Husband Denied Coverage for Wife’s Scuba Diving Death

Sylva v. Culebra Dive Shop, 2005 U.S. Dist. LEXIS 19204 (D.P.R. Aug. 31, 2005).

Stephanie Showalter

On July 16, 2003, Linda Marie Wieditz, an experienced scuba diver, died while diving near Culebra Island in Puerto Rico. Culebra Dive Shop provided transportation to the site and instructors. During the dive, one of the instructors felt the currents were too strong and ordered the divers back into the boat. As Wieditz was attempting to swim back to the boat, the instructor moved the vessel towards other drifting passengers. Wieditz was never seen again. Paul Sylva, Wieditz’s husband, filed suit against Culebra Dive Shop and ING Insurance for damages associated with the wrongful death of his wife.

Waiver of Responsibility
Prior to the dive, on June 23, 2003, Wieditz and Sylva signed waivers of responsibility required by Culebra. Culebra argued that Sylva’s claims were barred by the waiver. Sylva does not challenge the validity of the waiver, but he does question whether the waiver was in effect on the date of his wife’s dive. Culebra claimed the waiver was simply signed in advance and remained in effect until the dive happened. Sylva argued that several questions on the waiver form, such as “Last time you dove?,” “Number of dives since you have been certified,” and “Have you taken any medication [in] the past 24 hours?,” could lead a reasonable person to conclude that the waiver was only applicable for one day.1

Commonwealth law states that when “the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulations shall be observed.”2 The magistrate judge assigned to initially review the case found that the waiver was not clear. The waiver does not state if it is only applicable for the day it is signed nor is there any reference to the number of dives it would cover. The applicability of the waiver will depend on the intention of the parties, a matter of fact for the trier of facts (the jury). Summary judgment was therefore not appropriate at that time and the case proceeded to trial.

Coverage under ING’s Policy
Sylva filed a claim seeking third party liability coverage under Culebra’s ING Insurance policy. ING argued it was entitled to summary judgment because the policy’s “diving exclusion” barred coverage for Sylva. The magistrate judge and district court agreed. The ING policy expressly excludes third party liability coverage for “liability to divers operating from the scheduled vessel, from the time they commence to leave the scheduled vessel, until they are safely back on board.” Wieditz died while she was in the water and coverage is therefore barred by the exclusion.

Sylva, not to be deterred by the plain language of the policy, made the intriguing argument that since he was not a diver and not in the water at the time of his wife’s death he could recover damages. Culebra’s policy states, however, that it “[does] not provide coverage for any person for Bodily Injury, Illness, Disease, Death or Property Damage while in the water in connection with any diving activity, or as a consequence of any diving activity.”4 The magistrate swiftly dismissed Sylva’s arguments as the provision clearly “excludes claims brought by any person ‘as a consequence of a diving activity.’”5 The district court granted summary judgment in favor of ING because the diving exclusion barred Sylva’s claims under Culebra’s policy.

Endnotes
1. Sylva v. Culebra Dive Shop, 2005 U.S. Dist. LEXIS 21478 at *17 (D.P.R. Aug. 31, 2005).
2. 31 L.P.R.A. § 3471.
3. Sylva, 2005 U.S. Dist. LEXIS 21478 at *8.
4. Id at *9..
5. Id. at *33 (emphasis in original).