If you exercise at a health club, you may not be aware that Massachusetts law protects you in many ways from unlawful club contracts. But many local health clubs – yours may be included – are regularly violating the law.
Health clubs are serving larger numbers than in the past. Over 50.2 million Americans now hold gym memberships, a 10 percent increase over the past three years, according to the International Health, Racquet & Sportsclub Association.
The industry has been known to make it challenging for members to cancel or put their memberships on hold. Sometimes, after you sign the cancellation agreement, they require you to pay until month’s end, then another full “last month.” In addition to monthly membership fees, many are also now adding new fees for “annual” memberships and equipment maintenance. Some are even charging cancellation fees up to $200. This is still legal in Massachusetts, though not at all consumer friendly.
But did you notice the fees clearly posted the last time you visited your gym? If not, your gym is violating the law. The Massachusetts Office of Consumer Affairs and Business Regulation recently inspected 15 local health clubs and found none were displaying fees or informing consumers of their right to cancel within three days, according to WBZ-TV. The office is referring the results to the state Attorney General’s office.
Health clubs cannot ask a member to sign a waiver of liability but, surprisingly, many still do. While waivers of liability, also known as releases, are generally enforceable in Massachusetts, G.L. c. 93, Sec. 80 specifically states, “No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer’s activities at the health club.”
This means gyms have a duty to properly maintain their premises and equipment and make sure they are being used in a safe manner, according to the manufacturer’s guidelines. If they do not, and they were negligent, they may be responsible for your damages. If you have been injured in a Massachusetts gym, the court should find the liability waiver void. Over the years, our injury lawyers have successfully challenged these agreements.
Gyms also cannot ask members to sign up for terms longer than 36 months or require that members agree to financing that lasts longer than one month beyond the membership period. Members cannot be required to agree to monthly automatic withdrawals from a bank account.
If you are joining a gym, the best thing you can do is read the fine print on your member agreement before signing. Research the organization online through your local Better Business Bureau website.
Consumer remedies for health club violations are limited. No health club will be permitted by the courts to enforce an illegal contract. A consumer may bring claims under the Massachusetts Consumer Protection Act, G.L. c. 93A, but damages will usually be nominal, although attorneys’ fees would be available.
Recent Court Ruling
The possibility of class actions was virtually eliminated by the recent ruling by the Supreme Judicial Court in Tyler v. Michaels Stores, Inc., 464 Mass. 492 (2013). An invasion of a consumer’s rights may be a violation of G.L. c. 93A, but unless the consumer has suffered a separate, identifiable harm arising from the violation, there will be no remedy. This case put a disappointing crimp into collective consumer action to prevent violations of the Consumer Protection Act, leaving overworked state officials to take up the slack.
Last week the Massachusetts Supreme Judicial Court issued an important and strongly pro-consumer decision in the case of Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486 (2012). The decision erased uncertainties created by an Appeals Court decision in the same case (78 Mass. App. Ct. 518 (2010). The decision sends the message that insurance companies will have to pay when they do not treat consumers fairly. Attorney David W. White has written an in-depth summary, which you can read by on our website.
In this case, the plaintiff’s car was hit from behind by an 18-wheel truck. The impact fractured her spinal cord and left her paraplegic. She also suffered broken ribs. She brought claims, along with her husband and her children.
The claims management company was AIG Domestic Claims, Inc. (AIGDC). The company delayed making a settlement offer, then finally made a very low one. Another offer came during trial, this one only slightly better.
The plaintiff rejected all offers and secured an $11.3 million judgement at a trial in Superior Court in September 2004.
Defendant appealed, and AIGDC failed to pay the judgment until after a c. 93A letter was sent and suit was instituted in a second action for violations of c. 93A and c. 176D.
Plaintiff prevailed, but appealed when they were not awarded full damages based upon the judgment.
The Appeals Court affirmed in part, but did not find the proper measure of damages should be based upon the judgement. The SJC granted further appellate review.
The SJC reversed. Affirming its earlier decisions in Hopkins v. Liberty Mutual Ins. Co., 434 Mass. 556 (2001) and Bobick v. United States Fid. & Guar. Co., 349 Mass. 652 (2003), the court held that plaintiffs did not have to show how they would have answered a settlement offer, if it had come. Rather, the court stated, “[i]t has been and remains the rule that the plaintiffs need only prove that they suffered a loss, or an adverse consequence, due to the insurer’s failure to make a timely, reasonable offer; the plaintiffs need not speculate about what they would have done with a hypothetical offer that the insurers might have, but in fact did not, make on a timely basis.”
The court also affirmed the trial court’s findings that the underlying insurer, Zurich, was not liable for violations of c. 93A.
The court held that the underlying judgment of $11.3 million should be the basis of the c. 93A judgment, and that it should be doubled.
Read more about this decision on our website.
About Attorney David W. White and Breakstone, White & Gluck
Breakstone, White & Gluck is a Boston personal injury firm which represents clients who have been injured in car accidents, truck accidents and other accidents. We have decades of experience handling c. 93A claims including insurance bad faith claims in Massachusetts. We look forward to the opportunity to assist referring counsel and clients with their 93A and c. 176D claims.
Attorney David W. White is a partner at the firm and is a past president of the Massachusetts Bar Association. He writes on cases involving c. 93A and c. 176D and is recognized on an expert in Massachusetts insurance laws. He frequently lectures on the insurance matters for Massachusetts Continuing Legal Education. Attorney White is a past president of the Massachusetts Bar Association.