Woman drowns during training - Hidden Paradise Campground, Indiana

[poseident]

Just an observation:

Having looked at the company's site, I see two male CDs. One's the retired Marine, who could be called a "big guy" due to his apparent fitness level. The other one, for the opposite reason. (If the pics are old, either shoe could be on the other foot.)

If it was the fit guy, he might not necessarily have had a lot of weight in his BCD, which would put a different light on the initial speculation about the "weight hand-over."

 

[Dan G]

This is a pure guess since I don't want to pay to read the filing, but what would make sense is that Bottoms Up had a current insurance policy through DAN. However when DAN got pulled in on this case, they went through Bottoms Up's insurance application and found the alleged lie. So now they are asking the court to either make a legal determination that the insurance contact was invalid from the start or they are asking the court for a ruling that Bottoms Up must repay DAN for anything it has to pay out to cover claims arising while the policy was in effect.

I have a legal question that would require an answer with the understood caveat that we can never fully know how a court will rule. That being said, perhaps someone can weigh in on DAN's legal responsibility of due diligence when granting insurance to a shop or individual. I am sure there is at least one clause in the application for DAN insurance that states something to the effect that if anything in the application is false (knowingly false?) the contract is null and void. However, does DAN then have a legal responsibility, to a reasonable degree, to make sure there are no false claims? If so, whose responsibility would a court likely rule greater? DAN's to do their due diligence or the shops to not make false claims?

 

[jonhall]

However, does DAN then have a legal responsibility, to a reasonable degree, to make sure there are no false claims? If so, whose responsibility would a court likely rule greater? DAN's to do their due diligence or the shops to not make false claims?

With no legal knowledge other than what I make up, this would be my thought: Just like other documents and forms (such as applications for insurance, loans, substitute teacher, TSA precheck, passports, or Global Entry; Federal and State taxes, etc....), a person signs the form to attest that all information provided is accurate to one's knowledge. In some of these cases, due diligence may come in the form a background check or a check of one's credit score. Who know's what the IRS does? I would have to think that purposely misrepresenting yourself on paper is a no-no no matter what the other party does.

DAN spells it out fairly well in their application and seems to cover all of the bases:

"___ was required in the ___ Application to acknowledge, make, and confirm, and did acknowledge, make, and confirm, certain statements and representations in the Declaration Section including, among others, that “all statements and particulars contained in the Application and any attachments are true and correct,” that “no information whatsoever has been withheld that might increase the risk of the Underwriters or influence the acceptance of this Application,” that “failure to disclose any material facts, which would be likely to influence the acceptance and assessment of the Application, may result in the Underwriters refusing to provide
indemnity or cancelling the policy in every respect,” and that “I hereby acknowledge and declare that I have never been suspended, annulled or removed from any dive instructor association or agency and that coverage will only be effective as long as my professional membership is current or I am in training.”

Since all of this is in the written application, I don't think the court will care if there was due diligence by DAN to check on whether the op was truthful or not and that the court would side with the meaning of the written (and signed) document. The responsibility was for the dive op and person's involved to be truthful.

 

[Td9984]

Hrm now they are suing SDI too...

 

[Outbound]

Lots of people have been speculating on the weighting issue, but I'm left wondering how that would really matter. You could saddle me with a cinder block on top of my normal weighting and I still wouldn't drown. Why? Because I have a regulator in my mouth. This is a tragic accident, and I don't want to victim blame, but it seems to me that any diver on cert dive #4 should have already satisfactorily completed the necessary skills demonstrations to be able to handle an overweighting issue. The worst that should have resulted would perhaps be sinus or ear barotrauma from too rapid of a descent and freaking out at the speed and not keeping up with equalizing. But even if this woman sank like a proverbial stone to the bottom, she would presumably have a regulator in her mouth. If she didn't, she was taught and should have known how to recover it and/or to go to her octo. Then she would have or should have known how to get neutrally buoyant and then ascend in a controlled manner. Barring all of that, she could have ditched her weight or her entire rig and do a CESA.

If she wasn't able to do this, then she wasn't ready to be on dive #4.

 

[Biotech Diver]

Hrm now they are suing SDI too...

No different from the family of the woman who was backed over by the dive boat operator that suing the boat harbor that the dive boat operator used. Lawyers don’t go after the responsible party, they go after anyone with money that is tangentially related to the tragedy. SDI obviously has more money than the Montana dive shop.

 

[Biotech Diver]

Lots of people have been speculating on the weighting issue, but I'm left wondering how that would really matter. You could saddle me with a cinder block on top of my normal weighting and I still wouldn't drown. Why? Because I have a regulator in my mouth. This is a tragic accident, and I don't want to victim blame, but it seems to me that any diver on cert dive #4 should have already satisfactorily completed the necessary skills demonstrations to be able to handle an overweighting issue. The worst that should have resulted would perhaps be sinus or ear barotrauma from too rapid of a descent and freaking out at the speed and not keeping up with equalizing. But even if this woman sank like a proverbial stone to the bottom, she would presumably have a regulator in her mouth. If she didn't, she was taught and should have known how to recover it and/or to go to her octo. Then she would have or should have known how to get neutrally buoyant and then ascend in a controlled manner. Barring all of that, she could have ditched her weight or her entire rig and do a CESA.

If she wasn't able to do this, then she wasn't ready to be on dive #4.

Deleted - posted in wrong thread in error.

 

[Bob DBF]

But even if this woman sank like a proverbial stone to the bottom, she would presumably have a regulator in her mouth. If she didn't, she was taught and should have known how to recover it and/or to go to her octo. Then she would have or should have known how to get neutrally buoyant and then ascend in a controlled manner. Barring all of that, she could have ditched her weight or her entire rig and do a CESA.

Perhaps you should go back and re-read, or perhaps read, the facts of the incident, then you might want to modify your post.

 

[Bob DBF]

Lawyers don’t go after the responsible party, they go after anyone with money that is tangentially related to the tragedy.

In a civil suit, the liability is apportioned to the parties that contributed to the accident when the suit is settled. Until a determination in court is made on how the accident happened and who bears what responsibility, a lawyer has to include anyone that might be even tangentially responsible and bring them to the table.

Hypothetically speaking, say SDI was left out of the suit and it was determined that they taught instructors to let their assistant to grossly overweight a drysuit diver with non dichable weight and not have an inflater hose on the suit. At that point the responsible party would not be at the table and could not be held responsible because the civil suit had been adjudicated and the lawyer did not bring the party into the lawsuit. The suit cannot be filed again.

It's a ridiculous example, but that's why it is done. The lawyer does not know at the beginning what is going to be important in the long run. Although the suit is about money, someone isn't brought in just because they have money, otherwise Bill Gates would be named in every suit.

 

[Biotech Diver]

In a civil suit, the liability is apportioned to the parties that contributed to the accident when the suit is settled. Until a determination in court is made on how the accident happened and who bears what responsibility, a lawyer has to include anyone that might be even tangentially responsible and bring them to the table.

Hypothetically speaking, say SDI was left out of the suit and it was determined that they taught instructors to let their assistant to grossly overweight a drysuit diver with non dichable weight and not have an inflater hose on the suit. At that point the responsible party would not be at the table and could not be held responsible because the civil suit had been adjudicated and the lawyer did not bring the party into the lawsuit. The suit cannot be filed again.

It's a ridiculous example, but that's why it is done. The lawyer does not know at the beginning what is going to be important in the long run. Although the suit is about money, someone isn't brought in just because they have money, otherwise Bill Gates would be named in every suit.

Deleted - posted in wrong thread in error.