Summer 2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of December 1, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/23

Mountain Climbing

WY

Grand Teton National Park

Fell

42

M

Valhalla Canyon near the Black Ice Coulier

http://rec-law.us/2a88grE

http://rec-law.us/2as4s9f

Exum

9/12

Whitewater Rafting

AZ

Grand Canyon NP

Guide walked out of camp with inflatable

34

M

Pancho’s Kitchen

http://rec-law.us/2cIc9JI

 

OARS

If you would like a PDF of this chart please click here.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

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Copyright 2016 Recreation Law (720) Edit Law

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Echo Mountain Ski Area just outside Evergreen Colorado is hiring Ski Patrollers

If you have first aid training and have wanted to work in the ski industry, this might be an opportunity.

Echo Mountain Ski Area is hiring ski patrollers. If you are interested in the job check it out here.

 

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

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By Recreation Law    Rec-law@recreation-law.com         James H. Moss

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Echo Mountain, Echo Mountain Ski Area, Ski Patrol, Ski Patroller, Employment, Job,

 

 

 

 

 

 

 

 

 

 

 

 


Free Days for US National Parks for 2017: Get out and Get There!

 

 

National Park Service
U.S. Department of the Interior

National Park Service News Release

Release Date: November 14, 2017
Contact: Kathy Kupper,
kathy_kupper@nps.gov, 202-208-6843

National Park Service Announces Fee Free Days for 2017 

Ten More Great Reasons to Visit a National Park

WASHINGTON – Combine great scenery and history with great savings and visit a national park for free on one of 10 fee free days in 2017.

The ten entrance fee-free days for 2017 will be:

  • January 16: Martin Luther King Jr. Day
  • February 20: Presidents Day
  • April 15-16 & April 22-23: National Park Week Weekends
  • August 25: National Park Service Birthday
  • September 30: National Public Lands Day
  • November 11-12: Veterans Day Weekend

“National parks are known for their priceless beauty,” said National Park Service Director Jonathan B. Jarvis. “They are a bargain anytime but on these ten days in 2017, they really will be priceless. We want everyone to visit their national parks and the fee free days provide extra incentive to experience these amazing places.”

During the fee free days, all National Park Service sites will waive their entrance fees for all visitors. Usually, 124 of the 413 national parks charge entrance fees that range from $3 to $30. The other 289 sites do not have entrance fees. The entrance fee waiver for the fee-free days does not cover amenity or user fees for things such as camping, boat launches, transportation, or special tours.

To continue the national park adventure beyond these fee free days, the annual $80 America the Beautiful National Parks and Federal Recreation Lands Pass allows unlimited entrance to more than 2,000 federal recreation areas, including all national parks,. There are also free or discounted passes available for senior citizens, current military members, fourth grade students, and disabled citizens.

The National Park System includes more than 84 million acres and is comprised of 413 sites including national parks, national historical parks, national monuments, national recreation areas, national battlefields, and national seashores. There is at least one national park in every state.

Last year, 307 million people visited a national park. They spent $16.9 billion which supported 295,000 jobs and had a $32 billion impact on the U.S. economy.

In addition to national parks, the National Park Service works with tribes, local governments, and partners across the country to help preserve local history and create close-to-home recreational opportunities. Programs such as the National Register of Historic Places, National Heritage Areas, National Wild and Scenic Rivers, and the Rivers, Trails, Conservation Assistance Program revitalize communities, celebrate local heritage, and provide places for people to get outside, be active, and have fun.

www.nps.gov


185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff

Decision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Robin Johnson and Craig Johnson

Defendant: Spokane to Sandpoint, LLC, et al.

Plaintiff Claims: Negligence & Gross Negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2013

The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.

Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.

The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.

The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.

As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

The defendant filed a motion for summary judgment, which was granted and this appeal followed.

Analysis: making sense of the law based on these facts.

The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.

To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.

The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)

The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.

Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.

The court then went through all six factors and eliminated them all in one paragraph.

First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.

The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.

“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.

The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.

Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.

The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.

In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.

The appellate court agreed with the trial court and affirmed the decision.

So Now What?

This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.

Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.

Again, the more information you provide to your clients, the more information you give them the better your chances of winning if your release fails.

What do you think? Leave a comment.

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Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

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2017 Pathways Conference presented by Colorado State University, US Fish & Wildlife Service and Rocky Mountain National Park

Pathways Conference 2017

https://pathways2017.exordo.com

Join us for the Pathways 2017 conference hosted by Colorado State University, in partnership with the US Fish and Wildlife Service in Rocky Mountain National Park, Colorado!

Abstract due date: April 24, 2017 (Call for abstracts Dec. 1)

Theme: Futures

 

Website: www.HDFWConference.org  

 

Mark your Calendar: September 17 – 20, 2017

Location: This year we return to the YMCA of the Rockies, Estes Park/Rocky Mountain National Park, Colorado. Nestled in the outskirts of the beautiful town of Estes Park, the YMCA of the Rockies is surrounded by Rocky Mountain National Park on three sides. This venue provides a fantastic setting with abundant wildlife viewing opportunities at your doorstep.


2017 Cycling Pro Tour Announced, includes a race in Colorado!

clip_image001

 

 

2017 Pro Road Tour schedule announced

(Oct. 20, 2016) – USA Cycling announced Thursday the 2017 Pro Road Tour (PRT) calendar, which features a tighter and more geographically convenient lineup of events since the 2016 merger of the National Racing Calendar (NRC) and National Criterium Calendar (NCC).

“We have had input from the Pro Road Committee and various teams, athletes and race directors, including a sit-down meeting in May, and we feel that this lineup of events is an excellent step in the second year of the Pro Road Tour,” said Micah Rice, Vice President of Events, USA Cycling. “We had a great first year of the PRT last year, and we feel that 2017 will allow for some excellent racing.”

2017 Pro Road Tour:

Date

Event

Location

Classification

March 30-April 2

Joe Martin Stage Race

Fayetteville, Ark.

UCI 2.2 M/W

April 8-9

Sunny King Omnium

Anniston, Ala.

M/W

April 19-23

Tour of the Gila

Silver City, N.M.

UCI 2.2 M/W

April 30

Dana Point Grand Prix of Cycling

Dana Point, Calif.

M/W

May 3-7

Redlands Bicycle Classic

Redlands, Calif.

M/W

May 28

Winston-Salem Classic Criterium

Winston-Salem, N.C.

M/W

May 29

Winston-Salem Road Race

Winston-Salem, N.C.

UCI 1.1 M/W

June 4

Philadelphia International Cycling Classic

Philadelphia, Pa.

UCI 1.1 Men

June 9-11

Saint Francis Tulsa Tough

Tulsa, Okla.

M/W

June 14-18

North Star Grand Prix

Minneapolis, Minn.

M/W

July 14

Chrono Kristin Armstrong Time Trial

Boise, Idaho

UCI 1.2 M/W

July 15

ASWB Twilight Criterium

Boise, Idaho

M/W

July 19-23

Cascade Classic

Bend, Ore.

UCI 2.2 M/W

July 31-Aug. 6

Larry H. Miller Tour of Utah

Utah

UCI 2.HC Men

Aug. 10-13

Tour of Colorado

Colorado

UCI 2.HC Men

Aug. 19

Rochester Twilight Criterium

Rochester, N.Y.

M/W

Aug. 24-27

Tour of the Commonwealth

Virginia

UCI 2.1 Men

Sept. 1-4

Gateway Cup

St. Louis, Mo.

M/W

Sept. 9

Reading 120

Reading, Pa.

UCI 1.2 Men

Sept. 10

Doylestown Criterium

Doylestown, Pa.

M/W

Sept. 16

Mayor’s Cup Boston

Boston, Mass.

M/W

The revamp of the 2017 calendar aims to eliminate weekends with multiple events and make racing more geographically convenient for teams, allowing them to compete as much as possible from March to September. Given the order and timing of the 2017 PRT, teams can get to a greater amount of races relative to the overall schedule in a more cost-effective manner.

In the event that two or more events fell on the same weekend when creating the 2017 calendar, USA Cycling looked at a number of factors printed as selection criteria in the published bid packet. Size of event, media market/footprint, level of event production, popularity among riders and teams, spectator count—including on-site, broadcast and social media engagement, event history and other criteria were taken into account.

For questions, please contact Rice at mrice@usacycling.org.

 

clip_image002


Additional Insured Certificates: they are just a piece of paper, unless they are part of a contract or there is an insurable interest

There seems to be a hue and cry about collecting additional insured certificates. Unless you need TP or want to wall paper an office wall, they are worthless unless the insurance company/business issuing the certificate recognizes an insurance defined insurable interest, in advance, or you have a contract that identifies an insurable interest and recognizes the need for the certificate.

The latest catch word after this fall’s conferences runs seems to be collect additional insured certificates from everyone. Although this sound’s good and an easy way to solve a problem, legally, it is just another way to kill trees. If nothing else, it will keep you in litigation for another decade between your insurance company and the one issuing the certificate fighting over whether it is valid.

Most Additional Insured Certificates of Zero value to you from an insurance standpoint.

The basis for issuing a certificate listing someone else as an additional insured, or covered by a particular policy is there must be an insurable interest.

Indemnity – Insurable Interest

Insurable interest arose out of defining indemnity. You agree to indemnify another party of their loss. The simplest way to look at this is your relationship with you and your automobile insurance policy. If you have a loss to your car, your insurance policy will indemnify you for that loss. Insurance companies have taken that one step further these days by taking over the loss and doing all the legwork, including paying the repair facility directly.

When those indemnification agreements were larger than the money on hand or the value of the business issuing the indemnification, other ways were developed to “come up with the money” to cover the indemnification. Eventually, insurance played a role in indemnifying a third party for the losses they might incur, even though the insurance policy is issued in the name of the insured.

Think about you, a certificate of insurance is issued to the insured, which was underwritten and covers someone else who was not. Don’t you think there is more to this than just issuing a piece of paper?

Issuing Policy must cover risks of the claims identified in the certificate or the agreement.

By the very nature of the definition, simplified above, you can see there are several issues present. The insurance policy is only going to cover the third party for risks that are insured. That means if the policy issued to you says it will only cover A, B and C as risks, then a claim of Z by the third party will not be covered. No matter what the certificate of insurance says, it only covers the risks insured by the original policy for the original insured.

So even before we get to whether the certificate is valid, you must make sure the policy issuing the certificate lists the claims that the certificate is expected to cover.

You have to look at the certificate itself and see if it covers anything, let alone what you need.

Legally recognizable insurable interest

The next issue is insurance policies only cover if there is a legally recognizable interest in the possible loss. That is called an “insurable interest.”

An insurable interest means the person buying the policy has a legally recognized loss that the policy will cover. The best examples are in the negative.  I cannot buy an insurance policy on my neighbor’s house. I don’t own the house; the house does not secure a debt the neighbor owes me. I have nothing invested in the neighbor’s house; therefore, I have no insurable interest in the neighbor’s house.

Another example would be life insurance. I do not have an insurable interest that would be recognized to buy a life insurance policy on my neighbor. My neighbor’s death would not cause me a loss.

Normally, life insurance policies are only issued to relatives of the insured. The exception is if you could prove an economic loss to you because someone died. So business partners can buy life insurance policies on each other because if one partner died, the other would have to hire someone to do that partners work, and you might have to buy the surviving family members of the deceased interest in the business.

Example; my neighbor and I contractually agreed upon the death of one of us to take care of the other’s property. I would then suffer a loss if my neighbor died so I might be able to purchase a life insurance policy on my neighbor. I would have to prove the contract existed and that a real value existed for the loss I might incur. I would have to prove by contract that I have an insurable interest in my neighbor.

I’m using examples in property insurance, life and health insurance and liability insurance to get these points across. An insurable interest is different in the different types of polices, health, life, property or liability, but not enough to worry about for this discussion.

Insurable interest

Insurable interests arise “naturally” in the law. When a building is purchased the bank making the loan to finance the purchase has an insurable interest. If the property is destroyed, then the banks’ chances of receiving the rest of the loan are diminished, therefore, there is an insurable interest in the bank to insure against loss. Either the bank can buy a policy covering the property or the bank can require as part of the loan that the owner/borrower insure the property for the value of the property listing the bank as an additional insured.

Landlords have a similar insurable interest. They are listed as additional insured’s under their tenant’s policy. If the property is destroyed by actions of the tenant, the landlord will lose the property or at least the rental income. Therefore, they have an insurable interest recognized by the insurance company issuing the tenant’s policy.

Another example is a ski area operating on US Forest Service land. The US Forest Service is the landowner or landlord, and the ski area is the tenant. If the ski area destroys the property, the US Forest Service suffers a loss. So the US Forest Service is listed under the ski area’s policy as an additional insured, and the Forest Service is reimbursed for the loss of value to their land.

This particular insurable interest covers two issues for the US Forest Service. It covers any loss to the property the Forest Service may have, and it protects them from lawsuits if they are joined in a suit with the ski area. The ski area, as the permittee (or tenant) was responsible for the property at the time of the injury to the guest skiing. The US Forest Service did not make the snow, groom or run the lifts; however, as the landlord or owner of the property, the Forest Service maybe sued. As such, the US Forest Service has an insurable interest covered by the ski area for a possible lawsuit.

General or Special Liability Policies and Insurable Interest

Liability interests work the same way. If a skier hits a tree in the ski area and suffers injury, the skier can sue the ski area or the US Forest Service. The ski area is the tenant who received value for the skier being on the land, and the US Forest Service owns the tree. Both can be sued. The agreement between the Forest Service and the ski area then says the ski area must protect the Forest Service from any lawsuit due to the ski area’s occupation or control of the land. By contract and law, the Forest Service has an insurable interest that will be recognized by the ski area’s insurance company.

The owner of the land where a rafting company takes their passenger’s and boats out of the water has an insurable interest. If someone falls down getting out of the boat, both may be sued. Was it the rafting companies fault for where they put the boat or the landowner’s for how the takeout was created? Since the landowner has limited control over the takeout while being used by the rafting company, he should be covered as an additional insured because he has an insurable interest. The chance of a lost due to the acts of someone he contracts with creating liability for him.

What about a restaurant that provides lunches to the rafting company? Who should receive the certificate of additional insured from whom? The rafting company could be sued because the lunch made a customer ill. The rafting company should receive a certificate of insurance from the lunch provider. At the same time, the illness may have been caused by the way the lunch was stored or prepared, so therefore the lunch provider should be an additional insured on the Rafting company’s policy.

It is these situations where both insurance companies can struggle during litigation or a contract properly written in advance might save one or both company’s time and money.

What if the rafting company stops and has their customers walk up the bank and have lunch in a restaurant at the side of the river? If the lunches are part of the trip and the restaurant is the only option, maybe the rafting company should receive a certificate of insurance from the restaurant. However, if the customer is free to pick any meal, they want from one of the several restaurants, probably not. That would be like a restaurant on the side of an interstate asking for certificates of insurance from all trucking companies.

Would the possible insurable interest change if the rafting company received a commission from the restaurant? Yes, the insurable interest would be more compelling because there is a clear financial benefit flowing between the parties. What if the restaurant provided free lunches to the raft guides?

Unless the insurance company recognizes, either by industry or insurance practice that an insurable interest exists or that one is created by contract, that is covered under the policy, having a piece of paper with additional insured on it with you name means nothing. You must prove an insurable interest to prove legal coverage.

(And that is not even getting into the disclaimers listed on many certificates.)

Where are certificates of insurance valid by practice in the outdoor recreation industry? Between:

·         Retailers and Manufacturers

·         Landlords and Tenants

·         Federal Land Managers and Concession or Permit Holders

·         Contractors and the Hiring Company

Every other situation you should check with your attorney or get a contract that identifies the insurable interest and requires a certificate of insurance is issued with coverage for the issue. Even better, require that the contract be given to the insuring insurance company and the necessary language into the contract be incorporated into the certificate of insurance. Otherwise, you may spend more time and money litigating with the certificate issues covers the issue that was litigated.

Issuing additional insured certificates without thinking the process through is also a risk. First insurance companies look at how many and who you issue certificates too. If they see large number or risks or big risks, they can and do increase your premium to cover the additional risks.  So make sure you understand why and the value of issuing a certificate of insurance from your policy also.

Every year when prior to your policy coming up for renewal, you should look through your list of parties you issue certificates of insurance to and see if they still need to be issued. Once you list someone the list is never reduced or culled except by you. I’ve seen insurance policies with over a hundred business listed as insurable interests. When we got done, we only had twenty certificates to issue. Many of the old certificates were issued to companies the client was no longer doing business with or with business who had gone out of business.

This does affect your premium so be aware!

Do Something

Without an insurable interest, a certificate of insurance is worthless and probably is going to be costly. Any insurance company paying a claim is going to look for anyone else to share in that claim. Consequently, they will pull the insured into the claim knowing it may not be valid, but willing to fight that issue out in later years. You requesting your insurance company to issue certificates could pull you into litigation both the original and the later certificate validity litigation for years, for something you had no legal interest in.

Just issuing the certificate or receiving one is not enough. You must identify when and how it is valid. That requires a contract. That contract must say more than you will issue a certificate of insurance. It must identify what the certificate is insuring and why. It must identify an insurable interest.

Insurance companies are not going to issue a check just because they issued a certificate. Make sure everyone understands how, when and why, and you’ll make that process quicker, easier and without litigation.

Think about all the work you had to go through to purchase the policy in the first place. Do you believe your insurance company is going to issue another policy just because you said so? Not unless the insurance company believes the chances of paying a claim under the certificate is very very slim.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Lawclip_image002_thumb.jpg

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By Recreation Law    Rec-law@recreation-law.com         James H. Moss

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