Power on the powder
The last few years have seen the manner in which skiing accident claims are dealt with vary substantially due to the effects of changes in international law, and according to the jurisdiction in which such claims are brought. Daniel Scognamiglio offers his take on skiing accidents, addressing the insurer’s issues from a legal perspective.
There are essentially two types of claim; fault and non-fault. Both can result in significant injuries and expense to insurers. Where someone is to blame (a fault claim), a recovery may be possible from a third party, which, in the case of winter sports claims, could be against another skier, a tour operator or sometimes a piste authority. That claim for recovery would need to be brought either as a subrogated claim in the name of the insured or in the insurer’s name, depending on the applicable law and jurisdiction. Where there is a non-fault claim, the insurer will need to cover the cost or medical expenses in the normal way. This article deals with fault claims and then provides some assistance regarding claims handling and tips for policyholders.
With a fault accident, an insurer can find themselves on either side of a claim – either defending or bringing a claim for the recovery of an outlay. The insurer’s interests on either side of the case may be different, but the law will be the same and will depend on the jurisdiction governing the claim. It is important to make sure the claim is brought in the most favourable jurisdiction, as on occasion there may be a choice of jurisdiction. There are some general points to consider in the more popular jurisdictions – for example, a skiing accident in France involving an Italian and English skier could potentially be brought in any of the three jurisdictions. What follows is a consideration of the benefits and pitfalls in bringing the claim in these jurisdictions.
If defending a claim, current advice is to avoid a claim being brought in England due to the costs regime that means a losing party needs to pay just about all of their opponent’s legal costs, which can include a mark up of up to 100 per cent, plus an expensive insurance premium, VAT and disbursements. Often, this will be several times the value of a claim. This will change in April 2013 with the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
There are several benefits to bringing a claim in Italy, which include the enforcement of alternative dispute resolution with the European Mediation Directive (2008/52/EC) having been adopted. This has reasonably predictable costs and damages and the legal system is much improved in recognition of serious flaws in the past, which include significant delays caused by endless appeals. In one case, for example, the litigation process has taken in excess of 12 years due to the number of appeals.
Litigation in France can vary from area to area but, as in Italy, there have been significant reforms in an attempt to improve the litigation process. Again, time will tell whether the reforms are adequate to prevent the significant delays caused by continuous appeals. Public spending cuts in France have impacted on the time it takes for the courts to process a case. Furthermore, an opportunity to sue or be sued in the US should not be taken lightly, as the law varies from state to state. As a plaintiff, the opportunity to have a contingent fee that deducts about a third of damages to pay for the legal costs may seem appealing at the outset of a claim, but that is a substantial chunk of any recovery. In addition, other costs such as disbursements and travel costs are rarely awarded. The decision about the liability and value of a claim is usually provided by a jury, which leads to uncertainty, but there are numerous opportunities to reach a negotiated settlement. Many states, though, can enforce some sort of mediation between the parties and can also prevent an insurer from recovering their outlay from a third party. The level of insurance coverage can be very low in the US, which can quickly prevent any substantial recovery despite the value of a claim.
If one is defending a claim and there is likely to be a significant difference to the value of the claim depending on the jurisdiction, one may consider simply starting proceedings in the more favourable jurisdiction. As long as those proceedings are not purely spurious, acting quickly can save the insurer a great deal of money and can take the initiative from another party to the potential litigation. For example, a claim in England for €1 million could be worth only €50,000 if brought in Spain.
It is worth gathering evidence as soon as possible after a significant claim. Such evidence will include the piste report and very often a site inspection to include a survey of the accident site, together with measurements. If one is likely to be faced with a large loss, it is clearly better to be prepared for that claim, rather than doing no more than responding to a claim. There is a cautionary tale in acquiring evidence early on, though. One significant claim had a very biased report presented to the court in England by the defendant, who correctly visited the accident scene in France soon after the accident and some time before the claimant was able to get their evidence in order. The judge disliked the way the defendant’s evidence was so unbalanced and biased, and presented in such a way that he considered there was an attempt to distort his understanding of the layout of the slope.
Other jurisdictions treat evidence in a different way. While a judge in England will never leave their bench in a civil claim for damages, other jurisdictions may have a judge who is keen to go to the slope and see the location of the accident. Alternatively, a single expert may be appointed by the court to meet with the parties at the scene of the accident and to report back to the court as to what they assess happened. Such an expert’s opinion will be very persuasive to the court in this type of jurisdiction.
The Federation Internationale de Ski (FIS) provides the rules of the slopes for Europe, which can be found on the organisation’s website. The US has a similar code that has actually been enshrined in law in some states, such as Colorado. The codes are reasonably straightforward and similar to the Highway Code used on UK roads or the Driver’s Handbook in the US. The FIS rules, though, should usually be the starting point for anyone considering liability.
Where someone is injured in an avalanche, the ski resort or authorities can be liable. Normally the risk of avalanche is inherent in skiing, but if liability can be shown, costs paid out by an insurer can be recovered – depending on where the accident happened and the available evidence. So, as well as considering a claim against an ‘at-fault’ skier, a claim can be brought against other parties. In Colorado, for example, the Court of Appeal has ruled that a ski resort is liable where it has failed to protect its skiers from an avalanche. The French authorities have decided on only a few occasions that a ski resort is liable, however. But, in a recent case, the resort of Font-Romeu was ordered to pay almost €1 million to a young woman who suffered multiple traumas when she hit a patch of ice on a green run, skidded off piste and collided with some rocks. Due to the way French law is decided, this precedent is not as helpful as one might hope and it is rare that one should proceed with a claim against the authorities in France.
Just because a policyholder buys a snow sports policy does not then mean any snow accident is covered by that policy. Skiing well within one’s ability on a nursery slope is very far removed from extreme off-piste skiing on a slope only accessible by helicopter. The exclusion clauses regarding alcohol, drugs or taking needless risk are relevant and still apply. An insurer should not necessarily pay out for losses following a young snowboarder losing control going down a piste or hitting someone, especially where they were out of control and not boarding within their ability, or after a heavy night.
There is substantial case law that deals with the liability of ski instructors too. Arguably, the leading case in England is Anderson v Lyotier , which involves a skier who hit a tree whilst in the care of a ski instructor. It was possible to bring the claim in England against the tour operator as the tuition formed part of the ski package. The court decided that the ski instructor was liable where there was a foreseeable risk that the pupil would run into a tree if he lost control of his skis. The pupil was also partly responsible as there was an onus on him to tell the instructor if he believed that it was unreasonable for him to attempt to ski there.
Needless to say, being properly insured is a basic starting point for any winter sports traveller. While the European Health Insurance Card may offer limited protection in some parts of Europe, it is no replacement for comprehensive ski travel insurance, as this industry knows only too well.
Below is a guide that insurers could offer skiers to help avoid accidents on the slopes in the first place and to ensure they know what to do should an accident happen:
- be familiar with the rules of the piste such as the FIS rules. Skiers and snowboarders should have regard for these rules that form the ‘highway code’ of the ski slopes in Europe. Similar rules are in place in Canada and the US;
- one of the most important rules set by the FIS is that the skier lower down the slope has priority. If you happen to be knocked to the ground by another skier who has approached from further up the slope, then there is a good chance they have ignored or negligently breached this rule;
- to avoid a collision, be sure to carefully check further up the slope when setting off or joining a slope;
- look after your ski equipment and make sure it is suitable for your requirements. Every year there are a number of skiing accidents that occur as the result of faulty or poorly fitted equipment. Ensure ski equipment suppliers fit any equipment properly before you set off with your skis and be as accurate as you can with the answers. Experienced skiers will know that ski fittings are determined by age, ability, height and weight. Skiers should make a note of their height and weight in metric and imperial before heading abroad;
- check the position on the law for safety helmets in the destination country. This is still an area of great debate. Be aware that in some resorts it is compulsory to wear a helmet for certain age groups. Skiers may want to consider wearing a safety helmet and other protective ski equipment, such as a spine protector, particularly if feeling adventurous and heading off-piste. Some insurers wisely now require ski helmets to be worn; and
- ski within ability. To ski out of one's ability can expose oneself to unnecessary risk and may not be covered by an insurance policy.
In the event that an insured skier is involved in an accident, here are some key tips that insurers can give their insured after an accident has occurred:
- report the accident to the piste authorities, and ask for a copy of the report;
- take full details of anyone who may be responsible, including details of their insurer and of any witnesses;
- obtain photos of the accident location and get someone in the group to return and make a sketch plan pinpointing where the relevant parties were coming from and going to at the point of impact. For a significant claim, it may be worthwhile arranging a site inspection. The first 24 hours following an accident are the golden hours for gathering evidence;
- if the accident is caused by faulty equipment, then it is important to have full details of who provided the equipment, what steps they went through when fitting the skis and bindings, and what exactly the problem was with the equipment that caused the injury. Take photos of the faulty equipment or make sure the equipment is preserved for a representative to comment on or for the piste authorities to inspect;
- if the insured dares to venture off piste, they may need a guide and to have equipment such as a transceiver, probe and shovel. While this may seem extreme, every year stories emerge where such equipment has helped save lives. A policyholder may find that such equipment is a requirement for insurance that covers off-piste skiing. Furthermore, an insured skier should not expose themselves to unnecessary risk.
Observing these tips will help skiers to avoid an accident in the first place, and will also ensure you as their insurer have the information and evidence needed should you bring or defend a claim as a result of a skiing accident.