Worsening insurance crisis

[Subfiend]

Now if I did drugs, I would hope for the WRSTC to convene and discuss what changes (if any) could be made to mitigate fatalities. But as I don't do drugs, I will never hope for that.

I also don't do drugs.

 

[Wookie]

Now if I did drugs, I would hope for the WRSTC to convene and discuss what changes (if any) could be made to mitigate fatalities. But as I don't do drugs, I will never hope for that.

RSTC meetings are held in private and non-disclosures are signed and enforced. Not exactly a system for establishing safety standards to mitigate fatalities, or tightening standards.

 

[VikingDives]

Side note: I am fully aware that, by taking on the Mills case and by posting honest comments here, I am likely making myself unemployable to many in the dive industry. That fact and $4 will get you a cup of coffee at Starbucks. That’s how much it means to me. I just don’t f***ing care.

I want to say thank you for doing this. I've learned some things from your posts that I would have remained grossly ignorant of, but for your comments. There are a couple of my questions you've left unanswered, but suffice it to say that if we ever meet in person, be prepared to be plied with the drink of your choice as I pick your brain.

There are very few people in this industry that (a) have your experience, and (b) are willing to share it. I genuinely appreciate your willingness to get down in the trenches with those of us who aren't in your position.

 

[MrVegas]

It's interesting to have a thread where this discussion can be had more in the abstract -- usually it follows a specific incident and people wind up mad at each other. From the DAN report, it certainly doesn't look like diving has become more dangerous over the last 20 years -- and it's probably much safer than it used to be 40-50 years ago. I also tend not to believe the usual complaints about greedy lawyers or insurance companies. Mostly they are just reacting to the public perception and the market.

I do think diving accidents seem to generate a different reaction in the public and the news though. Maybe because fewer people dive than cycle, run, rock climb, hike, etc. Or maybe because when someone goes diving, they usually need another party to assist (dive boat, quarry operator, gear rental, etc.) so there is always some added level of attention on the possibility of someone else not somehow making the activity safe enough.

 

[Eric Sedletzky]

What makes you think that they don't know?

As much as the elites here bemoan the state of diver training, from the insurance company point of view, it is still a viable business to write those policies. How many accidents are there that involve students and become insurance payouts?

I think the game changer would be lawsuits arising after incidents to certified divers, diving outside of a class. If those suits named the certified diver's instructor, shop, and agency, then the number of annual lawsuits-- and payments-- would be much higher.

As you can probably tell, I am not a lawyer, dive instructor, or insurance salesperson. Maybe these lawsuits do happen, but they don't get discussed here.

Well, something is making them spike their rates, IDK?
Insurance companies will adjust their rates based on what might happen, not always what has already happened. They do both.
Insurance companies do not like to lose. They will hedge themselves against any perceived threat to their fortunes.
That’s why I say “if” they actually knew what goes on in some open water classes (not all) and the types of divers that are being turned out, I think they would spike rates a lot more just based on what “might” happen. I think they are quite in the dark and not fully aware of what a good and bad instructing is, at least not like somebody fully immersed in the industry (no pun intended).
I think there is a lot if “accident waiting to happen” stuff going on in todays dive training world. I’ve seen it. I think a lot has not happened due to luck, easy to use gear that covers for a lot of inadequate training and skill, and also because a lot of people drop out shorty after getting certified for various reasons. So while they add to the number count of certified divers they will not add to the dive accident statistic count because they quit diving, but insurance companies may not know they quit. This makes numbers look better than they could be, it could be worse, and like I said, “could” is a viable reason. It’s the accidents waiting to happen that insurance companies do not see.
Just like our fire insurance in my area. My house did not burn in 4 fire years that we were evacuated. It came within an 1/8th mile twice. Those that burned or were in a burn zone got slaughtered with increases. But even though my house did not burn, it theoretically could burn someday due to a wildfire so my premiums went up too.

 

[wetb4igetinthewater]

It's interesting to have a thread where this discussion can be had more in the abstract -- usually it follows a specific incident and people wind up mad at each other. From the DAN report, it certainly doesn't look like diving has become more dangerous over the last 20 years -- and it's probably much safer than it used to be 40-50 years ago. I also tend not to believe the usual complaints about greedy lawyers or insurance companies. Mostly they are just reacting to the public perception and the market.

I do think diving accidents seem to generate a different reaction in the public and the news though. Maybe because fewer people dive than cycle, run, rock climb, hike, etc. Or maybe because when someone goes diving, they usually need another party to assist (dive boat, quarry operator, gear rental, etc.) so there is always some added level of attention on the possibility of someone else not somehow making the activity safe enough.

I can't say whether diving was safer or more dangerous in the past. I can say that some incidents were entirely avoidable. Some incidents MAY not happened if different procedures were followed, like the two examples I gave. Dive lights in one case, breaking up the 7 students into two groups may have averted the tragedy.

Or they may not have made any difference.

I try after my HF training to look at the system for weaknesses as no instructor ever intends for a student to die.

 

[MrVegas]

Two questions:

1. What do other adventure-type activities do for insurance? (Bungee-jumping, sky-diving, para-gliding, etc.) I have a (vague) memory of my one skydiving experience of the operator telling me they didn't have insurance. I filled out something like a 14-page liability waiver (including waiving claims of inappropriate touching due to assistance in getting the harness on).
2. How are waivers of ordinary negligence perceived by insurance companies and judges? Obviously, the waivers won't stop anyone from getting sued and incurring defense costs, but how likely is a judge to toss a case on summary judgment based on a liability waiver alone?

 

[Wookie]

You can run a drop zone without insurance, just like you can run a dive boat without insurance, and I assume a bungee base.

But you can't issue a A, B, C, or D license without being a USPA member, not can you issue a SCUBA certification card without insurance.

I've known lots of uninsured, unaffiliated dive operators in Key West, and as long as you very carefully protect your assets, the only person who can be hurt from your neglignce is the person hurt. Make it not worth it for a lawyer to come after you, and it's hard for a person to hire a lawyer. If all they get is a crappy boat, it's not worth it.

As far as waivers go, it was always explained to me that in any state, the value of the waiver was that it spoke to the victim's mentality before engaging in the activity. Show a judge that the participant knew the sport was risky, and that they chose to participate anyway, thaat places the onus back on the plaintiff to prove negligence.

 

[Subfiend]

Enforcement of liability waivers is hit or miss. It really depends on the state law, the facts of the case, and the mood of the particular judge on any particular day.

For example, in the Mills case, the liability waiver would never be enforced because (1) the death occurred in a national park, where liability waivers are not enforced per federal law; (2) it did not include language required by Montana law to make it otherwise enforceable; (3) Linnea never signed the waiver or returned the document before she died. (Although a signed and completed waiver was attached to certain documents filed in court, we had the statement of an eye-witness who told us the incomplete and unsigned form was pulled from a bag of Linnea's personal effects which had been retained by one of the defendants, and Linnea's parents did not recognize some of the handwriting, including the signature.)

In many jurisdictions, the waiver may be enforced, but only on summary judgment, where issues of those like I described in the Mills case are dispensed with by testimony and other evidence. This comes 1-2 years into the case, after discovery has been taken, etc., and this investment into defending the case can be expensive.

Some of the liability waivers I see are an absolute joke. I sometimes see waivers that make me believe the author did not want them to be enforced so they could earn more money defending the case for a longer period of time.

Knowing this, my firm writes liability waivers so they can (1) be enforced as early as possible; and (2) if not, be used at trial to support an assumption of risk defense. If the waiver is written properly (as those of you who have seen my firm's waivers will know), they can be very, very effective when shown to a jury at trial as evidence of what the diver knew and what risks he or she assumed. As a rule, we don't prepare cases for settlement, we prepare cases for trial. When we help a client with their risk management strategy, we use all the tools we know of to help them mitigate, reduce or accept risk.

 

[Subfiend]

Two questions:

1. What do other adventure-type activities do for insurance? (Bungee-jumping, sky-diving, para-gliding, etc.) I have a (vague) memory of my one skydiving experience of the operator telling me they didn't have insurance. I filled out something like a 14-page liability waiver (including waiving claims of inappropriate touching due to assistance in getting the harness on).

Here is an example of lack of insurance leading to the cancellation of another adventure activity: Whitewater paddling contests are being cancelled due to insurance concerns.

The Titanic dives I have been involved in over the past few years have not had insurance. This is explained to the participants in writing and in person, and the verbal explanation and participants' acceptance are filmed.