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Vandenberg v. Raichle Molitor U.S.A.3/5/2003
ould benefit the ski shop in the event of a claim. Third, compliance with the manufacturer's or distributor's procedures offered the potential for insurance coverage in the event of a liability claim.
A dealer making a claim -- that is, a dealer who was sued or threatened with suit by an injured skier -- was required to notify Raichle. Neiley would direct dealer claims to Raichle's vice president. Neiley would also conduct a review of the claim to determine whether, for example, the dealer had qualified as an authorized dealer. Neiley might also review the rental agreement and the ski shop's records to verify that the offending equipment was actually covered under the dealer insurance program (some older equipment pre-dated the existence of the dealer insurance program, and was not covered) and whether the ski shop had complied with all the conditions precedent to coverage. Verified claims were forwarded to a Tyrolia attorney in the United States. Neiley testified that, "in most cases that was the last I ever heard of the claim."
In specific reference to boot sole length as a condition precedent to, or at least an important consideration in the operation of, the dealer insurance program, Neiley explained that boot or shoe size was not a satisfactory datum for the calculation of binding tension, because different manufacturers, or even different boot models made by the same manufacturer, could fit the same shoe size, yet have significantly different boot sole lengths. The length of the boot sole of the outer shell, not the shoe size of the interior liner, determined the "lever arm" for purposes of forces transferred to the leg of the skier. Neiley admitted, however, that the mere absence of boot sole length on the shop ticket, or the use of a shoe size in lieu of boot sole length, did not necessarily mean that a ski shop would be denied coverage under the dealer insurance program. If, for example, the boot itself could be identified and the correct boot sole length supplied, coverage might still be afforded. As Neiley stated, "if the boot sole length could be clearly identified based on documentation provided by the shop[,] that would be acceptable in the filling of requirements as shown in the tech[nical] manual and dealer agreement."
2. Mike Bickford
Mike Bickford, a ski retailer, also testified. He reiterated Neiley's testimony that the sole length of boots can vary considerably from manufacturer to manufacturer, even for boots ostensibly of the same shoe size.
Bickford testified concerning his experience with dealer insurance programs like that offered by Raichle. He indicated that procedures for setting ski bindings and strict documentation were standards in the industry at the time of the Yauchzee claim.
E. Disputed Documentary Exhibits
Vandenberg moved to have several documents admitted into evidence. A number of the documents consisted of correspondence between Vandenberg and Raichle concerning Vandenberg's tender of defense in the Yauchzee claim to Raichle, purportedly under the dealer insurance program. Under Vandenberg's theory, the post-claim correspondence was part and parcel of a "course of conduct" demonstrating how the parties in practice interpreted the four documents constituting the contract.
Raichle objected to the proffered exhibits (Exhibits 17, 112, 121, 122, 124, 129, 133, and 141), but asked, if the court were to consider Vandenberg's exhibits, that the court also consider related exhibits (e.g., replies to the proffered letters). The court agreed to admit the exhibits conditionally, subject to the court's later determination of admissibility under Evidence Code section 356.
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