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.

Click here to view the embedded video.

“The Ontario Ministry of Transportation’s latest statistics show that in 2010, seven people died and more than 300 were hurt in over 1,300 collisions on Ontario roads on the Victoria Day long weekend,” the article says.

“A check with the City of Toronto’s traffic safety unit confirms that in Toronto alone, more than 130 people were hurt in over 400 collisions on this holiday weekend last year.”

Orlando, partner with McLeish Orlando LLP, says impaired driving is a major issue on holiday weekends, and notes it’s worth making the time to take safety precautions.  Watch Video

“If you can avoid the rush-hour cottage country drive, do so; you won’t be sharing the road with those who, no matter how many aggressive lane changes they make, will only arrive about 15 minutes ahead of everyone else who is keeping their cool,” he writes.

“And it may seem obvious, but step away from the cellphone. Put it in your briefcase or trunk and out of your hands so you won’t be tempted to check just one last email.”

When it comes to boating safety, take extra caution on the first time out, advises Orlando.

“Wear a life jacket, and while it’s obvious, leave the alcohol on the dock because it’s just as dangerous as drinking and driving,” he says.

Source: AdvocateDaily.com

Finally, in a brief endorsement released late in 2012, the Ontario Court of Appeal confirmed in Martin v. Fleming[1] that where a plaintiff has been involved in two accident and the actions are tried together to facilitate global assessment of damages, plaintiff is subject to one deductible for each claim.  The Court adopted the following reasons of the motion judge:

In my opinion, the application of individual deductibles to each accident or action is consistent both with the wording of the legislative provision, when read in the context of the legislation as a whole, and the approach taken in other decisions.

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.

The court considered and rejected the “Charter values” approach to interpretation of legislation advanced by the Ontario Trial Lawyers Association on the basis that such an approach could only be adopted where the legislation was ambiguous.  In this case, language was clear and free of ambiguity.

Conclusion

The cases reviewed in this paper are disparate and reflect the broad range of decisions handed down in the past year.  As such, it is not possible to isolate trends or draw any larger lessons from the cases.  They do, however, provide valuable guidance on topics that are frequently the subject of dispute.

To read the previous post click here.

About Rikin Morzaria, Partner, McLeish Orlando LLP

Rikin received a Bachelor of Business Administration (BBA) with Distinction from the Schulich School of Business at York University. He received his law degree from the University of Toronto, where he received the top prize in Trial Advocacy and the top prize in Public International Law.

Rikin Morzaria devotes his practice to representing individuals who have suffered serious or catastrophic personal injuries and families who have lost a loved one in wrongful death cases.

Rikin has written and published more than twenty journal articles and chapters in leading textbooks in the field of civil litigation and personal injury law. He is regularly invited to give lectures to other lawyers and to health professionals about litigation and personal injury law.

Rikin was co-counsel at trial in McNeil v. Bryan, and achieved an $18.4 million judgment, the largest personal injury damages award in Canadian history. He has also represented clients in several precedent-setting cases, including a decision that prevented an insurer from obtaining defence medical examinations that would have delayed a trial of a multi-million dollar action.

Rikin is a member of The Law Society of Upper Canada, Ontario Trial Lawyers’ Association, Canadian Bar Association, Ontario Bar Association, and is currently a Director and the Secretary of the Board of Canadian Lawyers for International Human Rights (CLAIHR).

When not working Rikin enjoys cycling and spending time with his wife and son.

If you have any questions send an email to Rikin at rmorzaria@mcleishorlando.com.

In El Dali v. Panjalingam,[1] the defendant lost control of his car on an icy road, crossed the centre line, and struck the plaintiff, El Dali’s, stopped car.  Following a four-week trial, the jury answered “No” to the following question:

Was there any negligence on the part of the defendant, Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident on December 11, 2005?

The plaintiff appealed, arguing that the jury’s verdict on liability was unreasonable and unsupported by evidence.  The plaintiff pointed out that the defendant Panjalingam had led no evidence about why he lost control of his vehicle.

The Court of Appeal allowed the appeal, set aside the jury’s verdict on liability and ordered a new trial on liability alone.  It noted that the defendant had provided no explanation for Panjalingam’s driving or why he had crossed the centre line and struck El Dali’s stopped car.  There was no evidence about his speed or any steps he may have taken to avoid the accident.  The Court, citing Gauthier & Co. v. The King,[2] noted that poor driving conditions alone did not permit the jury to infer that the accident was unavoidable and not caused by driver’s negligence.  Moreover, the fact that the plaintiff was able to maintain control over his own car was some evidence that the road conditions did not point to an unavoidable accident.  Finally, and perhaps most importantly for counsel, the Court found that he defence lawyer’s suggestion in closing argument that the defendant be found to be only 50 per cent at fault, while not binding, strongly suggested that the jury’s verdict was unreasonable.

The implication of the Court’s reference to the defence lawyer’s position in closing argument may be that defence lawyers will be more reticent to take softer positions at trial for fear that they will be held to those positions by appellate courts.

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.

Source: AdvocateDaily.com

Last year, I reviewed the decision of the Ontario Court of Appeal in Morsi v. Fermar Paving Limited.[1]   Morsi provided a reminder that in municipal road authority cases, it is not enough to establish negligence on the part of the road authority; a plaintiff must also establish that the negligence presents a risk to a driver exercising ordinary care.  In Morsi, the plaintiff drove recklessly at over twice the speed limit along the disputed stretch of road before losing control of his car.  The experts called at trial were in agreement that had Mr. Morsi operated his vehicle at or modestly above the posted speed limit, he would have been able to successfully negotiate the section of the road where he lost control.  Based on this finding, the Court of Appeal held that Mr. Morsi’s reckless conduct absolved the defendants of liability.

Two decisions of significance have been released following Morsi, which provide some guidance as to how trial judges will apply the causation analysis dictated by the Court of Appeal in Morsi.

Fordham v. Dutton-Dunwich

 Fordham v. Dutton Dunwich[2] arose from a single vehicle collision.  The plaintiff, Andrew Fordham, was 16 years old and held a G2 driver’s licence.  He ran a stop sign on a rural, gravel road at an intersection where yield signs had recently been replaced by 4-way stop signs.  The intersection involved a sharp 8.9 metre offset that a driver would need to prepare for 2.5 to 3 seconds ahead of time.  Because Mr. Fordham did not stop at the intersection, he lost control of his vehicle while attempting to manoeuver through it.  He had a blood alcohol concentration of between 29.6 and 53.6 mg/100 mL at the time of the collision and later pleaded guilty to failing to stop at a stop sign.  Mr. Fordham sued the municipality for failing to warn of the change in road alignment, based on the requirement in the Ontario Traffic Manual that a checkerboard sign be in place if the intersection is considered an offset.  The defendant argued that, (1) the intersection was not an offset and (2) even if it was, it did not pose an unreasonable risk of harm to an ordinary motorist approaching the intersection because of the stop signs; there was no dispute that, had Mr. Fordham stopped at the stop sign, he would have been able to manoeuver safely through the intersection.

Evidence was presented that indicated that it was normal practice for rural drivers to proceed through intersections without stopping when they could see clearly that there was no traffic coming.    The defendant relied heavily on Morsi and argued that Mr. Fordham’s driving was “reckless.”   Madam Justice           Morissette disagreed.  In doing so, she cited the following factors:

• He was not driving at an excessive speed
• He had never driven on the road before and had no warning that the alignment of the road was about to change.
• He  had a visible stop sign but likely saw that there was no oncoming traffic and drove through, not suspecting a change in the alignment of the road.
• Ordinary rural drivers do not always stop at stop signs.

Justice Morissette also pointed to the following facts regarding the defendant’s conduct and the state of the intersection:

• The actions of rural drivers who regularly failed to observe regulatory signs was a significant enough issue that it caused numerous complaints to Council and prompted it to replace all yield signs with stop signs.
• The defendant knew that ordinary rural drivers do not always stop at stop signs.
• Proper checkerboard signage was inexpensive at $800
• The defendant’s practice at other similar intersections was to place checkerboard signs in conjunction with stop signs.  This was to protect people from going through the stop sign.
• The hidden and unknown change in road alignment was obscured from view and constituted a “hidden hazard.”

Justice Morissette concluded that the circumstances of the intersection required more than a simple stop sign to give ordinary rural motorists reasonable notice of a potentially catastrophic hazard ahead.  She accepted the plaintiff’s submission that it was reasonable to infer that Mr. Fordham would have reduced his speed if he had been informed of the change in alignment at the intersection.  She apportioned liability 50/50 between the plaintiff and the defendant.

Ferguson v. Brant (County)

On April 2, 2005, 17 year-old Jesse Ferguson was driving westbound on Scenic Drive in Brant County.  There was snow and slush on the road.  At some point, Scenic Drive curved sharply to Mr. Ferguson’s right.  He failed to navigate that curve.  The road did not have a “sharp curve” sign which was called for by the Ontario Traffic Manual.  Experts for the plaintiff and the defendant disagreed on whether the existing signs warning of a “winding road” and a “y intersection” were sufficient.

Mr. Justice Kent reviewed the applicable authorities, including Morsi and concluded that a municipality owes a duty to keep the roadway in a reasonable standard of repair so that users exercising ordinary care may travel on it safely.  The municipality does not owe such a duty to a negligent driver.  He quoted the following applicable provision from the Ontario Traffic Manual:

In situations where a speed reduction is required to negotiate a curve, it is important that the indicated advisory speed be both safe and realistic. An advisory speed that is too high compromises safety by impacting vehicle stability, while one that is too low may also compromise safety by lowering driver compliance. If the general driver perception is that advisory speeds can be exceeded by a significant margin without risk, problems may arise where curves are severe and reduced safety margins apply.

He held that the signage on the relevant stretch of Scenic Drive was insufficient for the following reasons:

• It allows drivers to conclude that Scenic Drive and its curves could be safely negotiated the posted speed limit of 60 km/h;
• they allow drivers to conclude that the accident curve with something less severe than a sharp curve; and
• it prevented drivers from knowing that a safe speed to navigate the accident was 20 km/h less than the posted speed limit.

Based on the evidence of a forensic engineer and the police officers, Justice Kent concluded that Mr. Ferguson was driving at or slightly above the posted speed limit of 60 km/h.  Given the road conditions, and in particular the fact that the roads were snow-covered, it was incumbent on Mr. Ferguson to drive at a lower speed.  Justice Kent found that Mr. Ferguson was contributorily negligent.  He fixed the defendant’s liability at 55% and the plaintiff’s degree of contributory negligence at 45%.

Both Fordham and Ferguson suggest that trial judges will not expect a driver to strictly comply with the rules of the road in order to find that the driver was exercising ordinary care.  Instead, if plaintiffs can show that they were driving in a manner consistent with the driving habits of other motorists along the same stretch of road, they will be entitled to recover damages if the municipality in question has not met the requisite standard of care.  Indeed, in both cases the plaintiffs were negligent in their operation of their vehicles, but the trial judges nonetheless found that the degree of negligence was in keeping with what one would expect of a driver exercising ordinary care.

Roque v. Pilot Insurance Company

In May of 2012, the Ontario Court of Appeal released its decision in Roque v. Pilot Insurance Company.[1]  In Roque, the Court held that a plaintiff’s limitation period against an underinsured insurer pursuant to an OPCF 44R endorsement begins to run when the plaintiff has enough evidence to give him a “reasonable chance” of persuading a judge that his claims would exceed the minimum limits $200,000.  The Court’s decision was a departure from some previous cases[2] that held that the limitation period only begins to run from the time when the plaintiff knows that the available insurance coverage under a defendant’s policy is less than that available under his or her own policy.

The facts of Roque are relatively straightforward.  Fernando Roque was injured in a motor vehicle collision on December 5, 1996.  He started a lawsuit against the at-fault driver within the two-year limitation period.  By 1998, it was clear that the value of Mr. Roque’s claim was well in excess of $200,000.  However, it was not until 2002, well after the after the expiry of the two-year limitation period, that Mr. Roque’s lawyer learned that the defendant only had $200,000 of insurance coverage, the minimum limits of motor vehicle liability coverage in Ontario.

Mr. Roque started a lawsuit against his insurer, Pilot Insurance, pursuant to his OPCF 44, within several months of learning of the defendant’s inadequate insurance coverage.  Pilot brought a motion to dismiss Mr. Roque’s action on the basis that the limitation period had expired.  Mr. Justice Russell Juriansz, writing for a unanimous Court upheld the motion’s judge decision dismissing Mr. Roque’s action.  He held that the clear language of the OPCF 44 dictated that the limitation period begins to run when the plaintiff has a reasonable prospect of proving that his or her case exceeds the minimum limits of $200,000.  The relevant language is set out in s. 17 of the OPCF 44, which is reproduced below:

Every action or proceeding against the insurer for recovery under this change form shall be commenced within 12 months of the date that the eligible claimant or his or her representative knew or ought to have known that the quantum of claims with respect to an insured person exceeded the minimum limits for motor vehicle liability insurance in the jurisdiction in which the accident occurred….  [Emphasis added]

The Court suggested that its decision will not result in a multiplicity of proceedings because s. 258.4 of the Insurance Act obligates an insurer to promptly inform the plaintiff of the existence of a motor vehicle liability policy, the liability limits of the policy, and whether the insurer will respond to the claim.   On this view, a plaintiff need only commence an action against his or her own insurer where a defendant’s insurer does not comply with s. 258.4 or where the insurer specifically states that there is insufficient insurance available to respond to the plaintiff’s claim.   However, this ignores the fact that Roque dictates that the limitation period will not be extended where a plaintiff initially receives information in accordance with s. 258.4 that suggests a defendant has sufficient liability insurance available to respond to the plaintiff’s claim and will respond, only to later learn that the defendant’s insurer has changed its position.

The Court’s decision in Roque would seem to leave plaintiffs’ counsel with three courses of action.  First, counsel can give notice to the plaintiff’s insurer and secure an agreement that the insurer will waive a limitations defence in exchange for the plaintiff’s agreement not to issue a Statement of Claim until it becomes clear that there are insufficient insurance proceeds available from the tortfeasor’s liability insurer.  Second, counsel can issue against the plaintiff’s insurer in every motor vehicle case and later discontinue the action after securing a similar limitation period waiver.  Finally, counsel can operate as the Court of Appeal suggested by asking that defendants’ insurers comply with s. 258.4 of the Insurance Act and only issue claims against the plaintiff’s insurer where the insurer does not comply.  However, this leaves plaintiffs to bear the risk of running out of time in cases where the defendant’s insurer is forthcoming with information but later reverses its coverage decision.  The plaintiff may have a claim for negligent misrepresentation in such cases, but that will only be possible where the insurer did not have good reason to provide the initial information regarding coverage.

Schmitz v. Lombard General Insurance

The predicament created for plaintiffs’ counsel by Roque may have found a solution in the more recent case of Schmitz v. Lombard General Insurance.[3]  In Schmitz, Mr. Justice James considered the issue of whether the limitation period contained in the OPCF 44R continues in force or whether it has been displaced by s. 4 of the Limitations Act, 2002.  The Ontario Court of Appeal did not consider this issue in Roque, presumably because the limitation period in the OPCF 44R dated back to 1996 and preceded the coming into force of the Limitations Act, 2002.

In Schmitz, the plaintiff argued that the limitation period in the OPCF 44R, being contractual, is governed by section 22 of the Limitations Act, 2002.  That section states that “a limitation period under this Act applies despite any agreement to vary or exclude it,” if the agreement was made after 2004.  Lombard argued that the agreement was made before January 1, 2004.  The plaintiff argued that the annual renewal of automobile insurance contracts creates a new policy of insurance each year.

Justice James accepted the plaintiff’s submissions on the applicability of the Limitations Act, 2002.  He distinguished Roque on the basis that this submission appeared not to have been made in that case, and noted that “discoverability is overarching policy consideration implicit in [the Limitations Act, 2002] even though tis application may occasionally be awkward”.[4]  Accordingly, he held that paragraph 17 of the OPCF 44R cannot operate as a limitation defence and that the applicable limitation period is determined by s. 4 of the Limitations Act, 2002.

To read the first part of the blog series click here.

Broker’s Negligence: Zefferino v. Meloche Monnex

Following the September 1, 2010 Insurance Act amendments that reduced accident benefits coverage, many plaintiffs’ lawyers considered the possibility of suing brokers who did not advise their clients of the possibility of buying optional benefits to increase coverage.  Zefferino v. Meloche Monnex Insurance Co.[1] is a reminder that in such actions, it is not enough for an insured to prove that an insurance broker breached the applicable standard of care to be successful in an action against that broker.  Rather, plaintiffs must also establish that they likely would have exercised the option to purchase those benefits.

In Zefferino, Nicola Zefferino purchased a policy from Meloche Monnex in 2003 and renewed the policy in 2004.   In 2003, Meloche offered Mr. Zefferino optional coverage for various accident benefits and he declined.  When he renewed the policy in 2004, Meloche did not offer Mr. Zefferino optional income replacement benefits, even though his income would have qualified him for benefits of $1,000 per week rather than the statutory minimum of $400 per week.  Mr. Justice Reid was required to address the three following issues in the litigation:

1. Did Meloche owe the plaintiff a duty of care?
2. Did Meloche breach the applicable standard of care by failing to properly offer optional income replacement benefits to the plaintiff?
3. Would the plaintiff likely have purchased the optional benefits if they were properly offered and, if so, what amount of benefits would he likely have purchased?

With respect to the first question, Justice Reid reviewed Hedley Byrne & Co. v. Heller Partners Ltd.[2] and Fletcher v. Manitoba Public Insurance Co.[3]  Hedley Byrne established that insurance agents who are in the business of providing insurance information and advice to customers can owe a duty of care to those customers.  In Fletcher, the Supreme Court of Canada held that those who provide information on auto insurance owe a duty of care to their customers if “(i) such customers rely on information, (ii) the reliance is reasonable, and (iii) [the provider] knew or ought to have known that they would rely on information.”

Justice Reid held that, as in Fletcher, it was obvious in the case before him that Meloche knew or ought to have known that purchasers of insurance would reasonably be expected to rely on information communicated to them by Meloche.  Consequently, Meloche did owe Mr. Zefferino a duty of care.

On the second question, the standard of care, the plaintiff relied on s. 27(1) of the Statutory Accident Benefits Schedule, which requires an insurer to offer option al income replacement benefits “at $600, $800, or $1,000, as selected by the named insured under the policy, for the purpose determining the weekly amount of an income replacement benefit.”  Meloche raised two defences on the standard of care.  First, it argued all it was required to do to meet its obligations under the SABS was ask its customers whether they were interested in purchasing optional benefits.  It was not required to the inquiring about its customers’ circumstances or to provide a quote as to the additional costs that might be involved in providing optional coverage.  Second, Meloche argued that its practice was consistent with the industry standard.

Justice Reid rejected both of Meloche’s defences.  On the first point, the statutory requirement to offer optional coverages, Justice Reid held that insurers must give consumers understandable alternatives, which will allow them to measure the need for more coverage against risk and cost.  Otherwise, there would be no purpose behind the mandatory language.  In the case of less well-known variables, the insurer may face an increased obligation to explain the existence of optional coverages and details.  With respect to the industry standard behaviour, Justice Reid noted that customary behaviour, while relevant, is not conclusive evidence of compliance.  In other words, “general non-compliance with the statutory requirement does not mean that non-compliance is acceptable.”

To determine whether the plaintiff would likely have purchased optional benefits had they been properly offered to him, Justice Reid embarked on a detailed review of the plaintiffs evidence and historical behaviour.  He noted first that the plaintiff had an income that would support optional benefit coverage in the amount of $600 per week on the date that he purchased policy.  However, in the 10 years before Mr. Zefferino purchased insurance from Meloche, he had purchased insurance from four other insurance companies and had never purchased anything other than basic coverage.  In addition, Mr. Zefferino had chosen to purchase insurance from Meloche based solely on the cost of premiums.  Significantly, Mr. Zefferino’s wife, who had actually spoken with the representatives of Meloche, was not called to give evidence at trial and Justice Reid through an adverse inference with respect to her understanding of optional benefits and her choice to decline them.  Ultimately, Justice Reid found Mr. Zefferino’s evidence that he would have secured optional income replacement benefit coverage if he had understood what was being offered not to be credible.  Having chosen the least expensive possible form of insurance available, he “cannot now change that bargain.”

This third element of proving a broker’s negligence claim based on a failure to advise of available increased coverage is often overlooked when plaintiffs’ counsel consider bringing these actions.  Plaintiffs advancing such claims will likely have to show evidence that they have historically chosen to purchase insurance coverage based on factors other than cost alone.  This might include the decision to purchase other forms of optional coverage such as increased third-party liability or some form of personal liability umbrella policy (PLUP).

Click here to view the embedded video.

Click here to view the embedded video.