to Dismiss based on a forum selection clause in the Release, Waiver and Assumption of Risk Agreement signed by Mr. Venard?

FACTS

[¶ 3] In August of 2008, Mr. Venard attended a paragliding training clinic at the Palisades Reservoir near Alpine, Wyoming, offered by Appellee, Jackson Hole Paragliding, LLC (JHP). During the clinic, Mr. Venard was towed in the air by a cable attached to a boat. He was thirty-five feet in the air when the operation failed and he fell to the ground, suffering severe injuries. The individual Appellees were involved in the training session as employees, owners, or agents of JHP.

[¶ 4] At the time of the incident, Mr. Venard was a member of USHPA.¹ He had joined USHPA in July, 2008. In addition to joining USHPA, Mr. Venard also sought a Flight Proficiency Rating to assess his skill level. As a condition of obtaining both membership in USHPA and a Flight Proficiency Rating, USHPA requires that applicants sign a “Release, Waiver and Assumption of Risk Agreement.” The agreement between Mr. Venard and USHPA provides, in relevant part, as follows:

In consideration of the benefits to be derived from membership in the USHGA, Ed Venard (Pilot) and the parent or legal guardian of Pilot if Pilot is a minor, for themselves, their personal representatives, heirs, executors, next of kin, spouses, minor children and assigns, do agree as follows:

A. DEFINITIONS ...

3. “RELEASED PARTIES” means the following, including their owners, officers, directors, agents, spouses, employees, officials (elected or otherwise), members, independent contractors, sub-contractors, lessors and lessees:

a) The United States Hang Gliding Association, a California Non-profit Corporation (USHGA);

...

f) All persons involved, in any manner, in the sports of hang gliding and/or paragliding at the site(s) where Pilot PARTICIPATES IN THE SPORT. “All persons involved” includes, but is not limited to, spectators, hang glider and/or paraglider pilots, powered ultralight pilots, assistants, drivers, instructors, observers, and owners of hang gliding and/or paragliding equipment; ...

B. I FOREVER RELEASE AND DISCHARGE the RELEASED PARTIES from any and all liabilities, claims, demands, or causes of action that I may hereafter have for SPORTS INJURIES, however caused, even if caused by the negligence (whether active or passive) of any of the RELEASED PARTIES, to the fullest extent allowed by law.

C. I WILL NOT SUE OR MAKE A CLAIM against any of the RELEASED PARTIES for loss or damage on account of SPORTS INJURIES....

D. I AGREE THAT this AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. All disputes and matters whatsoever arising under, in connection with or incident to this Agreement shall be litigated, if at all, in and before a Court located in the State of California, U.S.A. to the exclusion of the Courts of any other State or Country.

(Emphasis in original.)

[¶ 5] Mr. Venard filed suit against Appellees in Wyoming district court on August 4, 2010. In his complaint, he alleged that the incident occurred “on Palisades Reservoir located partially in Wyoming and partially in Idaho,” ² that JHP was a Wyoming limited liability company, and that all other defendants were residents of Wyoming. Appellees answered the complaint, generally denying Mr. Venard's allegations.³ Appellees subsequently filed a motion to dismiss based on the forum selection clause contained in the agreement between Mr. Venard and USHPA. They claimed they were third-party beneficiaries of the agreement and that California was the proper forum for resolution of the dispute. In support of their motion, Appellees also provided affidavits to Mr. Venard consenting to the jurisdiction of California courts to resolve the litigation.⁴ After a hearing, the district court granted the motion to dismiss, finding that the agreement between Mr. Venard and USHPA was enforceable, and that it required Mr. Venard to file suit against Appellees in California. The effect of the forum selection clause contained in that agreement is the subject of this appeal.

STANDARD OF REVIEW

[¶ 6] A court may, in its discretion, decline jurisdiction “in recognition of the parties' free and voluntary choice of a different forum.” Durdahl v. Nat'l Safety Assocs., Inc., 988 P.2d 525, 528 (Wyo.1999). Such a decision will be reviewed for an abuse of discretion. Id. A court has abused its discretion when it reasonably could not have concluded as it did. Ultra Res., Inc. v. Hartman, 2010 WY 36, ¶ 149, 226 P.3d 889, 935 (Wyo.2010).

DISCUSSION

[¶ 7] We begin our discussion by noting that, absent the forum selection clause, there does not appear to be any question that the Wyoming district court had subject matter jurisdiction and personal jurisdiction over all of the parties. Additionally, absent the forum selection clause, it also appears that Wyoming is the most convenient forum for resolution of the dispute. Mr. Venard asserts that he is a resident of Wyoming and received paragliding instruction leading up to the events in question in Wyoming. Appellee, JHP, is a Wyoming limited liability company and most of the individual Appellees reside in Wyoming. The majority of the potential witnesses appear to be located in Wyoming.

[¶ 8] In contrast, there is no evidence to suggest that any of the parties to the litigation had any significant contacts with California. The incident did not occur in California, and none of the parties to the litigation are residents of California. The owners of JHP conceded that JHP has no significant contacts with the state of California. JHP is not a member of USHPA. In addition, there is no indication that any of the potential witnesses reside in California.

[¶ 9] There is, however, a forum selection clause at issue in this case and the question presented is whether it may be enforced against Mr. Venard by Appellees. Historically, forum selection clauses were disfavored by American courts as contrary to public policy for precluding jurisdiction in a court of rightful authority. M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). The United States Supreme Court, motivated by an expansion of international commerce, abandoned that rationale and eventually accepted the validity of forum selection clauses where “[t]he choice of that forum was made in an arm's-length negotiation by experienced and sophisticated businessmen....” Id. at 12, 92 S.Ct. at 1914. “The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting.” Id. at 13–14, 92 S.Ct. at 1915.

[¶ 10] Later, the United States Supreme Court expanded its approval of forum selection clauses to some contracts not negotiated at arm's-length. The Court decided that a forum selection clause contained in a non-negotiated, preprinted passage contract for a cruise liner was valid for a number of reasons:

First, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit.... Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions.

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593–94, 111 S.Ct. 1522, 1527, 113 L.Ed.2d 622 (1991). The Court went on to scrutinize the clause for fundamental fairness, stating that the clause was not intended to discourage passengers from pursuing legitimate claims for two reasons—the cruise line's principal place of business was in Florida, and Florida was a main port for the cruise line. Id. at 595, 111 S.Ct. at 1528.

[¶ 11] We joined the majority of jurisdictions in recognizing the enforceability of forum selection clauses with our decision in Durdahl, 988 P.2d 525. In Durdahl, the forum selection clause at issue was contained in an “Independent Dealer/Distributor Application” executed by the Durdahls and National Safety Associates, Inc. (NSA). Id. at 527. The forum selection clause stated, in...