The Insurance Minefield ~ Chapter 2

As people here seem to take much more care over there replies and seem to understand a bit more about the subject, I thought I would share the following post with you that I have made on another forum and see what comments you have. I hope you find this interesting and worth your time.

From the legal prospective, here is the extract.

'What is interesting is that with the improvement of equipment design it is making it more possible for more people to go off piste. A fact that Insurance companies are starting to be concerned about. With an increasing number of people going off piste the number of accidents is also likely to increase. Until now, on piste collision has and I think will still be the highest risk, but that does not mean we should not consider how to make ourselves safer off piste. Thinking it will never happen to me is a grave mistake.

It has been confirmed by a friend in correspondence he has had with underwriters and brokers that some the Insurance companies are currently reviewing the wording of there policies in line with the changing number of people venturing off piste.

Henry's Avalanche company are now also taking a look at this change as they have evidence that in Val d'Isere some Insurance companies have started to refuse payment for rescues. A very worrying fact.

Going off piste without the whole group carrying the right kit is not safe. In my opinion it might be considered negligent and now some insurance companies might use it as grounds for not paying up.

Likewise not having a good knowledge of an area, yet going off piste there, could equally expose you to being refused compensation.

In French law: Article 121-3 du CODE PENAL which has now been modified a number of times. It is clear that you must not expose others to unnecessary risk as the leader of a party.

According to reports published under the title, 'responsibilities penale et activities sportive and touristic.' They have outlined a number of cases where such actions as going into areas which were deemed unsafe, the groups not having the correct equipment or the level of those not suitable to go somewhere has resulted in prosecutions. Serious concerns for anyone going off piste or even on difficult pistes with others less able than yourself where you could be seen 'as responsible' as the most experienced person present.

Some interesting points to consider when trying to stay safe on or off piste with others.

Am still following this thread with interest. To my inexperienced mind, this issue seems to get less and less clear, the more that is discovered.

Looking at it form the insurance co's perspective, I can understand why they would want to review their policies with more and more people going off piste. It makes good business sense. However, their methods are a mystery at the moment, and the outcomes are unclear.

It seems that a good base level of knowledge, which is widely recognised (inc by ins co's.) would be useful. Looking at it very simply, and throwing an idea in to the pot... if they could all agree on a specific short course (for example) that would demonstrate an individual is capable of being sensible off piste, this could form the basis of eligibility for a sensible off piste policy. Trouble is this would then be open to abuse e.g. companies charging extortionate amounts of money to attend, with the skier being unable to gain insurance if they do not.

The 'responsible party' point which includes on piste skiing is an interesting twist. In a clear cut situation I can see the sense in it e.g. a group of more experienced skiers take a beginner on to a black run he/she is not ready for and an accident happens. The most experienced skier should really have had the sense to recognise that it was a daft thing to do. Again though perhaps the question is in the application. It depends how far they take it when the situation is much greyer e.g. a group of skiers with similar levels of experience and skill try a new run, one may have a year or two more under their belt, and an accident happens. My head says that each of these people were capable of making their own decisions, and not one stands out as the 'responsible party'. However, would that person with the extra year or two be prosecuted? I'd like to think that common sense would lead to a 'no' as the group were so similar in skill. Or, taking the first example again, what if the group had warned the beginner that they should not attempt the black run, but they insisted and joined their friends anyway (short of physically restraining them how do you prevent it?), why should the most experienced person then be prosecuted because their mate took a risk they shouldn't have?

It would be interesting to see some examples of this rule being applied to see how it works in practise.

Ally

As far as I am aware there is no way to ascertain the number of people who ski off piste, it is still a minority but due to improvements in equipment it's growing every year. Stöckli are expecting a 30% increase in the sales of all mountain skis this season.

Snowcrazy

The figures are specific to Switzerland. They detail the frequency of the individual danger levels recorded between 1998 and 2008 by the Swiss Institute for Snow and Avalanche Research (SLF) http://www.slf.ch/ which engages in research, scientific services, teaching and public relations, focusing on snow, the atmosphere, natural hazards, permafrost and mountain ecosystems. Currently it employs 130 people from 15 different countries. I obtained the information from these two documents: http://www.slf.ch/dienstleistungen/merkblaetter/Attention_Avalanches_e.pdf and http://www.slf.ch/lawineninfo/zusatzinfos/interpretationshilfe/interpretationshilfe_e.pdf both are in English. You might also like to read this leaflet http://www.bfu.ch/PDFLib/1036_42.pdf issued by the Swiss Council for Accident Prevention

The translations of the danger levels were agreed in 1993 when representatives of the European alpine countries agreed on a uniform definition of the avalanche danger levels, the current 5 point scale.

In the last paragraph of Jason's post he writes "So there you have it, yet another company saying, do not ski in avalanche level 4 (significant risk) and you must always carry avalanchr safety equipment on all occasions" it appears that he has interpreted "significant" as level 4. I think significant is more likely to mean level 3, considerable / erheblich / marqué / marcato.

Here in Canton Valais there is a law governing so called "risk sports". It regulates the activities of outdoor professionals, including mountain guides and ski instructors. It requires that they obtain a permit from the canton before starting work. This is issued free of charge on production of a valid qualification (Swiss level 3 / ISIA card in the case of ski instructors) and proof of liability insurance to the value of 10 million francs. Working without a permit could result in a fine of between 5 and 25,000 francs. Once an instructor has a permit he /she may work in accordance with the law irrespective of experience. For further details see Ordonnance sur l'exercice / Verordnung here: http://www.vs.ch/Navig/navig.asp?MenuID=23067&Language=fr&RefMenuID=23053&RefServiceID=356&link= At the moment this applies only to canton Valais but a national law is being drafted. I am not a ski instructor so I can't provide any info about their insurance.

With regard to the legal aspects I thought this article was interesting especially the section "Risk community, and de facto leader" it's in German but you can get the gist if it via Google translate http://translate.google.ch/translate?js=n&prev=_t&hl=en&ie=UTF-8&layout=2&eotf=1&sl=de&tl=en&u=http%3A%2F%2Fwww.powderguide.com%2Fmagazin.php%3FID_Sub%3D2778%26display%3D833

It has been reported in a Swiss Sunday paper that three skiers who triggered an avalanche, which injured three skiers on a piste in Anzère last December are to be prosecuted. If found guilty they face a maximum penalty of 3 years in jail. They will also be liable for damages. The rescue required 3 helicopters 130 rescuers and 8 avalanche dogs. PisteHors has further details http://pistehors.com/news/ski/comments/0995-swiss-prosecution-could-impact-off-piste-skiing/?gid=995000
There was a similar incident in Zermatt last December when a group comprising 2 adults and 5 children (all from the same family) triggered a 30 metre wide 200 meter long avalanche that reached the piste near the restaurant at Grünsee, taking them with it. The police have charged the parents and the eldest child (19) with the same offence. The examining magistrate has yet decided on whether to prosecute.

SwingBeeps mention of instructors, and guides is an interesting comparison. Instructors have to maintain their qualifications with their governing body. The main reason for doing so, is liability. If an instructor has to argue their competence in court, the governing body will normally support them.

If you had to take your insurance company to court after an off piste incident, would evidence of training (not necessarily qualifications) in off piste conditions, be of benefit to your case? If you have such training, could you better prove you had made every effort to meet the insurers clauses. I would have thought it would be harder for an insurer to deny a claim, if a person had training, and could show they had taken precautions to meet the insurers requirements. How would the law look at this?

Good point Trencher, the law would look at this case more favourably in passing the Reasonableness Test. It would be seen that reasonable steps had been taken for mitigation. In as much as qualification and experience appear to carry more sway within the law. The skier having taken the necessary steps to mitiagte against unforseen circumstances.

Thanks very much for all that SwingBeep :D

I don't know if it would work or not, but maybe what they ought to do, in the larger resorts, is to make different types of pistes to suit the different types of skiers/boarders.

They do seem to be doing this already to a certain extent. I have seen pistes dedicated to beginners and those going slowly, with a speed limit on them. And I believe some of the resorts now have one or two ungroomed pistes. Perhaps they could have some off-piste areas which are actually reasonably safe from avalanche - the marked trail type of thing - but patrolled and checked for safety.

They also seem to have started on free avalanche training - looking for survivors etc. They do it at Courchevel for example. and I was thinking about doing it last year.

Ally

Swingbeeps, (thanks for the correction Ally) first may I thank you for finding those links, whilst I did say they were found by someone else, I did not use your name as I did not know if you would want me to on another forum. But thanks again, they had some very interesting stuff.

Ally
In response to your last post, in Les Arcs for the past two seasons they have 9 off piste nature ride areas just as you are talking about. Avalanche protected and partolled'ish. but great to take people to learn off piste without the risk as long as you only go there when open, In Tignes there is the Zone, plus a few other areas. In La palgne they now have the same in four areas and Val d'Isere are also starting to do the same thing this winter.

A good step forward for most skiers I think.

Many resorts also have, fast pistes, slow pistes and beginner pistes. Les Arcs has all of these.

Free avalanche training has been going for a while in Les Arcs at the avalanche park. As Les Arcs and the paradiski area built it's rep on off piste and extreme snowboarding back in the 80's, it is good to see them doing all this now.

AllyG wrote:
Perhaps they could have some off-piste areas which are actually reasonably safe from avalanche - the marked trail type of thing - but patrolled and checked for safety.

That's the US model, with everywhere within the resort boundaries being avalanche controlled. It makes more sense, especially in view of this topic, that people who are not serous back country skiers/boarders (Holiday Harrys like me :lol: )) can go off the groomed runs in relative safety. This leaves the decision of what the risk is, to experts, who will close areas that are not safe, until avalanche control measures have been taken. More serious types can go outside the boundaries at their own risk.