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’s associate lawyer, Josh Nisker, 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 third part of our blog series entitled: Developing and Funding a Plaintiff’s Personal Injury Practice.
In this post we will take a look into developing systems for document gathering and file development and its importance through the various stages of litigation.
File Development and Progression
In our office, we have dedicated a lot of thought and energy to developing systems for document gathering and file development. If you are running your law firm like a business you will realize that it is very important for files to move as quickly as possible through the various stages of litigation. This is what your client wants and this is also in your best financial interest as all or nearly all of your retainers will be on a contingency basis whereby you are not receiving fees or recovering your disbursements until the case in concluded. In the majority of injury cases, you will not be able to get an opinion on the prognosis for the future from a physician until two years has passed from the date of injury. You should plan to have your case at discovery at or near the two year anniversary of the incident to allow you to set the case down shortly after discovery.
The document gathering process in motor vehicle litigation is essential. The documents are essential to prepare the client for discoveries and avoid inconsistencies and credibility issues at trial. Productions also provide the building blocks necessary to obtain complete and consistent expert opinion. Read more of this article »
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.
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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:
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There is good news to report to anyone who has unjustifiably been denied access to any statutory accident benefit that they have applied for or has had to deal with a dispute over the determination of catastrophic impairment.
Most people reading this blog will be familiar with the dispute resolution procedure under the Insurance Act. Most people will recognize that the procedure is badly broken. Before a dispute can proceed to Court or to a binding Arbitration, a mediation must be held at the Financial Services Commission of Ontario. If the mediator is unable to resolve the dispute, only then are you able to proceed to a final determination of the issue. The difficulty is that mediations are being scheduled more than a year from the filing of an application in many instances.
Now for the good news. Justice Sloan ruled on February 8, 2012 in the case of Cornie v. Security National, that section 19 of the Dispute Resolution Practice Code requires FSCO to conduct a mediation within 60 days of the filing of the Application. If FSCO is unable to schedule a hearing within this time frame, the mediation is deemed to have failed and the claimant can proceed to a final determination.
In rejecting the defence arguments in the case, Justice Sloan says “The insurance companies take the position that the accident victims must simply wait. To entertain this argument could mean that an accident victim might have to wait 100, 300 or 500 days for mediation. I find that submission preposterous.”
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.
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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?
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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.”
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The Financial Services Commission of Ontario (www.fsco.gov.on.ca) has now commenced a review of the “Catastrophic Definition”. The outcome of this review will have a dramatic impact on the victims who suffer severe disabilities in car crashes. For those deemed to be “catastrophic”, it can mean the ability to access essential services to live independently and with dignity. For those that are not, it can mean a life of limited help, despair and a stalled recovery. The stakes are very high!
The FSCO has now appointed an Expert Medical Panel to make recommendations regarding the definition and the assessment process. Careful attention will be made on people suffering traumatic brain injuries, paralysis, spinal cord injuries, severe mental and psychological disorders, and those suffering from multiple broken bones.
Many lawyers, doctors, rehabilitation professionals and treating providers are looking forward to the review. It is hoped that it will finally address the many holes that are within the system. Holes that have resulted in many seriously disabled victims being left out in the cold when it comes to basic care services and rehabilitation treatment. Treatment that will help them get better and integrated back into society and the workforce.
The last changes made by the Ontario Government to the insurance system was in September of 2010. These changes saw a drastic reduction in benefits to those suffering less severe injuries. The intent was to eliminate and drastically reduce benefits flowing to people suffering minor injuries. By cutting the flow, it would mean insurance companies would not have to raise auto insurance premiums to the driving public. It was also seen as a way of making sure greater benefits could flow to the more seriously disabled victims. As some would say, soft tissue injuries would have to take a back seat to the seriously injured.
Although the review process is to look at ways of making the present system better and more efficient, some fear that it will be used as a vehicle by the insurance industry to make it harder for people to be deemed “catastrophic”. This of course would mean people who otherwise would have up to two million in benefits available to meet their needs, would be reduced down to a bare bones package that is exhausted normally with one to two years. This of course cannot be the intent of the review. The review ought to ensure greater access is given to the seriously injured. Substantial savings have already been afforded to the insurance industry as cited in my previous blogs. To now go after the seriously injured and seek to reduce their benefits is just wrong.
Many are confident that the medical panel, FSCO and the Ministry will ensure these seriously injured persons are protected. An expansive approach with the definition must be done. A definition that recognizes all serious injuries. A definition that takes into consideration the collective impact of all injuries on the disabled. It should never be forgotten that there are no windfalls that happen when one is deemed “catastrophic.” Even if someone is found to suffer a catastrophic injury, they still must prove the need for benefits. It simply does not mean money falls on to their lap and they keep it. The money goes to rehabilitation, home modifications, mobility aids, and attendant care. The disabled person still must prove they need the services ( the wheelchair ramp, the wheel chair lift, the helper to get dressed etc.). If they don’t prove it, they don’t get it. If the definition is expanded, it simply means those who need it can access it beyond the temporal and monetary caps of $3,500 or $50,000 as set out in my previous blogs.
If the panel or FSCO or the Ministry seek to tighten up the definition, which would be contrary to the intent of the review, then many severely disabled individuals will be shut out from accessing the rehabilitation and medical help needed to live with dignity and independence. Of course further restriction would simply mean greater savings to the insurance industry. This time however, it will be on the backs of the severely disabled.
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. Read more of this article »