Questions/Answers pertaining to Professional Liability Insurance

Handy info provided by Sport and Fitness Insurance Canada:

Please note – In this article, we generally refer to Personal Training. Whether you are
an Aquatics Instructor, a Tai Chi Instructor or an Aerobics Instructor and so on, these
Professional Liability wordings also refer to you.

What is this insurance for?
Every time you train, instruct or consult with any of your clients, there is risk involved. As a professional in your field, you need to practice loss prevention daily by serving the needs of your clients in a safe environment. You need to protect yourself by purchasing quality insurance.

Am I Covered under my Club’s Insurance? How do I determine if I need my own insurance?
Fitness Professionals often work as employees within the confines of a health club where there is probably coverage already provided by the health club’s insurance policy. But, what if the personal trainers act outside of the operations of the fitness facility where they are employed. Are they covered? The answer is NO!

Am I an Employee or an Independent Contractor?
What defines whether a personal trainer is an employee of a club or working on their own is not only who collects the money, but who has control over decisions as to what, where, when and how you teach a course. An employee is a person in the service of an employer, where the employer has the right to control and direct the employee in how the work is to be performed. The method of remuneration has little or no bearing in this decision.

On the other hand, an independent contractor is generally a person who is contracted to do a piece of work according to his/her own methods, where the employer has little or no control as to what you teach, how you teach it and so on. Independent contractors are generally not covered by a club’s commercial insurance policy. Again, we suggest that you check with the club owner to find out if you are covered.

Sometimes a club will set up programs that are administered by an Independent Contractor such as swimming, martial arts or an entire aerobic program. The firm or individual working under the independent contractor are looked upon as subcontractors and again are also not covered under the club’s insurance.

This is getting to be an extremely grey area with club owners as to whether their own club policy covers instructors or not. Most Fitness Professionals are becoming more like independent contractors and need to purchase their own liability insurance.

If in doubt, check with the club owner to make sure if you are covered or not.

What about signing a waiver?
Each client to whom you provide professional training/group instruction should sign a waiver. This waiver is only a token line of defense. Under the law, individuals can only sign away their right to seek compensation, under circumstances that are reasonably foreseeable at the time of signing the waiver. When things go wrong and your client is injured and goes to a lawyer, you will lose most of the protection afforded by the waiver. The lawyer can normally successfully argue that the injury was not foreseeable, and the court will hold you responsible for any injuries to your client.

Why should I keep records?
If you cannot prove that you have provided a fitness assessment and noted any health problems, the court will find you negligent if your client is injured as a result of the health problem.

Things you may need to know about your clients:
· Do they have any pre-existing condition such as back problems, heart problems, and/or knee problems?

· Make sure they talk to their doctor BEFORE you start them on a fitness program.

· Once you realize that they are a beginner or that there is a pre-existing condition, start them off slowly until they become more physically active.

· You should be assessing your clients on a regular basis, to make sure they are able to increase the amount of exercise.

· Suggest they take part in a physical appraisal, to determine their fitness level. Some people just go gung-ho on exercise and then realize later that they should have been more cautious.

· As their Professional Fitness Expert, you may be held responsible for any injuries to your clients.

Most people starting out with a Fitness Professional should begin slowly and build up gradually. Don’t push anybody to do more than you feel they are capable of performing. This is the safest and easiest way to go. Another suggestion is to have a medical questionnaire for all of your clients to complete and sign. If you do not have a questionnaire of your own, Health and Welfare Canada have a “Par-Q & You” questionnaire available for you. If the client has any medical problems, a Med-X form and a doctor’s note should be obtained.

When and why would fitness professionals need insurance?
As mentioned earlier in this article, if you are an “employee” and you do not act outside of the operations of the fitness facility where you are working, then you are covered under the fitness club’s insurance.

But, if you are doing any special programs on your own outside the scope of the facility, then you will need your own liability insurance. Generally in smaller communities, where fitness facilities are set up in locations such as churches, schools or community centres, you would require additional coverage such as Tenants Legal Liability where any damage to the building due to your negligence is covered. This policy provides this for you. Any time that you instruct, are training, or just advising a client, you are liable, as you
will be seen as an expert in your field, through the eyes of the court.

Are there any examples of Fitness Professional Liability lawsuits?
What is the risk? A recent claim has occurred whereby a personal trainer who was an employee of a club took it upon themselves to advise a client what sort of vitamin supplements to take while doing their exercises. Since the club did not sell any of these supplements, their insurance policy was not set up to cover any sales of these items. The personal trainer went with the client to another location to advise the client what particular supplements to purchase. It turns out that the client had an unknown genetic heart problem and died as a result of taking these supplements. The family of the deceased is suing the manufacturer of the supplements, the fitness facility and the personal trainer. This lawsuit has escalated to $320,000,000. The personal trainer was not covered under the facility’s insurance policy since they acted outside of the operations of the fitness facility where they were employed. They also do not have any legal representation from any insurance company since they did not have any Professional Liability insurance policy of their own. There is also a good chance that the club’s insurance company is going to subrogate against the personal trainer for any damages brought against the club as a result of the personal trainer’s actions…This is a good example of how easy it is to go from being considered an employee to being thought
of as an Independent Contractor. Not only can a situation affect you now, but liability claims can be filed up to 7 years after an injury.