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October 2014    Download the Entire Issue (PDF) Available to the Public Vol. 40, No. 10   RSS Feed for Undercurrent Issues
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PADIís Wicked Ways

throwing a divemaster under the bus, and colluding with plaintiffs

from the October, 2014 issue of Undercurrent   Subscribe Now

PADI's money-making Discover Scuba Diving course (DSD), once simply called a resort course, is on trial, and it looks like PADI will do whatever it can to protect it -- even if it means throwing a PADI instructor under the bus, and operating secretly and illegally behind the court judge's back.

PADI instructor Corbett Douglas, who worked for Blue Water Scuba, based in Logan, UT, had four divers -- two Boy Scouts and their scoutmaster -- under his charge in a DSD course in Utah's Bear Lake in July 2011. During the introductory dive, one Boy Scout had anxiety problems, as apparently did the scoutmaster, and Douglas was faced with a choice: guide the two anxious victims back to the surface or let them go on their own. Because the other two scouts seemed stable on the bottom, he guided the two troubled divers to the surface. By the time he returned, one of the boys he left behind, David Tuvell, had drowned.

DSD programs have an accident rate more than twice that of PADI's standard openwater certification courses. As Bret Gilliam wrote in Undercurrent back in March 2012, a big problem lies with the standard: Only one instructor may lead up to four divers. Should a diver get into trouble, the instructor must either let him head to the surface alone or go with him and leave the other divers unaccompanied. Gilliam argued that two instructors were essential for safety, which would also permit the groups to be much larger, with as many as a dozen divers.

"If there is an issue over how Tuvell died, it is the standards of the Discover Scuba Diving program."

Less than two weeks after the death of David Tuvell, PADI publicly expelled Douglas (an Iraq veteran and schoolteacher) for life as a PADI instructor, but refused to explain either publically or to him personally how he had violated PADI standards. Also, no witness statements had been conducted, and autopsy reports and police reports had not yet been made available. PADI then made an issue out of Douglas at a large DEMA gathering -- it had determined that "his continued membership was not in the best interests of PADI." Corbett, however, was following PADI procedures: He had four students and he served the troubled divers. And that's what may really be on trial -- whether the DSD program is, in fact, a faulty, unsafe program.

The case went to court, naming Douglas, Blue Water Scuba, PADI and the Boy Scouts as defendants. PADI has argued that the Blue Water defendants are solely responsible for the death, not the standards of its DSD program.

David Concannon, the attorney representing Douglas and Blue Water Scuba, told Undercurrent that he repeated the fatal dive, and spoke to witnesses and medical examiners, but can't find that Douglas violated any standards. "If there is an issue over how Tuvell died, it is the standards of the DSD program . . . It does not tell you how to make a safe ascent. It does not tell you how to stay on the surface. It does not tell you to drop your weights and maintain your buoyancy. None of this information is given to the participants. The instructors are not allowed to deviate from that."

However, the judge later learned that PADI had colluded with the plaintiff's attorney and arrived at a secret settlement with the plaintiffs, David Tuvell's parents. In that confidential agreement was a clause in which PADI denied responsibility and agreed with the Tuvells that its members were responsible for the boy's death. Another provision in the settlement allowed PADI to stay in the case for as long as PADI wanted so it could "clear its name" and defend against any allegations that the DSD program was defective.

PADI's motives? One theory is that the agency made the confidential settlement to get itself out of the case as a defendant so that the court couldn't scrutinize the inefficiencies in the DSD curriculum.

The other motive is to get rid of the competition for insuring PADI dive instructors, says Concannon. Here's how it's structured: Each major dive agency has its own insurance program and offers liability insurance to its instructors as part of membership. The agency, in turn, presents its instructors to an insurance broker (PADI's preferred broker is Vicencia & Buckley), who then finds underwriters to fund the insurance program. The underwriters charge a premium, which is passed on to the instructor, and the broker takes a commission from the premium and shares it with the dive agency.

Two years ago, PADI was bought by a private equity firm, which soon realized it had overpaid for a dive training agency that had rapidly declining enrollment numbers -- the lower the number of instructors purchasing insurance through PADI, the fewer commissions, and thus, revenues collected. But PADI couldn't raise membership rates or hike insurance premiums for its dive instructors because it was competing with other insurance underwriters, primarily Willis Recreational Diving Insurance, on the basis of price. Although Blue Water Scuba is a PADI dive shop, it chose Willis as its insurer, and listed Corbett Douglas as a person to insure under its plan. "If he was insured by Vicencia & Buckley, Douglas would never have been expelled, PADI would have vigorously defended him," says Concannon. "But here was a case to make Willis spend a lot in defense costs for a big verdict. PADI couldn't resist competing with Willis on this basis. If Willis quits brokering insurance to the diving industry, Vicencia & Buckley can raise prices because it no longer has to compete."

Thus, PADI entered an agreement with the plaintiffs, David Tuvell's parents, that made them amend their original complaint to settle some claims against PADI and keep the agency a party to the case, reviewing documents and advising the Tuvells how to hold Douglas and Blue Water Scuba liable. But PADI is not doing so as atonement to the deceased's grieving parents, says Concannon. "There's no legitimate reason for PADI to do that other than to make Willis spend their profits and lose more money just to defend the case and find the instructor is not liable. By getting rid of the competition, PADI can finally raise its rates."

After finding out about the secret agreement, the judge threw out the plaintiffs' amended complaint earlier this year, saying that "PADI and their Counsel unnecessarily multiplied the proceedings . . . [and] set off a series of answers, cross-claims and third-party claims that were unnecessary." Despite the collusion, the judge seemed to let PADI off earlier, making it pay the Blue Water defendants $2,000 to compensate them for legal fees paid to defend themselves against that amended claim. But PADI still intends to stay as a party in the case -- Concannon says the plaintiffs filed a motion to do so, and a hearing on that will be held October 14.

Looks like PADI got its wish even before the case goes to trial. Earlier this summer, Willis announced it was dropping out of the dive insurance industry, leaving just one other -- smaller -- underwriter as PADI's only competition. "The ultimate result of this trial will not be about a family winning a case against [an] instructor," says Concannon. "It's that now an instructor suddenly will have to pay a lot more for liability insurance because the only place to get it is through PADI sponsored insurance."

We called and e-mailed PADI's vice-president of marketing and communications, Kristin Valette, to get the dive agency's reply and point of view, but she didn't respond.

- - Vanessa Richardson

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