Changing plans: CHTC gets brief reprieve on issue of insurance

Graham Jaehnig/Daily Mining Gazette Copper Harbor Trails Club Executive Director Nathan Miller and the Keweenaw County Board, under the advisement of the county’s municipal insurance agent, have been haggling over insurance issues since last fall, when the county first instructed the club that it needs to increase its general liability insurance from $1million to $5 million. While Miller has been trying to find an insurer that will write such a policy, he has repeatedly stated he has been unsuccessful in the attempt, because municipalities do not require it. The county, however, is concerned that in the event of a catastrophic accident on the trails, which are on county-owned land, that it could not afford a legal defense, nor a settlement, in the event of a lawsuit.

EAGLE RIVER — The issue of the Copper Harbor Trails Club’s general liability insurance policy was again an agenda item of the regular October meeting of the Keweenaw County Board Wednesday, when Board Chairman Don Piche addressed CHTC Executive Director Nathan Miller on the topic.

Piche said that as the 2021 mountain bike season is drawing to a close, the board, along with their municipal insurance agent, Mark Hannula, will give the club until the Spring of 2022 to increase their general liability insurance policy from $1million to $5 million.

“What we would like is for you to look for insurance — the proper insurance by spring, to cover the participants on the trails,” Piche said, “and if that doesn’t occur, our insurance (agent) suggests that we close those four trails permanently.”

Piche added that what their insurance providers also suggested is that the county have those trails dismantled.

“I don’t want to see that happen,” Piche said. “I know there’s a lot of work and time into them, so — but what we want is for you to look for insurance now, by spring.”

Hannula spoke at the regular August meeting, when he repeated an earlier warning the board gave the CHTC in July: that if they did not increase their general liability insurance limit from $1 million to $5 million, they would have to close the trails. Hannula told Miller that he had until Sept. 1 to present him with a copy of a new insurance policy or the County would force them to close their trails.

Miller has continued to explain to Hannula that it is a difficult request, because $5 million general liability insurance policies are not generally offered, as that is five times the standard across the United States. Miller explained that insurance providers do not offer policies that high, because municipalities do not require it.

The board in the past has expressed concerns over liability coverage in the event of a catastrophic injury, and what coverage would be provided through a $1 million policy, particularly in the case of legal costs incurred in defending against a suit.

Miller told the Daily Mining Gazette in Sept. that the club did locate a policy that would add $5 million to its current policy, bringing the total liability to between $6-7million.

The policy was submitted in August and was reviewed by the Hunnala, a number of the County Commissioners, and the County Attorney Chuck Miller (no relation between the attorney and the trails club officer), but was not accepted for several reasons, including an excessive number or exclusions.

“The problem with the policy is (that) if you look at the exclusions in it, it says the participants are not covered, but the spectators are,” Piche explained. “That’s not what we’re looking for. We want the participants insured.”

Miller told the board that he appreciated a response from the board, and said that the club’s new insurance agent has been looking into the situation, adding that he might have some additional leads.

“Now that we have some downtime, hopefully, we’ll be able to get something in place by the Spring, and we’ll be able to open those trails again,” said Miller. “So, we appreciate you giving us a little bit more time while we get this stuff figured out.”

The board’s main concern is that in the event of a lawsuit, not only would the settlement amount be of concern, but so would the county or the township’s legal costs as a result of litigation. While there are state and federal protections regarding use of public lands, Scott Chapin, bicycle industry risk specialist with MarshMcLennan Agency, stated in a 2019 company blog titled: Building Mountain Bike Trails can be Risky Business (https://www.marshmma.com/blog/building-mountain-bike-trails-can-be-risky-business), that what makes the liability exposures unique for such trails is that they are primarily built on public land and used by the general public.

Chapin wrote that as a general rule, the International Mountain Bicycling Association (IMBA) recommends non-governmental organizations avoid stating they are responsible for “maintaining, operating or managing” trails. It is fine to assist, but unwise to accept responsibility for things that you do not have control over. In spite of the IMBA’s recommendations, stated Chapin, some land managers, in this case Keweenaw County, want to shift 100 percent of the liability to the trail building organization. Land managers’ legal counsel often encourage shifting as much of the liability to other entities.

Headwaters Economics, an independent, nonprofit research group that works to improve community development and land management decisions, stated in a 2016 report (https://headwaterseconomics.org/wp-content/uploads/trails-library-legal-overview.pdf) that to encourage landowners to open private lands to the public for recreation, all state legislatures have adopted recreational use statutes that provide a shield from liability for landowners who allow public access to trails across their land. The same report goes on to caution that: “Recreational use statutes, however, do not relieve the landowner from all responsibilities to recreational trail users.

For example, landowners are not required to prevent harm to recreational users, but they must not engage in willful or malicious conduct. Generally, under the terms of a recreational use statute, a landowner has a reduced duty of care and a reduced duty to warn of dangerous conditions on the trail. However, recreational use statutes retain landowner liability for willful or malicious actions.

During the August regular meeting, Miller said there is some debate over whether the statute extends to public landowners, something with which Hannula has agreed, saying that is the part that is yet unknown.


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