SPREADING LIABILITY FOR HAZING

Timothy M. Burke, Manley Burke, tburke@manleyburke.com

The Florida Third District Court of Appeals recently ruled that the Kappa Sigma Fraternity and its Epsilon Beta Chapter could not be sued in the State of Florida as an unincorporated association.¹ That result signals the potential for greater liability for individual members of the Chapter.

The suit grew out of the death of Chad Meredith, who drowned in the early morning hours of November 5, 2001, while attempting to swim across Lake Osceola on the Uni­versity of Miami Campus. Meredith was a pledge of Kappa Sigma. He and two of the fraternity brothers attempted to swim the lake at a time when there was a warning in effect that Hurricane Michelle was approaching. Meredith, who, according to one of his friends, couldn’t swim very well be­cause he had a bad shoulder, didn’t make it to the other side.

[Individual chapter members can be liable for their own wrongful acts and perhaps those of their fellow members as well]

After divers pulled his body from the lake, according to press reports, he was found to have a blood alcohol level of 0.15, nearly double the legal limit in Florida.

The police investigation found that there was no hazing involved. The Miami Herald reported that a Miami-Dade homicide detective said, referring to the swimmers “They said they were drinking. There was no hazing or initiation going on.”

In spite of that, the parents of Chad Meredith filed suit against the chapter president and the rush chairman, both of whom successfully swam the lake, as well as against the fraternity. The recent Court of Appeals decision, recognized that it was “undisputed that Kappa Sigma and Epsilon Beta are  voluntary,  unincorporated associations. Thus, the Trial Court erred in denying the motion to quash service of process because such an association must sue or be sued in the names of the individuals composing it rather than its firm name.”

The court went on to say that “unlike some other jurisdictions that permit an unincorporated association  to sue or to be sued in its own name, Florida does not have such an enabling statute. The question whether these associations should be amenable to suit in Florida is within the province of the legislature, not the judiciary.”

The fact is that in most states, unincorporated associations are able to go to court or be brought to court in their own name. What this decision means in Florida though is that if a fraternity or one of its chapters which is unincorporated is to be sued for the actions of some of its members, all of its members will have to be named and served as defendants in the lawsuit. This has enormous potential to spread the liability for the wrongful acts of a few to the pocketbooks of the many.

The Palm Beach Daily Business Review reported that the attorney representing the Meredith family regarded the decision as “only a minor setback.” He argued that the Chapter President and the Rush Chairman were acting in their capacity as officers of the chapter at the time they swam the lake with Meredith. Therefore, the attorney argued, that “what they were doing was fraternity-related. That triggers coverage under the insurance company of the National Fraternity.” Whether, indeed, the actions of the swimmers were fraternity-related, is something a jury will ultimately decide. In the meantime, the Meredith case ought to be yet another warning to fraternity chapter members, or especially those in Florida, that there is no corporate veil to hide behind and individual chapter members can be liable for their own wrongful acts and perhaps those of their fellow members as well.

¹Johnston v. Meredith, 2003 Fla. App. LEXIS 1373., 3rd Dist.), February 12, 2003.