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New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 

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Why do you need an attorney for your Outdoor Recreation business?

The value exceeds a well-written release and getting you out of a jam and cannot be affected by their personal interests. The value is in the interest an attorney is sworn to protect…….Yours.

An attorney cannot have a conflict of interest. When you need advice, you want it to be free of personal or business attachments that may not be in your best interest. That person who can give you that advice is called your attorney. It is solely in your best interest and for you and you alone.

Your other advisors may have conflicts you should understand.

Insurance Company & Insurance Agent

Your insurance agent has different interests than your insurance company. Your agent wants to keep you as a client so you keep paying your insurance premium. His advice, although valuable, is going to be keeping you paying and the insurance company insuring you happy.

Your insurance company has two separate minds. One is focused on marketing, to get you to buy insurance. The other is focused on reducing the amount of money it pays out in claims. They are in two separate divisions, many times two separate buildings, or even states. They do not communicate once you have an issue that shows up in the claim’s division. That division’s advice to you will not be to protect you, but to protect their money.

That does not mean that your insurance agent and insurance company are bad. Most are able to separate their interests from your interests; however, you should know there is a slight conflict there. One that an attorney cannot have.

CPA

Your CPA like your attorney must be independent and will provide great advice when dealing with financial institutions, employee benefits and wages, taxes and valuation. Always keep your CPA happy and close. However, once you leave the financial day to day numbers of your business your CPA can provide little advice.

Other Business people in your community.

Here again, these people are great for general business advice. However few are so dependent on converting someone from non-movement to movement that is done in OR. Convincing someone to buy an ice cream cone is different from convincing them to ride across the sky on a zip line. A slip and fall is the rare claim they must deal with where yours may involve several people and major injuries.

Your Interest and Advice for you Alone

An attorney is used to balancing the various interests you have, to provide you with the advice you need. An Attorney can help you prioritize your issues to assist you in making decisions. After keeping your home safe your first priority, then they can assist in keeping your priorities in order. Keeping your business, keeping your insurance, keeping your clientele, keeping your insurance company from dropping you, keeping your clientele from suing you. Attorneys are there to help you juggle all those responsibilities and issues.

An attorney who specializes in outdoor recreation will know other insurance providers who can provide assistance. An attorney can provide you with solid advice balancing the needs of the insurance company.

The best advice you can get, is from an attorney because your attorney can never be for anyone or protect anyone but you.

 

What do you think? Leave a comment.

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Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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,  Attorney, Insurance, Insurance Agent, Insurance Company, Insurance Broker, CPA, Advice, Loyalty, Conflict of Interest,

 


Great article about the risks of an organization creating standards for members of the industry – and I did not write it

The article exams the ways that standards can come back and be a liability for the organization that created them.

The Center for Association Leadership is the trade association for non-profit association directors. Its purpose is to provide information and education for non-profit associations, their directors and their boards. Part of that education is articles by attorneys to outline the risk areas of association.

One article was sent to me by one of my trade association clients. It is titled Certification and the Law. The title is a little misleading. The article is really about standards rather than certification. If you read the article you will see the term certification is used interchangeably with standards.

The article talks about the risks of doing so first and discusses the National Spa and Pool Institute litigation in the late 90’s that put the association in bankruptcy. The legal costs alone exceeded the insurance available to pay the claim.

Thankfully, full-scale judicial attacks are relatively rare, but as the cases involving the National Spa and Pool Institute show, such claims can be devastating. NSPI lost a jury trial in 1998 which, inter alia, alleged that NSPI had failed to exercise a duty of using “reasonable care” when it promulgated its swimming pool standards. NSPI’s legal defense costs greatly exceeded its insurance coverage. To avoid being shut down by the jury’s verdict and in order to post a bond for the appeal of the case, NSPI filed for Chapter 11 reorganization.

There are many other legal issues discussed in the article including educational programs etc. but I’ll quote sections concerning creating standards that I think are important.

Antitrust. Certification programs beg antitrust scrutiny, given that the object of standard setting is to bring competitors together to set criteria for, among other things, restricting entry into a field. Antitrust law prohibits anyone from unreasonably creating a barrier to practice in a profession. Therefore, the certification organization must make sure that all of its eligibility requirements are reasonable-that is, relevant to determining the professional’s skill level and not so high as to block the majority of professionals from being eligible to apply for certification.

The article discusses the liability requirements to hold an association liable for its standards.

Third-party reliance. If a customer, patient, or employer is injured by a certified product or professional, it is possible that the certifying organization will be held liable for negligence or negligent misrepresentation. The argument follows that the person relied on the certification as a guarantee of competence; because the certified product or professional did not perform competently, the certification should not have been granted. Thus, it is argued, the standard-setting organization should be liable to the injured person for its mistaken or negligent grant of certification.

In order to find liability, the injured party generally must prove that

    the organization should have known better than to grant certification;

    the organization should have known that its mistake could result in the injury; and

    the injured party was justified in relying on the certification as a guarantee of competence.

There are very few of these types of lawsuits. The article discusses lawsuits that have been filed.

Among those that have arisen, several have held that the organization is not liable in the case of products when it did not manufacture the product that caused the injury and did not exercise control over the manufacturer. Nevertheless, it is clear that liability may be found when certification is negligently granted or maintained. The deciding factor is the degree of control that can be shown that the standard-setting program exercised-or should have exercised-over the product or professional.

As the article points out, lawsuits against trade associations are rare, however, if they do occur, they can be devastating.

See Certification and the Law

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

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Insurance policies, you need to read yours and stay in touch with your agent to make sure your insurance is covering you

Several examples of popped up recently where insurance companies have altered their policies leaving the OR industry in the rain

Insurance companies do not change their policies mid-term. However they do make changes to policies and as the policies renew, those new policies incorporate the new changes.

Here is an example.

Traveler’s issues worker’s compensation policies for the cycling industry. Recently the Traveler’s worker’s compensation policy excludes from the policy employees who participate in employer (retailer) sanctioned rides.

In this case, that means that you may get a new question before your renewal or just a denial in the mail leaving you hunting for a new worker’s comp carrier.

Obviously, this is a problem for those retailers that have Travelers.    Most insurance carriers do NOT “willingly” insure the general liability for shops that have shop/group rides.

Shop rides are one of the best ways to attract new customers and retain current ones. Having your employees on these rides is super important as it is the easy way to “soft-sell” new product. Likely, your shop employee will be riding the latest-greatest bike and will be able to address any question about your product line. If the prospective customer has a good time on the ride, they will come back. The more a rider on a shop ride shows up, the more likely that rider will end up being a customer.

So, the insurance industry must feel this is a risky activity.  Yes, there are some increased risks. Making sure your employees do not take any unnecessary risks is important to mitigating the workers compensation exposure.

Do Something

Like attorneys, you need to find a good insurance broker who understands your industry. Your friend down the street maybe great, however it is the little things that can leave you hanging. The more advanced notice you have about possible non-renewals the better chance you will have at getting a good policy if that happens.

Better still is to find an agent who works in your industry and is ahead of the problems finding solutions and letting you know about the issues before you receive the letter in the mail.

Thanks to Scott Chapin who provided this tip. Scott is a broker that specializes in insuring bicycle retailers.  Scott can be reached at: chapins@rjfagencies.com or through his website.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

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You run a guide service. Should you refer travel insurance to your clients?

Yes, however, you need to understand, and probably communicate to your clients that travel insurance is extremely limited for outdoor recreation activities.

Travel insurance was created for European vacations. You booked a 12-day trip to Europe. If you got sick, or the bus, you were traveling on died, and you came home on day eight, then your travel insurance sent you a check for 1/3 of what you spent except your trip. It was simple math and very simple underwriting defined by the travel insurance policies. Europe was like the US, and the risks were known.

The UK added to travel insurance because its health care system did not extend beyond its boundaries. So UK travelers leaving the UK have always bought travel health insurance. Again, this is simple underwriting:  travelers are normally in good health and so the only real risk was an accident while traveling.

Everest Base camp does not really fit into the underwriting of either of those types of polices, yet the policies have not changed since they were first written.

Understanding Policies

First, there are two types of travel insurance that are very different and both called travel insurance. One covers medical and sometimes evacuation home or at least to a local hospital when you are outside of your home country. The second reimburses you for costs if your trip is canceled (before departure) or interrupted (after the trip starts).

Most travel medical policies are fairly easy to understand and read. They have a specific limit on how much they will pay, and a specific time frame where your injury and medical services must occur. As I stated earlier, I’ve found the best ones are those sold for UK travelers. I’ve even purchased some policies that paid for rescue up to 20,000 feet.

Travel Medical insurance policies are great to have because of the limits that HMO’s and PPO’s my place on services outside of the US. When in doubt spend the money and buy a policy if you are traveling outside of the US>

Travel Insurance Policies

Travel insurance policies are also easy to understand if you take the time to read the policy. Most policies are online and easy to find. If you are traveling for an outdoor recreation trip, you must read the policies.

And by policies, I mean the actual policy, not the lengthy description listed on the website. Most travel insurance companies have their policy online if you dig enough. If not call or email the company, tell them you are getting ready to travel in a few months and want to see a copy of their policy. Tell them you have read the coverage review on the website, but you want more information. TravelEx, a leading company calls their policy “Description of Coverage.”

As an example, the policies sold by online sites that you are booking your air or hotel through are very specific and will only cover your air or hotel – nothing more. A sleeping bag or tents are not either of those.

Travel insurance policies are very different from other insurance policies you may purchase in the US. The policies are written so absolutely only what is listed is covered with no exceptions. They are written to say for $XX you get $XX paid back if something listed in the policy occurs. If it is not listed it is not covered.

Many policies will have a grace period or cancellation period. You can purchase the policy and then have 10-15 days to cancel the policy if it is not what you want.

Travel Insurance policies may have a small medical benefit. However, this is not insurance. Meaning after you have paid the medical bill you can file a claim and ask to be reimbursed for the amount of the bill up to the limits of the policy. The medical benefit is usually around $10,000 so if you have a large medical bill you are going to eat the rest and will only be paid the $10K once you show the insurance company paid receipts.

Any claim will only be paid by including your receipts with the claim. So keep every receipt. If you are having a hard time tracking your receipts use your phone or camera to photograph the receipts. Several good apps are also available to track receipts. Again if you don’t have receipts, you won’t receive any money from the insurance company.

Claims

Claims are paid if the cause of your claim fits squarely in the list of coverage. As an example, this is the list of coverage’s from a common travel insurance policy.

Trip Cancellation and Interruption Covered Reasons Coverage is provided for the following unforeseeable events or their consequences, which occur while coverage is, in effect, under this Policy if there is a change in plans by you, a Family Member traveling with you, or Traveling Companion:

1. Sickness, Injury or death of you or your Traveling Companion and/or you or your Traveling Companion’s Family Member or Business Partner. The Sickness must commence while coverage is in effect, require the examination of a Physician, in person, at the time of Trip Cancellation or Trip Interruption and, in the written opinion of the treating Physician, be so disabling as to prevent you from taking or continuing your Covered Trip.

2. Common Carrier delays resulting from inclement weather, or mechanical breakdown or organized labor strikes that affect public transportation;

3. arrangements canceled by an airline, cruise line, motor coach company, or tour operator, resulting from inclement weather, mechanical breakdown or organized labor strikes that affect public transportation.

4. arrangements canceled by a tour operator, cruise line, airline, rental car company, hotel, condominium, railroad, motor coach company, or other supplier of travel services, resulting from Financial Insolvency;

5. being directly involved in a documented traffic accident while en route to departure;

6. being hijacked, quarantined, required to serve on a jury, or required by a court order to appear as a witness in a legal action, provided you, Family Member traveling with you or a Traveling Companion is not 1) a party to the legal action, or 2) appearing as a law enforcement officer;

7. your Home made uninhabitable by fire, flood, volcano, earthquake, hurricane or other natural disaster;

8. your destination made uninhabitable by fire, flood, volcano, earthquake, hurricane or other natural disaster;

9. mandatory evacuation ordered by local authorities at your destination due to hurricane or other natural disaster;

10. being called into active military service to provide aid or relief in the event of a natural disaster;

11. a documented theft of passports or visas;

12. a Terrorist Act which occurs in your departure city or in a city which is a scheduled destination for your Covered Trip provided the Terrorist Act occurs within 30 days of the Scheduled Departure Date for your Covered Trip or during your Covered Trip;

13. a cancellation of your Covered Trip if your arrival on the Covered Trip is delayed and causes you to lose 50% or more of the scheduled Covered Trip duration due to the reasons covered under the Covered Trip Delay Benefit;

14. a transfer of employment of 250 miles or more;

15. your involuntary termination of employment or layoff and was not under your control. You must have been continuously employed with the same employer for 1 year prior to the termination or layoff. This provision is not applicable to temporary employment, independent contractors or self-employed persons;

16. your host at destination is hospitalized or dies, provided you made previous arrangements to stay at the host’s personal residence during the Covered Trip.

If you claim does not fit within one of the 16 listed above claims you do not have a chance. The next issue then is to look at your claim and see if it fits the claim you have identified perfectly. The language of the coverage list is defined in the policy in preceding paragraphs.

For Example, let’s look at the Everest season ending this year.

You might first think that if you bought a policy and could not climb Mount Everest this year because of the deaths and closing of the ice fall you would have a claim under paragraph 2, “organized labor strikes.” However, I don’t think that would qualify because Sherpa’s are not common carriers nor are they public transportation. Common carriers are airlines, bus lines, etc., and I doubt much in Nepal except the airline would qualify. Public transportation is like your local city bus service…..which has not made to the south side base camp yet.

Paragraph 3 would not work for about the same reasons.

Paragraph 8 may qualify. “your destination made uninhabitable by fire, flood, volcano, earthquake, hurricane or other natural disaster” However, the top of Mt. Everest, your destination was fine; the route to your destination was destroyed.

Paragraph 9 would work if the Nepalese government had closed base camp or Everest from the south side, however, all news reports stated just the opposite, the Nepalese government worked hard to keep the Sherpa’s on the mountain and working.

As you can see, the language of the policy fits European vacations, the issues and claims the policies were originally written for.

Another policy My Travel Guard had this list of claims:

The Company will reimburse the Insured a benefit, up to the Maximum Limit shown in the Schedule or Declarations Page if an Insured cancels his/her Trip or is unable to continue on his/her Trip due to any of the following Unforeseen events:

(a) Sickness, Injury or death of an Insured, Family Member, Traveling Companion or Business Partner;

(1) Sickness or Injury of an Insured, Traveling Companion or Family Member traveling with the Insured must be so disabling as to reasonably cause a Trip to be canceled or interrupted or which results in medically imposed restrictions as certified by a Physician at the time of Loss preventing continued participation in the Trip;

(2) Sickness or Injury of a Family Member not traveling with the Insured Such disability must be so disabling as to reasonably cause a Trip to be canceled or interrupted and must be certified by a Physician;

(3) Sickness or Injury of the Business Partner must be so disabling as to reasonably cause the Insured to cancel or interrupt the Trip to assume daily management of the business. Such disability must be certified by a Physician;

(b) Inclement Weather causing delay or cancellation of travel;

(c) Strike causing complete cessation of travel services at the point of departure or Destination;

(d) the Insured’s Primary Residence or Destination being made Uninhabitable or Inaccessible by Natural Disaster, vandalism or burglary;

(e) the Insured or Traveling Companion is hijacked, quarantined, subpoenaed or required to serve on a jury;

(f) the Insured or Traveling Companion is called to active military service or military leave is revoked or reassigned.

The following only apply if the Additional Unforeseen Events Upgrade is purchased:

(a) Sickness, Injury, death or hospitalization of the Insured’s Host at Destination. A Physician must certify the Sickness or Injury;

(b) Financial Default of an airline, Cruise line or tour operator provided the Financial Default occurs more than 14 days following an Insured’s effective date for the Trip Cancellation or Trip Interruption Benefits. There is no coverage for the Financial Default of any person, organization, agency, or firm from whom the Insured purchased travel arrangements supplied by others;

(c) a Terrorist Incident in a City listed on the Insured’s itinerary within 30 days of the Insured’s scheduled arrival;

(d) the Insured or Traveling Companion is involuntarily terminated or laid off through no fault of his or her own provided that he or she has been an active employee for the same employer for at least 1 year. Termination must occur following the effective date of coverage. This provision is not applicable to temporary employment, seasonal employment, independent contractors or self-employed persons;

(e) the Insured and/or Traveling Companion is directly involved in or delayed due to an traffic accident, substantiated by a police report, while en route to the Insured’s Destination;

(f) the Insured or a Traveling Companion being the victim of a Felonious Assault within 10 days prior to the Departure Date. No coverage is provided for Felonious Assault committed by another Insured, Family Member, Traveling Companion or Traveling Companion’s Family Member;

(g) mechanical/equipment failure of a Common Carrier that occurs on a scheduled Trip and causes complete cessation of the Insured’s travel and results in a Loss of 50% of the Insured’s Trip length;

(h) the Insured or Traveling Companion is required to work during his/her scheduled Trip. He/she must provide proof of requirement to work, such as a notarized statement signed by an officer of his/her employer. In the situation of self-employment, proof of self-employment and a notarized statement confirming that the Insured is unable to travel due to his or her job obligations will be required;

(i) the Insured or Traveling Companion is directly involved in a merger, acquisition, government required product recall or bankruptcy proceedings and must be currently employed by the company that is involved in said event;

(j) the Insured’s or Traveling Companion’s company is deemed to be unsuitable for business due to burglary or Natural Disaster and the Insured or Traveling Companion is directly involved as a Key Employee of the disaster recovery team.

Here paragraph c might qualify, if you can call the actions of the Sherpa’s a strike. “Strike causing complete cessation of travel services at the point of departure or Destination” However, once you read the definition of a strike as defined in the policy, it will not qualify.

“Strike” means a stoppage of work which:

(a) is announced, organized, and sanctioned by a labor union; and

(b) interferes with the normal departure and arrival of a Common Carrier.

Again, Sherpa’s are not common carriers and not recognized by any labor union.

After reading all the covered claims, I don’t think any would apply to the Everest disaster this year.

So

If you are looking for insurance coverage for an outdoor recreation trip start with what you already have and then try to fill in the gaps with what you can buy.

Your homeowner’s/condo/renter’s insurance may provide coverage for your gear while traveling. That coverage is usually only for it being total loss, not just delayed. You may have additional protection so check this policy first.

The credit cards you paid for your trip with, may provide coverage that a lot of travel policies cover.

Go over your health insurance policy with a fine-tooth comb. Make sure you understand what coverage you have and do not have. Again, buy a policy to fill in the gaps. Compare the coverage on the travel insurance policies to the coverage provided by a travel medical insurance policy. Most travel medical insurance policies have a broader coverage.

Keep track of all of your receipts. Without receipts, you don’t have a claim. Keep a diary tracking date and times because you may have to prove what happened when. You might be able to job your memory with your photographs also.

The risk of outdoor recreation trips is greater than just the chance of getting hurt or injured on the water, under the ground or on the mountain. You may never get the chance to try.

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) 334-8529

 

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West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266

West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266

West Coast Life Insurance Company, a Nebraska corporation, Plaintiff – Appellee, v. Martha Hoar, as the personal representative of the other Estate of Stephen M. Butts; Telluride Properties, Llc., a Colorado Limited Liability Company; Telluride Properties, Inc., a Colorado corporation; Albert D. Roer, an individual; Polly Lychee, an individual, Defendants – Appellants.

No. 07-1080

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

558 F.3d 1151; 2009 U.S. App. LEXIS 5266

March 6, 2009, Filed

PRIOR HISTORY: [**1]

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 05-CV-01765-EWN-BNB).

W. Coast Life Ins. Co. v. Hoar, 505 F. Supp. 2d 734, 2007 U.S. Dist. LEXIS 5442 (D. Colo., 2007)

COUNSEL: Blain D. Myhre (Stuart Pack with him on the briefs), Isaacson Rosenbaum P.C., Denver, Colorado, for Defendants-Appellants.

Stephen G. Masciocchi (Lee F. Johnston with him on the briefs), Holland & Hart LLP, Denver, Colorado, for Plaintiff-Appellee.

JUDGES: Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

OPINION BY: MURPHY

OPINION

[*1153] MURPHY, Circuit Judge.

I. INTRODUCTION

West Coast Life Insurance Company (“WCLI”) brought suit in federal district court seeking rescission of an insurance policy based upon an alleged misrepresentation by Stephen Butts. Butts, who participated in heli-skiing on numerous occasions, stated in his insurance application that he did not engage in any hazardous activities. Butts’s estate and intended beneficiaries asserted counterclaims against WCLI alleging: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act. The district court dismissed Defendants’ Consumer Protection Act counterclaim with prejudice. It then granted WCLI’s motion for summary judgment, concluding Butts had knowingly made a false statement of material fact on which WCLI relied [**2] in issuing him the life insurance policy. On appeal, Defendants contend the district court erred in granting summary judgment to WCLI on its rescission claim because genuine issues of material fact exist as to whether: (1) there was a false statement or concealed fact in the Butts application, (2) Butts knowingly made the false statement or concealed the facts, and (3) WCLI was chargeable with the knowledge Butts engaged in heli-skiing. Defendants also appeal the district court’s grant of summary judgment with respect to their bad faith claim. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

II. BACKGROUND

1. Factual Background

In August 2004, Butts (through his company, Defendant Telluride Properties, Inc.), Defendant Albert Roer, and Defendant Polly Lynchee formed a new company, Defendant Telluride Properties, LLC. 1 The three principals entered into a buy-sell agreement requiring each principal to sell his or her interest in the business to the remaining principals in the event of his or her death. The agreement was financed by insurance policies on the lives of each of the three principals. On September 21, 2004, Butts contacted WCLI agent Sharon Evanson by phone to [**3] complete an application for a three million dollar life insurance policy (the “Butts Application”). Evanson read the questions on the application and transcribed Butts’s responses.

1 The other Defendant is Martha Hoar, the personal representative of Butts’s estate.

The fifth question of the Butts Application (“Question 5”) asked if Butts “[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or hobby.” Butts answered the question in the negative. The Butts Application contained a declaration that all statements and answers were full, complete, and true to the best of Butts’s “knowledge and belief.” Butts did not at any point during the call mention he participated in “heli-skiing.” Heli-skiing involves flying by helicopter to the top of a backcountry mountain and skiing down the mountain, usually with the escort of guides.

Alex Chu, a senior life insurance reporter at First Financial Underwriting Services, Inc. (“First Financial”), conducted a telephonic interview with Butts on October 12, 2004. First Financial is an independent, third-party company that, at the request of its insurance company clients, [**4] [*1154] gathers information about the lifestyles and finances of life insurance applicants, typically through telephone interviews. Chu asked Butts what he did for recreation and exercise in his spare time, to which Butts answered he skied and golfed. Chu also asked Butts if he engaged in “any hazardous activities.” Butts stated he was involved only in scuba diving and private aviation as a pilot. Butts did not seek any clarification of this question or voice concerns or confusion as to the meaning of “hazardous activities.” During Chu’s tenure at First Financial, applicants had identified heli-skiing in response to the hazardous activity question.

Under a heading titled “Aviation-Recreation-Driving Record,” Chu’s report to WCLI (the “First Financial Report”) detailed Butts’s piloting experience, briefly noted his scuba diving activities, and stated: Butts “also enjoys skiing and golfing in his spare time. He reported no other recreational or hazardous pastimes in which he is active on a regular basis.”

In October 2004, Mark Youngquist, an underwriter for WCLI, underwrote a three million dollar policy (the “Butts Policy”) insuring Butts’s life. In so doing, Youngquist reviewed the Butts Application, [**5] Butts’s medical records, the First Financial Report, and a questionnaire completed by Butts regarding his aviation activities. Youngquist, who worked as an underwriter since 1995 for other insurance companies, had worked for WCLI for less than a month when he approved the Butts Application. The WCLI underwriting manual, published by reinsurer Swiss Re, does not rate resort skiing as an activity to be factored into the underwriting process. “Heli-skiing,” however, is a rated activity requiring the insured to pay a higher premium. Youngquist never referred to this rating table during the process of underwriting the Butts Policy.

Based on the information before him, Youngquist believed Butts engaged only in non-rated resort skiing. Youngquist made no inquiry into the nature of the “skiing” activity mentioned in the First Financial Report. Youngquist determined the Butts Policy should be issued on a “Standard, Non-Tobacco” rating. 2 On November 5, 2004, WCLI issued the Butts Policy, which expressly incorporated the Butts Application.

2 Neither party addresses the significance, if any, of the disclosure by Butts of his scuba diving activities. We therefore deem it irrelevant.

On January 15, [**6] 2005, Butts traveled to British Columbia with a group of friends for a week of heli-skiing. The group hired heli-skiing operator Selkirk-Tangiers Helicopter Skiing LLP (“Selkirk-Tangiers”). On January 18, 2005, Butts was heli-skiing with his friends when an avalanche broke above them. The avalanche caught Butts, and swept him into some trees. Within minutes, Butts was found dead. He suffered a broken neck as a result of the avalanche.

During her deposition, Butts’s ex-wife testified he took approximately ten to fifteen heli-skiing trips with Selkirk-Tangiers and additional trips to Canada with another heli-skiing operator. Butts took heli-skiing trips to British Columbia with Selkirk-Tangiers every year for at least six consecutive years prior to his application. Each year, Butts had signed a Selkirk-Tangiers “Release of Liability, Waiver of Claims, Assumption of Risk and Indemnity Agreement,” each of which included the following language:

I am aware that wilderness skiing involves risks, dangers and hazards in addition to those normally associated with downhill skiing. Avalanches occur frequently in the alpine terrain used for [*1155] wilderness skiing and may be caused by natural forces or [**7] by skiers. I acknowledge and accept that the [o]perators and their staff may fail to predict whether the alpine terrain is safe for skiing or whether an avalanche may occur. The alpine terrain used for wilderness skiing is uncontrolled, unmarked, not inspected and involves many risks, dangers and hazards in addition to that of avalanche.

* * *

I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH WILDERNESS SKIING AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR LOSS RESULTING THEREFROM.

Selkirk-Tangiers provides its guests with: (1) avalanche rescue and survival training; (2) helicopter safety training; and (3) specialized equipment such as “avalanche beacons,” which signal to rescuers the location of skiers buried in avalanches. Prior to each of his heli-skiing trips with Selkirk-Tangiers, Butts participated in mock avalanche drills and other onsite, hands-on training on helicopter safety protocols and avalanche rescue and survival. Although not required by Selkirk-Tangiers, Butts also had purchased and used an “Avalung” on heli-skiing trips in 2004 and 2005. An Avalung is a product designed [**8] to provide a few minutes of air should its user become buried in an avalanche.

After receiving notification of Butts’s death, WCLI initiated an investigation. WCLI received evidence indicating Butts had previously participated in heli-skiing trips. In March 2005, WCLI’s chief underwriter, Steven Hetherington, composed an opinion as to the impact of heli-skiing on the risk assumptions for the Butts Policy. Hetherington determined that had Butts disclosed his heli-skiing activities, the Butts Policy would have been rated in the amount of an extra $ 2.50 per $ 1000 of coverage. Marilyn Reed, WCLI’s Vice President of Underwriting, adopted Hetherington’s underwriting opinion.

According to WCLI underwriters, had Butts disclosed his heli-skiing avocation, his annual premium would have almost tripled, rising from $ 4880 to $ 12,380. WCLI’s independent agent, Stuart Bachman, contacted other life insurance companies to determine if they applied an additional rating for heli-skiing. Every carrier Bachman contacted indicated heli-skiing would result in an additional rating of at least $ 2.50 per $ 1000 dollars of coverage.

WCLI’s contestable claims committee met on July 26, 2006, to discuss and evaluate [**9] the Butts Policy claim. The committee considered whether “a reasonable objective person’s interpretation” of Question 5 would have led such a person to disclose a heli-skiing avocation such as that of Butts. The committee did not consider whether Butts was an expert skier, whether he believed heli-skiing was hazardous, or if he had heli-skied previously without incident because it felt such information was irrelevant to its decision. The committee voted unanimously to deny payment under the Butts Policy based upon Butts’s failure to disclose he regularly engaged in heli-skiing.

2. Procedural History

WCLI filed its complaint in the district court seeking: (1) rescission of the Butts Policy pursuant to Colorado law, and (2) a declaration that the Butts Policy was void ab initio and WCLI was thus not liable to Defendants thereunder. In their answer, Defendants asserted state law counterclaims for: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 to -115. The district court [*1156] dismissed Defendants’ Consumer Protection Act counterclaim with prejudice.

Both parties moved for summary judgment. The district court granted [**10] WCLI’s motion for summary judgment, concluding: (1) Butts had made a false statement of fact or concealed a fact in his application for insurance because a reasonable person would have understood heli-skiing was a hazardous activity for purposes of Question 5, (2) Butts knew heli-skiing was a hazardous activity and knowingly concealed the fact he engaged in it, (3) the concealment materially affected the risk assumed by WCLI, (4) WCLI was ignorant of the false statement of fact or concealment of fact and was not chargeable with knowledge of the fact, and (5) WCLI relied on Butts’s false statement in issuing the Butts Policy.

On appeal, Defendants contend the district court erred in granting summary judgment to WCLI on its rescission claim because genuine issues of material fact exist as to whether: (1) there was a false statement or concealed fact in the Butts application, (2) Butts knowingly made the false statement or concealed the facts, and (3) WCLI was chargeable with the knowledge Butts heli-skied. Defendants also appeal the district court’s grant of summary judgment with respect to their bad faith claim.

III. DISCUSSION

1. Motion to Strike

In its motion to strike, WCLI contends [**11] this court should not consider certain arguments and evidence raised by Defendants for the first time on appeal. Specifically, in their reply brief, Defendants for the first time offer statistical evidence regarding auto accident fatalities and discuss the Colorado Ski Safety Act requirement that ski resort lift tickets warn of the risk of resort skiing as support for their argument that reasonable minds could differ on whether heli-skiing is a hazardous activity. Defendants ask the court to take judicial notice of the accident statistics. In addition, Defendants argue the Colorado Ski Safety Act cite was properly included in their reply brief in order to rebut an argument raised in WCLI’s answer brief.

[HN1] “Whether an appellate court will for the first time take judicial notice of a judicially notable fact rests largely in its own discretion.” Mills v. Denver Tramway Corp., 155 F.2d 808, 812 (10th Cir. 1946). Defendants offer no explanation for why they did not seek to introduce the auto accident fatality statistics before the district court. In addition, consideration of this evidence for the first time in Defendants’ reply brief denies WCLI the opportunity to contest or rebut the evidence. [**12] Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). We therefore decline to take judicial notice of the auto accident fatality statistics and grant WCLI’s motion to strike these statistics. See Am. Stores Co. v. Comm’r of Internal Revenue, 170 F.3d 1267, 1270 (10th Cir. 1999) ( [HN2] “Judicial notice is not a talisman by which gaps in a litigant’s evidentiary presentation . . . may be repaired on appeal.” (quotation omitted)).

As to the introduction of Colorado’s statutory requirement that ski resort lift tickets warn of the risk of resort skiing, Defendants maintain this evidence was properly introduced for the first time in their reply brief in response to an argument in WCLI’s answer brief. Specifically, it rebuts WCLI’s contention that the requirement that individuals sign a release before engaging in heli-skiing supports the proposition a reasonable person would view heli-skiing as hazardous. While WCLI’s precise argument regarding the release requirement was raised before the district court, the evidence Defendants now seek to introduce to rebut the argument [*1157] was never brought to the attention of the district court. This court has stated [HN3] “[i]n reviewing a grant of summary judgment, our [**13] inquiry is limited to the summary judgment record before the district court when the motion was decided.” Feichko v. Denver & Rio Grande W. R.R., 213 F.3d 586, 593 n.5 (10th Cir. 2000). In addition, as discussed above, [HN4] this court is reluctant to consider evidence raised only in a reply brief, leaving the opposing party no opportunity to challenge its validity or relevance. See Am. Stores Co., 170 F.3d at 1270. We therefore grant WCLI’s motion to strike this evidence.

2. Rescission of the Life Insurance Policy

[HN5] “We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonprevailing party.” Mullin v. Travelers Indem. Co. of Conn., 541 F.3d 1219, 1222 (10th Cir. 2008). [HN6] “Summary judgment is appropriate if there is no genuine dispute over any material fact, and a party is entitled to prevail as a matter of law.” Id. (quotation omitted). [HN7] Under Colorado law, to avoid a life insurance policy due to misrepresentations in the application, an insurer must prove:

(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed [**14] the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy.

Hollinger v. Mut. Benefit Life Ins. Co., 192 Colo. 377, 560 P.2d 824, 827 (Colo. 1977) (footnote omitted). Defendants contend the district court erred in concluding no genuine issue of material fact existed as to the first, second, and fourth elements of the Hollinger standard.

i. The First and Second Hollinger Elements

The first element, “the applicant made a false statement,” is encompassed in the second element, “the applicant knowingly made a false statement.” Id. Because there is significant overlap in the parties’ arguments regarding the first and second elements, we consider the two elements together. Wade v. Olinger Life Insurance Co. holds that [HN8] in determining whether an applicant knowingly made a false statement, a court must look beyond the applicant’s mere knowledge she engaged in the activity [**15] which was allegedly required to be disclosed by the open-ended insurance question. 192 Colo. 401, 560 P.2d 446, 452 (Colo. 1977). Namely, “to protect innocent insurance applicants, an applicant must be reasonably chargeable with knowledge that the facts omitted or misrepresented were within the scope of questions asked on the application.” Id. The court further explained that in the context of answering an insurance application question which calls for a value judgment, “[a] particular misrepresentation . . . must be such that a [r]easonable person would, under the circumstances, have understood that the question calls for disclosure of specific information.” Id. The court elaborated on this standard in Hollinger, a companion case to Wade. Hollinger, 560 P.2d at 827. In Hollinger, the court explained the standard applied in Wade was “whether a reasonable person, with the applicant’s physical or mental characteristics, under all the circumstances, would understand that the question calls for disclosure of specific information.” Id.

[*1158] Question 5 asked Butts if he “[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or [**16] hobby.” WCLI contends Butts’s negative response to Question 5 was unreasonable in light of his yearly heli-skiing vacations. Defendants argue reasonable minds could differ as to whether heli-skiing constitutes a hazardous activity, and thus the question should have been submitted to the jury. Defendants further contend because Butts believed heli-skiing was not a hazardous activity, his response to Question 5 could not have constituted a misrepresentation.

This court must thus decide whether a reasonable person in Butts’s position would know heli-skiing constituted a hazardous activity for purposes of the insurance policy. We agree with the district court that reasonable purchasers of life insurance understand they are agreeing to pay a premium in exchange for the insurer’s promise to pay benefits in the event of death, and thus an insurer would be interested in learning of activities that increase the chance of premature death. Question 5 asks applicants whether they engage in hazardous activities and provides as examples of hazardous activities, skydiving, motorized racing, and scuba diving. A reasonable applicant understands these examples are provided to have the applicant determine [**17] if she engages in activities that might pose risks similar to those posed by the enumerated activities.

WCLI presented evidence indicating a heli-skier is approximately 18,702 times more likely to be killed in an avalanche than an individual skiing inbounds at a ski area. 3 In addition, the heli-skiing operator Butts skied with required its clients to: (1) demonstrate proficiency in avalanche rescue techniques and equipment, (2) undergo training on safety protocols associated with helicopter loading, flight, offloading, and landing, and (3) carry an avalanche beacon while skiing. Such training took place prior to the execution of a waiver and release agreement in which Butts recognized: (1) wilderness skiing involves “risks, dangers and hazards in addition to those normally associated with downhill skiing,” (2) avalanches occur frequently in the alpine terrain used for wilderness skiing, (3) the ski outfitter’s “staff may fail to predict whether the alpine terrain is safe for skiing or whether an avalanche may occur,” and (4) the “alpine [**18] terrain used for wilderness skiing is uncontrolled, unmarked, not inspected and involves many risks, dangers and hazards in addition to that of avalanche.” Additionally, Butts chose to purchase and carry an “Avalung” avalanche emergency air supply while heli-skiing.

3 The probability of an avalanche fatality occurring while heli-skiing or snowcat skiing is approximately 1 per 29,000 visits.

Based on these facts, a reasonable person in Butts’s position would understand Question 5 calls for an applicant to report heli-skiing. As the district court explained, “a reasonable, ordinary person would understand that a sport whose participants equip themselves with ‘avalanche beacons’ and ‘Avalungs’ and then ride in helicopters to the summits of isolated backcountry mountains in order to ski down ungroomed alpine terrain . . . falls along with sky diving, hang gliding, and scuba diving into the commonsense category of ‘hazardous’ activities.” Butts’s status as an experienced heli-skier who engaged in the activity in the past without incident does not change the conclusion it was unreasonable for an individual in his position to answer “no” to Question 5. Butts knew of the great risks of heli-skiing. [**19] Notably, [*1159] Defendants’ expert declined to refute the Utah Avalanche Center’s statement that “[a]lmost all avalanche accidents occur to recreationists who are very skilled at their sport.”

Defendants contend this court should rely on the expert opinion of Vincent Anderson, a certified alpine and ski mountaineering guide who, without citing any statistical evidence, states in a report that, in his opinion, the risks involved in heli-skiing are not unreasonably high and are not greater than those involved in skiing at a resort. This opinion, however, does little to rebut the statistical evidence presented by WCLI demonstrating a heli-skier is approximately 19,000 times more likely to die in an avalanche than someone skiing within bounds at a ski resort. Moreover, it is difficult to see how the subjective opinion testimony of this one individual, lacking any statistical support, does much to support the proposition a reasonable person with Butts’s characteristics would not understand heli-skiing to be a hazardous activity. This is especially true where heli-skiers such as Butts were required to sign a waiver explicitly acknowledging heli-skiing was far more dangerous than resort skiing.

Finally, [**20] Defendants argue that because of the language at the end of the Butts Application, wherein Butts affirmed all answers in the “application [were] full, complete and true to the best of [his] knowledge and belief,” Question 5 solicited a subjective answer and thus could not be a false statement of fact. In support of this argument Defendants cite to Hauser v. Life General Security Insurance Co., 56 F.3d 1330, 1335 (11th Cir. 1995), in which the Eleventh Circuit stated, “[w]here an insurer only requests the disclosure of information to the best of the insured’s ‘knowledge and belief,’ and where the applicant so complies, we will decline to protect the insurer from a risk it assumed by virtue of the contractual language it drafted.” Id. at 1335 (quotation omitted). The court went on to state, however:

[w]hat the applicant in fact believed to be true is the determining factor in judging the truth or falsity of his answer, but only so far as that belief is not clearly contradicted by the factual knowledge on which it is based. In any event, [HN9] a court may properly find a statement false as a matter of law, however sincerely it may be believed. To conclude otherwise would be to place insurance [**21] companies at the mercy of those capable of the most invincible self deception . . . .

Id. (quotation omitted). Here, even assuming Colorado courts would follow the reasoning of Hauser, any belief Butts may have had in the non-hazardous nature of heli-skiing is contradicted by his underlying knowledge of the significant risks inherent in heli-skiing as indicated by the training he was required to undertake, waivers he signed, and equipment he used. We therefore affirm the district court’s conclusion that as a matter of law Butts knowingly made a false statement of fact.

ii. The Fourth Element

In order to satisfy the fourth element of the Hollinger standard, WCLI must demonstrate it was “not chargeable” with the knowledge Butts heli-skied. 560 P.2d at 827. [HN10] Colorado has yet to adopt a test for determining when an insurer is “chargeable with knowledge” of an undisclosed material fact. The parties agree, however, and the district court concluded, the Colorado Supreme Court would endorse the following standard: an insurer is chargeable with knowledge of undisclosed information only where it “had sufficient information that would have put a prudent man on notice and would have caused him to [**22] start an inquiry” which would have uncovered the truth. Major Oil Corp. v. [*1160] Equitable Life Assurance Soc’y, 457 F.2d 596, 604-05 (10th Cir. 1972).

Butts gave a negative response to Question 5, indicating he did not engage in any hazardous activities. Later, however, in response to the question of what he did for recreation and exercise in his spare time during his phone interview with Chu, Butts stated he enjoyed skiing and golfing. In response to Chu’s question about hazardous activities, Butts stated only that he was involved in scuba diving and private aviation as a pilot. WCLI’s underwriter, Youngquist, interpreted Butts’s response that he participated in skiing in his spare time, to mean he engaged in resort skiing. Youngquist had only worked for WCLI for about a month, and was unaware the underwriting manual treated the various kinds of skiing differently, with heli-skiing, but not resort skiing, meriting an increase in the insured’s premium. He did not consult the manual during the course of underwriting Butts’s Policy. Defendants contend that based on Butts’s disclosure that he skied, WCLI had a duty to conduct an investigation into the nature of Butts’s skiing precisely because [**23] of the six classes of skiing identified for differing treatment in the underwriting manual. A reasonably prudent insurer, they argue, would have been put on notice to conduct further investigation into the type of skiing in which Butts engaged.

In deciding to insure Butts, Youngquist had before him: (1) Butts’s negative response to Question 5, (2) Butts’s report to Chu stating the only hazardous activities in which he engaged were scuba diving and private aviation, and (3) Butts’s report to Chu stating he “also enjoy[ed] skiing and golfing in his spare time.” Thus, even if Youngquist had been aware of the classifications in the underwriting manual, such awareness would not have sufficed to put a prudent underwriter on notice he should further investigate a situation where an applicant reports recreational skiing and denies engaging in any hazardous activities. As the district court explained, “[i]f such were the burden of a prudent insurance company, then it would seem that any report of a generally lowhazard recreational activity — e.g., wrestling, juggling, or fishing — would require the insurer to investigate the myriad possible ‘extreme’ variants thereof.” Cf. Am. Eagle Fire Ins. Co. of N.Y. v. Peoples Compress Co., 156 F.2d 663, 667 (10th Cir. 1946) [**24] (stating “honesty, good faith, and fair dealings require [an insured] to communicate [facts material to the risk] to his insurer.”).

Accordingly, [HN11] courts have generally found insurance companies chargeable with knowledge of an undisclosed fact only where it has knowledge of evidence indicating the applicant was not truthful in answering the particular application question at issue. See Major Oil Corp., 457 F.2d at 598-604 (concluding insurer was chargeable with knowledge of applicant’s alcohol problem where another insurance company considering the applicant informed the insurer of the applicant’s ongoing alcohol problem and a report by the Medical Information Bureau received by the insurer prior to issuance of the policy revealed the insured had a drinking habit); Columbian Nat. Life Ins. Co. v. Rodgers, 116 F.2d 705, 708 (10th Cir. 1940) (concluding insurer was chargeable with knowledge that applicant had previously been declined insurance despite applicant’s answer to the contrary where it had in its possession documentation indicating “that the applicant had either been declined or had been rated differently from the established rates, or that some other unusual circumstances were [**25] involved.”). Here, WCLI had no such evidence. Butts twice informed WCLI he did not engage in hazardous activities. Contrary to Defendants’ assertions, Butts’s statement he engaged in the recreational activities of skiing and [*1161] golfing does not constitute evidence or raise a red flag as to his lack of truthfulness in answering the hazardous activities question, as recreational resort skiing is not considered a hazardous activity. See Barciak v. United of Omaha Life Ins. Co., 777 F. Supp. 839, 843 (D. Colo. 1991) (concluding insurer was not chargeable with knowledge of applicant’s heart condition where applicant did not disclose he received medical care for chest pain, extensive medical tests, and had been referred to a cardiologist, but in a subsequent phone interview stated he had seen a doctor for a headache and received a variety of tests, including a chest x-ray and EKG, and the doctor’s diagnosis was unknown.).

We therefore affirm the district court’s conclusion that WCLI has met the Hollinger elements as a matter of law entitling it to summary judgment on its claim for rescission of the Butts Policy.

3. Defendants’ Counterclaim

Defendants’ bad faith counterclaim depends on the existence [**26] of a valid and enforceable insurance policy. Because we affirm the district court’s ruling that Butts’s nondisclosure voided the Butts Policy entitling WCLI to rescission, Defendants’ counterclaim fails.

IV. CONCLUSION

Because WCLI was entitled to rescission of the Butts Policy, the district court’s decision is affirmed.

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Ohio Zip Line Association meeting to deal with Ohio Department of Agriculture wanting to control Zip Lines in the State

Join now and fight or forever hold your piece

Some of you may know that in the state of Ohio the Department of Agriculture has been discussing creating legislation for zip

English: Zip Line Canopy tour in Jaco Beach. O...

lines.  Some of the owners of Zip Line and Canopy Tours in the state have gotten together and formed the Ohio Zip Line Association.  As a group we have been working with the state to figure out where zip lines may or may not fit with their legislation.

We wanted to send an email notifying all interested parties that we will be holding an open meeting of the Ohio Zip Line Association for anyone who may want an update of what is going on in Ohio, or anyone who may want to become members of our group. 

The next Ohio Zip Line Association meeting, it will be held on:

April 18, 2014 at 1:00 pm

Location: 

3347 McDowell Rd.

Grove City, OH 43123

If you would like to be a part of the meeting, but cannot attend, you can use the following call in number:

Dial +1 (312) 757-3131+1 (312) 757-3131

Access Code: 130-237-621

Audio PIN: Shown after joining the meeting

Meeting ID: 130-237-621

Feel free to email me off-list if you have any questions.

Lori Pingle

Owner

ZipZone Canopy Tours

Board President

Ohio Zip Line Association

Direct: 614-906-5674614-906-5674

http://www.zipzonetours.com

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) Edit Law

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

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#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, Ohio, Ohio Zip Line Association, Zip Lines,

 

 

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