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Letter by Brian


An Open Letter of Personal Perspective to the Diving Industry

by
Brian Carney
President of SDI/TDI/ERDI


Brian CarneyI have spent the better part of the last 25 years of my life working in the diving industry. It has been my consuming passion including everything from working at an aquarium as a diver, to teaching a University diving program, to being part of the Executive management team of a manufacturer, and now my current position as President and CEO of SDI/TDI/ERDI. Over this period of time I have thoroughly enjoyed working with people from all over the world, and training others to experience breathing underwater for the first time. This is the reason I decided to make a commitment to a career in this industry.

Through my experiences, and as I have assumed more and more responsibility, I have observed a lot of evolution, innovation, and industry trends. Due to these responsibilities and my position within an international training agency, I feel it is my duty to bring to light some of the things that have recently occurred in this industry. They remain closeted and buried in confidentiality protocols that are detrimental to our collective business models and to the overall growth of diving. Those of you who have worked with me over the years know I prefer to talk about positive things. I believe that if I cast aspersions at my competitors, I set the wrong example of how people in this industry should work. Those who know me will tell you, I expect this of all the people I work with… professional respect and a duty to advance the industry as a whole. I personally feel there is no place for disparagement in this industry.

But eventually a point is reached where I feel compelled to speak out. Because of my personal beliefs, I have recently struggled with the issue of whether or not I should offer personal comment on the recent tactic another training agency has chosen to take towards its instructor members. I believe their actions are damaging to the entire diving industry. After much thought and reflection, I decided that, regardless of which agency I belong to, I have a greater responsibility to the industry as a whole to focus a spotlight on this tactic. Because, if this is the direction we are going, we are in grave trouble.

There is currently a lawsuit underway in federal court in Utah (Tuvell v. Boy Scouts of America, et al., Case 1:12-cv-00128-DB), where a boy lost his life in a PADI Discover Scuba Diving program. Normally, PADI supports its members and vigorously defends litigation. But not this time…

PADI did something strange after the Utah incident: less than two weeks after the accident, without conducting any investigation, without interviewing witnesses or waiting for the authorities to complete their investigation, PADI expelled the instructor, a veteran of the Iraq war, from PADI membership. The agency gave no reason other than that the instructor’s continued membership “was no longer in the best interests of PADI”. When the instructor asked PADI to explain its reasoning or identify which PADI standards he had violated, PADI never even gave him the courtesy of a response.

When the boy’s parents filed litigation, PADI chose to settle the plaintiffs’ case against their organization secretly and attempted to cloak the settlement in confidential agreements. PADI then illegally colluded with the plaintiffs’ attorney to file false pleadings so PADI could remain a party to the case and secretly work against its own member. This was after already settling themselves out of the litigation. When this conduct came to light, PADI was sanctioned by a Federal Judge for its misbehavior. You can access and review this “Document 182” in the case file, which is available to the public at www.pacer.gov.

PADI also took other harmful action in the case. They paid a considerable sum of money to settle the case (the exact amount is noted in the transcript of the April 23, 2014 court hearing where PADI was sanctioned and is also available in the case file on www.pacer.gov.) But incredibly, the settlement agreement (that PADI prepared) contains a clause where the parties agreed that PADI’s member was 100% at fault. Then, after the settlement, PADI turned over its instructor member’s incident reports to the plaintiffs without a request or ever informing the member that it was doing so.

These are the reports that all members are required to file as a condition of their PADI Membership Agreement. These are the same risk management documents that say on them: “THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE FOR USE IN ANTICIPATED LITIGATION”. In other words, the incident reports are privileged. They are protected from disclosure by both the attorney/client privilege (which belongs to the member instructor) and the attorney work product doctrine (which belongs to both the member and PADI). Then, when the member’s attorney insisted that PADI recall the documents and protect them on the basis of privilege, PADI refused to do so. Remember, PADI had entered into a secret settlement with the plaintiffs that included a collusion clause.

It’s sort of the ultimate example of throwing an instructor under the bus to selfishly protect their own corporate interests and sacrificing the member to take the fall when that instructor had actually followed every applicable PADI standard!

Now, the details of what actually happened during the dive will come out upon completion of the case, but from what is in the public domain now, the instructor followed all required training standards. So, you have to wonder why PADI would so quickly expel one of their members without an investigation and then secretly collude with a plaintiffs’ lawyer to hold the members liable. Well, the reason can only be hypothesized, as PADI has yet to respond to multiple requests in both Federal Court and the court of public opinion. But the answer is pretty clear and obvious to any observer with access to the “behind the scenes” facts.

My reason for writing this open letter to the industry is to shed some light on why PADI engaged in such bizarre behavior in the Utah case. The dive center and instructor being sued in the Utah case carried insurance with Willis Insurance, which is not a member of the PADI endorsed program. So PADI, knowing this was an accident that could generate bad publicity and call into question the safety of its Discover Scuba Diving program, wanted to get out of the case as quickly and as quietly as possible. Because it would not hurt their own endorsed insurance program, PADI chose to simply expel the member and point the finger at him because it wouldn’t cost them anything. This theory is further supported by the fact that PADI’s underwriters filed a related federal lawsuit asking the court to order Willis’ underwriters to pay PADI’s legal fees in the Tuvell case.

PADI’s underwriters continued to be involved in this case for another year in collusion with the plaintiffs’ after PADI settled their own liability in the Tuvell case. They also never disclosed to the Federal Judge that PADI had settled the underlying case. In other words, PADI was trying to have Willis pay its lawyers’ fees for colluding with a plaintiffs’ attorney to hold Willis’s insured parties liable.

You are most likely asking yourself, why I am drafting this notice and defending a PADI instructor who had a fatality during one of his courses. It is because I believe that one of the biggest dive training agencies in the world has an obligation to lead in a positive way so the whole industry can benefit. In years past, this type of behavior — lying in court and colluding with plaintiffs — was frowned upon by everyone. Not to mention being illegal. As a matter of fact, PADI has famously chastised and ridiculed attorneys and expert witnesses, who used to work on their own behalf for defense litigation, but now do other work with plaintiffs as well. Are you beginning to see the absurd context of all this? By this reasoning, it’s perfectly fine for PADI themselves to collude with plaintiffs to “sand bag” their own instructor member and conspire against his defense… while simultaneously condemning all others for doing plaintiffs work of any kind.

To see PADI take this step should be of great concern… for not just every dive instructor in the industry, but also every dive store owner, manufacturer, and media person, because now you have to worry whether you can trust PADI at all. You have to ask yourself, “Will PADI do the same to me if it serves their interests? Am I the next victim going under the bus?”

I have never worked against any instructor… regardless of the agency they belong to and the fact that they might be competitors. Rather I have chosen to advocate for them when they are in a time of need. From my perspective as a training agency president and active diving industry businessman, PADI’s action was irresponsible, secretly self-serving, and reeks of a big corporation attempting to sacrifice their own member who had acted completely within their standards of conduct. Such actions are beneath contempt and not in the best interests of the diving industry as a whole.

I conclude this letter by saying, I recommend and urge every dive professional in the industry to ask the organizations they are working with to put in writing that if you follow their standards, you will be supported by the organization you teach with. SDI/TDI/ERDI will be happy to do this regardless of the insurance carrier you use and I challenge all the training agencies to do the same. How can we work as instructors in the industry for organizations if we can’t trust them to provide vigorous defense when accidents happen and standards are followed? Are the standards there only to protect and enable the agency in blaming the instructor no matter what happens?

If the above criteria as cited is true (and it is accurate and verifiable), then the diving industry has fallen to a shameful level and further contributes to undermining our collective interests and the overall business model for the sport of diving.

I regret having to write this letter… deeply so. And I know some will chastise and ridicule me for bringing this to light, but it would be irresponsible of me not to make this a discussion we all need to have. How long will it be before we destroy this industry from within? I love diving and all the segments that the industry is made of. It is too bad some of the people in this industry do not share the same passion that I do in protecting it. I would welcome an open discussion with anyone including heads of training organizations, manufacturers, and other industry professionals.

It is time for everyone in this industry to act responsibly and work together. And if a manufacturer, training agency or other dive professional chooses not to… spend your money elsewhere. Because sometimes at the end of the day, the only way that change will occur is how you spend your money. You literally can take that to the bank.

It’s all about ethics in the end. You decide what path you think should be taken. For me, it’s clear and based on common sense. And it’s the right thing to do.

Sincerely,
Brian Carney – Brian.Carney@tdisdi.com
President
SDITDIERDI

For more information on the ongoing litigation and to verify the above references, go to www.pacer.gov and follow Tuvell v. Boy Scouts of America, et al., Case 1:12-cv-00128-DB, in the United States District Court for the Northern District of Utah.

40 replies
  1. Tony
    Tony says:

    As a PADI inst I have been using Willis Ins for many years. Just received notice that they are getting out of the business after my coverage ends this summer. Now there are fewer insurance carriers for all of us. Less competition usually means higher prices. But probably more business for Vicencia & Buckley!

    Reply
    • Tom
      Tom says:

      You can read the court documents, I did and as far as I can tell its all accurate. I think it goes right to the point that PADI not only abandoned one of their own but then assisted the plaintiffs against him.

      Reply
  2. Summer
    Summer says:

    Reading this letter it does sound very one-sided, which I guess it should be as it is a “Personal Perspective” but I don’t think the full picture is represented here. I won’t speculate as I don’t know all the facts. However it’s important to remember that someone can still be negligent, even reckless, whilst still following standards so I don’t see the point of Brian’s recommendation.

    Reply
  3. Britt Clark IT IANTD
    Britt Clark IT IANTD says:

    I agree that an agency should support the action of an instructor, especially when the agency standards might be in question. I also believe that the agency should never put an instructor/instructor trainer in a position that compromises the instructor or IT’s standards. Going behind the instructors back to make sure they didnt have any legal problems and leaving the instructor hanging out to dry was not a good idea, if that is what happened. A different incident that occurred where an agency requested that an IT sign off on a student as an instructor when the student didnt complete the IDC/ITC comes to mind. An agency that would allow someone to be an instructor and personally advocate the forgery of training records to make sure that happens is a recipe for disaster by having an instructor that is not trained to the same standards. The IT received a QA for not sending in paperwork that did not exist after leaving the agency due to the actions and comments made by the CEO of that agency. An agency is only as strong as its staff when it comes to ethics. I guess it comes down to the lesser of two evils when dealing with training agencies. Which is more important to the agency, the dollar or the member?

    Reply
  4. Robin Millar
    Robin Millar says:

    Interesting scenario. Obviously being from a different jurisdiction (Scotland) I can’t comment on procedure inn Utah, but here the settlement agreement wouldn’t be binding on the Defender as regards liability. If he was following PADIs protocols for the DSD then his insurer would be entitled to haul PADI back in to the case as a third party owing him a right of relief or indemnity.

    That of course isn’t to say that the instructor wasn’t at fault in some way. These are always difficult cases and unfortunately the corporate legal guys get very protective (I’d be interested to know if PADI were using external rather than in house counsel or indeed possibly relying on the insurers legal advisers – in the latter case they may not have had any real room to manoeuvre. It doesn’t make the situation any less palatable, frankly it sounds appalling, but that is the way the insurance industry works).

    If in doubt, make sure your own backside is covered regardless of who you expect to be looking out for you.

    Reply
  5. Tom
    Tom says:

    Thanks for posting this. I am one of several instructors of my acquaintance who have had fears and concerns about this type of situation for some time. We pay the insurance premiums but always wonder if we will be backed or not.

    Reply
  6. Steve Cushman
    Steve Cushman says:

    Brian,

    You have taken a step in the right direction. As a former PADI instructor and now a PSAI Instructor Trainer and cave site manager, I too have increased my responsibilities within the industry. It is people with the higher responsibility who must stand up to protect the industry. My hats off to you Brian. You will earn more respect than enemies over this. Please keep the discussion going. You have my full support!

    Reply
  7. Phil Hutchens
    Phil Hutchens says:

    I concur with your letter and opinion completely. In this litigation crazy world that we live in, we must have a certification agency that will stand behind us. Unfortunately, today many people want to take the shortest, quickest route to SCUBA certification. If an organization is going to offer such a program, or SCUBA Discovery type program, they are morally, (and should be legally) obligated to back up that instructor if something goes wrong. I commend you and support you for your stand. Phil Hutchens IDEA IT #3276

    Reply
  8. Alfie McCaffrey
    Alfie McCaffrey says:

    Well said Sir. Based upon what you have written it bodes matters of grave concern to all involved in the provision of diver training, regardless of agency.Once a precedence has been set difficult to reverse from it. With 45 years experience as a commercial, military, and instructor Padi and CMAS. One thing I learned is to never ever trust money driven organisations.This particular case seems to reflect corporate/financial/marketing survival at the expense of one person .Then again being cynical could it be a case of diverting all insurance into one preferred company, then disputing every case.

    Reply
  9. Russell Spencer
    Russell Spencer says:

    Hi Brian
    Thank you for revealing this, I note that a few are likening this case to one they were involved in. One should take heed that PADI has also expelled instructors/dive shops with just reason, lets not let those that have lost the lives of others through their negligence use this as a means to justify their actions. Each case has its merits/demerits

    Reply
  10. Dave Bean - SSI DCSI
    Dave Bean - SSI DCSI says:

    Well done Brian. This type of thing needs to be exposed so that other diving professionals can see what is happening. It is appalling to say the least. There are obviously many things that could have happened during the training that we are not aware of, but at the end of the day, you don’t just hand over confidential information, arrange a secret settlement and throw a member under the bus, who has literally Put All Dollars In to his profession. I am sure that EVERY instructors worst fear is having a student die whilst being trained… and even afterwards once qualified. I know that not all instructors are as passionate about the sport as we are, but I would like to believe that no instructor willingly sets out to kill a student… and therefore the agency should stand by him and their standards of training. I know that if something like this happened to me… and I had followed procedure correctly, my agency would definitely stand by me. How do I know this you ask? Well because of a simple phone call I received a few weeks ago. We operate a Charter Catamaran in the British Virgin Islands that is a registered dive center and after Hurricane Gonzalo went through, out of the blue, I received a call from someone at SSI that I have never met, to ask if we were OK. I was stunned… but it showed that someone at SSI head office was paying attention and that we actually meant something. Thanks once again for your letter.

    Reply
  11. JS
    JS says:

    In a world driven by greed, corporate eat their young, when it increases profit margins. One thing that does not come through clear in this letter is the reasoning behind the expulsion of the instructor. If it was an arbitrary decision, then let’s burn PADI at the stakes by all means. However, before we judge them, let’s hear their side of the story as to why they expelled the instructor. More facts are needed here before we can come to conclusions.

    Reply
  12. AP
    AP says:

    Good job Brian. Lately I’ve been inclined to leave PADI because of nonsense like this… they don’t care enough about their instructors. NO circumstance warrants colluding with the plaintiff.

    Reply
  13. Rendra Hertiadhi - Banyu Biru Explorers
    Rendra Hertiadhi - Banyu Biru Explorers says:

    thank you for sharing your view Brian, well said. The issue has always worried me and now I know that it happened. There’s not much information about incident litigation here in Indonesia and how PADI as organization defend its members. All we know is that we have to pay for professional liability insurance every time we renew our membership, but when the unexpected happens will PADI stand for us? If at Utah they can do the thing they do, what will happen here at Indonesian court or other developing countries’ which notably are easier to collude with?

    Reply
  14. shane Sunassee
    shane Sunassee says:

    I’m a padi Instr and have been teaching for couples of years. I begin to dives this make more than 10 years always following padi standards and teaching also. I can’t say padi standards are not good or bad, they have a nice approach to make people starting to dives and enjoy the dives in a safe way. The only thong i realised is how much bad habits ive cultivated through all these years of diving which could have been into a bad result after doing my full tdi courses to adv trimix and ccr deco. There were lota of things wuth i was unaware and feel to be a padi instr I should have kwown these and learn to dive in a safest way.like anyone upgrading to adv levels should have a notion of planning dives, gas management etc and be more frank in the risk.

    Reply
  15. Mike van Splunteren
    Mike van Splunteren says:

    I couldn’t agree more, Personally I have had it with that passive attitude from many instructors and dive professionals. There is nothing wrong with confronting agencies directly and publically and saying what needs to be said. In the end it is in the instructors and his students best interest.Agencies are there for the instructors and and not the other way around.The question is…what would Sdi have done ?

    Reply
  16. Robert Tonnon
    Robert Tonnon says:

    To whom it may, Those practices are all used in the modern world working environments, more so in Insurance related cases.

    Reply
  17. Sheldon Hey
    Sheldon Hey says:

    Ha! Yeah PADI really are a bunch of self-serving immoral capitalist bullies.

    I had the similar experience of this side of PADI myself. I was expelled from PADI (and my dive centre too, even though the centre had nothing to do with it) .

    What was my crime? Writing an open letter, pointing out what I feel are weaknesses in there system. I wrote the letter cos they wouldn’t listen to my points beforehand. Finally, after 10 years of them knowing of the letter, they tried to bully me to take the letter down, threatening legal action, but finally deciding to expel me and my dive centre … even though I had resigned 6 years previously (out of despair with their system)! They obviously wanted to try to make a public display of this punishment.

    Can you believe it!?! So watch out Barry, PADI will probably try and expel you too! 🙂

    Reply
  18. Jeff OHalloran
    Jeff OHalloran says:

    Having dealt with the PADI QA department before, I learned that they don’t follow their own ethical standards. They are unwilling to follow up theft as a servant when one of their own course directors sends your clients to largest PADI store in town. This is a natural progression for them.

    Reply
  19. Bob Peck
    Bob Peck says:

    Brian,
    Thanks for the insight and sharing this important information. My heart goes out to this instructor who believed in the PADI organization standing by him. Hope others will take this as insight and be aware of the risk possibilities associated with PADI at this time. I’ve been activity teaching diving now for 35 years and I have never witness such “under the bus” decision making behavior from a diving organization.

    Reply
  20. Barry Atkins
    Barry Atkins says:

    As a lawyer [ albeit in Australia] and as a diver I agree with the concerns expressed which include:-
    1. the abandonment of an associated PADI professional [ who for the sake of analysis we will assume followed the required procedures], by PADI;
    2. abandonment by PADI for no legitimate reason;
    3. abandonment without allowing the Instructor natural justice – the right to know the allegation against him; right to challenge etc;
    4. settlement of a law case between 2 of the parties, when presumable PADI were joined as a Defendant;
    5. collusion between a defendant and a plaintiff to ‘agree’ the liability was the instructors;
    meaning that no instructor can ever be protected by their training agency despite following all procedures required, if the training agency abandons the Instructor.
    meaning that our industry will cease having instructors because they will not be willing to risk the personal liability of being sued.

    The case is a tragedy [ of course for the poor person who lost their life most importantly] but Brian stated what needs to be said so there can be a genuine dialogue on how Instructors can be certain they are protected by the Agency they are associated with.

    Reply
  21. Tom Baurle
    Tom Baurle says:

    Brian,
    I commend you on standing up for the industry and bringing this gross misconduct by PADI to light. I am currently a PADI instructor and have been falsely accused of negligence by PADI in the past. Fortunately for me it was handled without going to court. After reading this article and reviewing the available court documents about this case, Im seriously considering abandoning PADI and crossing over to SDI as I’m currently a TDI instructor as well.

    Reply
  22. DSO, MCP
    DSO, MCP says:

    I’m saddened that PADI instructors can’t possibly adhere to standards. If you can never leave students alone on the surface or on the bottom, how can you stop someone from bolting, when students to instructor ratios are so generous? You can’t – and so you’re being set up to fail. This proves it.

    Reply
  23. Russell Hughes
    Russell Hughes says:

    It seems that PADI has released a rather pointed response to the above letter. I think that this entire mess has been bad for our industry but since Brian started it, I suppose it only fair that we include PADI’s response.

    Reply
  24. Jake Barnes
    Jake Barnes says:

    I appreciate the spirit in which this letter was written – having information shared openly is certainly in everyone’s best interest. Now that PADI has penned a detailed response to your letter, could you please refute their response. As you say – the information in your letter is ‘accurate and verifiable’ which means that PADI is once again spinning a tail. Please help us understand where they are not telling the truth.

    Reply
  25. david cartwright
    david cartwright says:

    I am a retired PADI Instructor, I was a member for almost 30 years and I wouldn’t trust them as far as I could throw them, I paid my dues and watched my ass because I knew that if it came to it PADI would throw be to the fish without a second thought. When I retired I wrote to them and if anyone wants to read it I would gladly e mail it to them.

    Reply
  26. John Birk
    John Birk says:

    Five years ago I retired after 52 years of diving I remember when and why PADI was formed and I have seen and heard far too many dubious practices by PADI over the years, so it comes as no surprise to me.

    As a diving certification agency they have forgotten or perhaps were ignorant of the meaning of the word “competition” which is from the Latin, “competere” which is come together or strive together, unfortunately they started down and have continued down the wrong path and have become Sui generis, so sad.

    Scientia Non Domus,
    (Knowledge has No Home)

    antiguajohn

    Reply
  27. Steven
    Steven says:

    First, to Russell Hughes, who said “this entire mess has been bad for our industry.” Well, if we keep it a secret, and it comes out later, won’t that hurt us more? Keeping bad things a secret is a terrible solution to problems. They just get worse, because offenders know they can act with impunity provided by silent collusion.

    David Cartwright…PLEASE email me the letter, I would LOVE to read it. Having trouble with PADI myself – not over teaching, but over me witnessing other instructors and centers doing VERY BAD things. I am not comfortable with the response so far. How do you trust a process of ‘review’ when the RM is a former employee at the resort you are complaining about (serious stuff, like assaults, dive shop/hotel draining waste water into sea, etc.) and the RM’s wife is their current CD?? How do you trust a process of adjudication when you already know for a fact that PADI management knows of the violations and has done nothing but provide more marketing assistance? It is insane. When people finally learn what PADI dive shops have done to some beautiful places in developing countries, it is going to hit the fan. Governments will step in to do oversight and regulation, and rightly so, and the public will see the dive industry as the biggest hypocrites in the history of the conservation movement – also rightly so. Trouble is, that will only effect mostly decent shops and instructors. Corporate will walk away with their millions. The offending shops will have already closed due to dead reefs and toxic trash heaps.

    I have become convinced that at some point, perhaps when they were acquired by Lincolnshire investments (look it up!), PADI got hijacked and became a profit-and-f-all corporate entity. It’s all about marketing. Quality assurance? I’ll tell you in a few weeks…

    BTW I notice in PADI’s response that a lot of things that Brian claims were not done or said by PADI, like informing him of reasons for expulsion, PADI claims were said, but over the phone. Hmmmm…. I was under the impression that PADI can’t climb out of bed without filing a million forms. I keep an open mind, but it is hard to trust someone when they give ‘eco’ awards to dive shops that drain detergents on to reefs… Just my opinion, of course.

    Tanks, Brian…I was starting to feel all alone in the world, like everyone is so overwhelmed that they are numb and in denial. You and the commenters here give me hope! Someone is finally speaking out. Hopefully someone will listen.

    Reply

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