The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.
An auto insurance industry review of catastrophic impairment provisions is unnecessary at this time, Toronto critical injury lawyer Dale Orlando says in Law Times.
The provincial government has reopened renewed consideration of the provisions by starting stakeholder consultations not restricted to medical experts as was the case with last year’s review by the Financial Services Commission of Ontario, the article says.
“Where’s the fire?” Orlando, partner with McLeish Orlando LLP, asks in the report.
“They’re searching for a solution to a problem that simply doesn’t exist. Around one per cent of claims are deemed catastrophic. On a claim-by-claim basis, it’s a lot of money, but in the scheme of things, there’s no evidence that there’s been an upswing in costs.”
The Law Times article also discusses an Ontario Trial Lawyers Association advisory sent out in March that alleged the Insurance Bureau of Canada is misinforming officials about insurance premiums, claims costs, and profits.
The Insurance Bureau of Canada responded by publishing an actuarial analysis from JF Cheng and Partners on March 28, and then a KPMG LLP-authored analysis of Ontario private passenger automobile insurance results for 2008-12, the article says.
Mr. Smith suffered serious injuries in a single vehicle collision involving a rental car owned by Enterprise Rent-A-Car. Mr. Smith was a passenger in the car and the driver of Mr. Smith’s vehicle held her own insurance policy with liability limits of $1 million. Enterprise brought a summary judgment seeking to be released from the action, because Enterprise could not be liable for any amount over $1 million.
McLeish Orlando successfully defended the motion on behalf of Mr. Smith.
On October 16, 2012, Justice McCarthy of the Ontario Superior Court of Justice ruled that Enterprise was required to remain a party to the action. Justice McCarthy agreed with the plaintiff’s position that the 2006 amendments did not modify the applicable principles of vicarious liability or joint and several liability. Specifically, his honour made the following findings:
- Legal liability for the accident and legal liability to pay the claim are “distinct considerations.”
- Section 267.12 of the Insurance Act clearly contemplates the “continuing legal exposure” of a lessor for vicarious liability.
- The plaintiff clearly had a right of action in vicarious liability against Enterprise and that right of action was not displaced by the operation of section 267.12.
- The provisions of the Insurance Act did not prevent the plaintiff from maintaining an action against Enterprise.
The Smith decision is significant in that it establishes that rental companies must remain parties to an action despite the availability of other insurance. This is especially important to plaintiffs as there will still be an owner’s insurance policy available if the driver’s insurer denies coverage during the litigation. This ensures that the plaintiff will not be left without an insurance company to satisfy a judgment.
The full text of the decision may be found online at CanLii Smith v. Smith, 2012 ONSC 5872 (CanLII).
The Ontario Trial Lawyers Association has recently sent out a newsletter to every MPP in Ontario regarding the Insurance Bureau of Canada misinforming officials about insurance premiums, claims cost and profits.
McLeish Orlando stands behind OTLA in ensuring that MPP officials are well informed. See below for the newsletter sent out by OTLA.
The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week. The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.
In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.
The Ontario Court of Appeal released the Pastore v. Aviva decision today and decided that a marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired.
In the decision delivered by Justice Feldman, the Court concluded that the Director’s Delegate’s decision to this effect was a reasonable one:
In my view, the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range
What is also very important is that the impairment does not have to be due “solely” to the mental or behavioural disorder. The marked impairment can be caused by a combination of mental and behavioural disorder as well as physical causes of pain:
Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning. The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company. In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score. Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.
Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.
On February 26, 2000, Michael Downer pulled into a Scarborough gas station in his Jeep. He left the engine on the Jeep running while he sat in the driver’s seat and separated money from his wallet to pay for gas. When Mr. Downer looked up from his wallet, he saw 3 or four young men around his jeep. The men began hitting Mr. Downer while pulling him out of the vehicle. Mr. Downer put the Jeep into reverse to get away from the men. One of the men tried to force the gear into park while Mr. Downer reversed out of the gas station and then drove off. A short time later, he became aware that he had suffered injuries in the incident.
Mr. Downer’s insurance company brought a motion to dismiss Mr. Downer’s claim for benefits on the basis that he had not suffered his injuries in an accident.
Was the carjacking an accident?
The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident. The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment. This is not akin to a lottery ticket. A catastrophically injured person must still prove that the benefits are reasonable and necessary. All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need. Last week, an expert medical panel completed a review of the definition of catastrophic impairment. The recommendations are based on a technical review. In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.
The text of the article is reproduced below:
‘Catastrophic impairment’: What’s at stake
Published On Sun Apr 17 2011
President of the Ontario Trial Lawyers Association
“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”
In an earlier post, we criticized a Toronto Star column for biased coverage of recent auto insurance changes. The column, which was written by Joel Cohen, a representative of the auto industry, presented misleading and unsupported facts about accident victims. We printed Dale Orlando’s response to the column on our blog and urged the Star to do the same. To its credit, the Toronto Star did publish Dale Orlando’s response. A link to his response can be found here (Mr. Orlando’s letter appears below the first letter).
We applaud the Toronto Star for presenting an alternate viewpoint on this important issue.
After September 1, 2010, car insurance companies and brokers across Ontario will be presenting consumers with new choices for their auto insurance renewals. A daunting process is ahead. The insurance system in Ontario is one of the most complicated systems in North America.
Even though car insurance is a major budgetary item for many families, many consumers are unfamiliar with the coverage they actually have. After September 1, consumers will be given a number of choices as to amount of benefits they wish to purchase. By giving such a choice, the intent was to give them a break on premiums being paid.
The new basic auto policy being sold contains far less benefits than what existed before September 1. With benefits being drastically reduced, one would of course expect to see some significant reductions in how much one has to pay in premiums.
Therefore it is absolutely critical that each consumer ask their insurance company and brokers what are they buying and at what price. Like shopping in a supermarket, each item ought to have a price tag. Continue reading
When an insurance company denies accident benefits to an insured person, the insurer must advise the insured person of his or her right to dispute the denial and of the most important points in the process. A recent court decision has confirmed that if an insurer falls short of this requirement, it will not be able to rely on the limitation period that begins with that denial.
In Yifru v. Certas Direct Insurance Company, Certas Insurance denied Ms. Yifru’s claim for non-earner benefits on June 23, 2003. Certas advised Ms. Yifru that she could dispute the decision by applying for mediation within two years of the denial. However, it did not advise her that she had any further options if she and Certas failed to settle her claim at mediation.
[This is the fifth of a five part series by Patrick Brown on upcoming changes to auto insurance]
Injured accident victims will have a significant amount of their benefits reduced due to assessment costs. Despite the dramatic slashing of benefits reported in my previous blogs, consumers will also face further reductions based on the fact that the cost of assessments will come out of the amount of benefits available.
For example, if a consumer is injured in a car accident and the injuries are not considered to be catastrophic, they presently have $100,000 in benefits for medical and rehabilitation treatment. Any assessment costs to obtain the benefit are over and above the $100,000.
Under the new standard policy without buy ups, the consumer will only have $50,000 available in benefit dollars. That $50,000 includes assessments costs. Therefore, if $5,000 is paid for an assessment to obtain the benefit, then the amount available to the injured person is reduced down to $45,000. Continue reading