Supreme Court agrees auto insurance companies can’t retroactively rescind contracts

ING Insurance rescinded policy of man whose car collided with UWindsor student

CBC News

Canada’s highest court has upheld a lower court’s ruling that auto insurance providers can’t retroactively rescind insurance policies without just cause and at least 15 days notice.

In September 2002, Karla Merino — who was a student at the University of Windsor — was hit and injured by a man who was drunk while driving. She was 22 at the time.

A financial settlement was denied to the Merino family because the driver wasn’t insured during the accident.

Intact Insurance — previously operating as ING Insurance  — claimed that problems with information disclosed on thd driver’s insurance application meant the company had the right to rescind the policy.

According to the insurance company, the driver’s spouse — who hadn’t signed the policy — failed to accurately disclose her driving history.

As a result, the insurance company rescinded the driver’s policy without providing 15 days notice as per law, determining that the failure to disclose the spouse’s driving history meant the agreement between the driver and the company was never made.

In 2017, a Windsor judge ruled in favour of the insurance company, a decision which the Merino family later appealed.

The Court of Appeals for Ontario overturned the initial decision in April 2019, determining that auto insurers in Ontario can’t retroactively rescind a contract.

Additionally, the Appeals Court ruled that the insurance company’s failure to provide the driver with at least 15 days notice of the contract’s termination meant the contract wasn’t legally terminated.

“The contract therefore remained in effect on the date of the accident,” reads an excerpt from the April 2019 decision.

That decision led the insurance company to file an appeal with the Supreme Court of Canada (SCC).

The SCC upheld the Ontario Appeals Court’s decision Thursday, dismissing the insurance company’s appeal.

“I think this insurer and all insurers are going to read this decision today, as they read the appeal decision in April, and I hope reasonable underwriters and reasonable auto insurers and their executives will take to heart what the law now says, and this won’t happen again,” said Donald Leschied, Karla Merino’s attorney.

Albertans with distracted driving tickets are finding it hard to get car insurance

Brokers say insurers are cracking down by denying full coverage or boosting rates

By Peggy Lam · CBC News

Albertans with distracted driving convictions are finding it increasingly difficult to get full insurance coverage at reasonable rates, insurance brokers tell CBC News.

Edmonton driver Derek Johnson got a distracted driving ticket last year.

When he and his wife approached Action Insurance Group earlier this month to renew their insurance, they were told no companies were willing to offer Derek comprehensive and collision insurance.

“Sorry, I don’t have any other options with that conviction,” broker Adam Kluczewski said in a message to Miranda Johnson. “Companies are really cracking down on distracted driving. I even called a couple to see if they would bend and none of them will.”

Kluczewski and Action Insurance Group declined to comment on the situation.

“I think it’s a load of … nonsense really,” Derek Johnson said. “I just have one single ticket on my licence and it was a distracted driving offence, and insurance companies are telling me that they’re not going to give me full coverage.”

Collision insurance optional

In Alberta, legislation only mandates auto insurance companies to provide liability and accident benefits coverage.

Liability insurance covers damages or injuries a driver may cause to others. Accidental benefits covers injuries suffered by drivers and their vehicle occupants, giving them access to medical treatments.

Companies can choose not to provide collision and comprehensive insurance because they’re optional by law. Collision insurance covers damage to the driver’s vehicle when it collides with another car or object. Comprehensive insurance covers other damages, such as theft, fire and hail.

Although collision and comprehensive insurance are optional, it’s typically required if the car is financed or leased.

“If you’re not able to get full coverage comprehensive insurance … you can’t finance a vehicle, [because] you need full coverage on a vehicle,” said Ray Robichaud, CEO of Edmonton Auto Loans, which works with 20 lenders.

‘Having to turn people away’

Brokers help customers find the best deals on insurance by working with a selection of insurance providers. CBC News surveyed three insurance brokerages in Edmonton — Armour Insurance, MBS Insurance Brokers and HDF Insurance — to ask how drivers might expect distracted driving tickets to affect their ability to get insurance.

Of the three firms, two — Armour and MBS — said they’ve had to turn clients down for full coverage because of distracted driving convictions.

Robichaud said he worked for eight months with a client who couldn’t get a car loan. He had been denied comprehensive and collision insurance because of a distracted driving conviction and two accidents on his record.

Armour Insurance CEO Rob Marusin said it’s becoming more common for clients with convictions to be denied comprehensive and collision insurance.

Marusin said as “intermediaries,” his brokerage firm has had to turn some clients with convictions away. “It’s created a bit of a hard market for consumers,” he said.

He said companies that offer the optional insurance for high-risk clients might require them to pay up-front for the full year.

“We try and help everyone, but right now … we unfortunately are having to turn people away because they maybe can’t afford to pay the full premium for the year,” he said.

Impact of 5 per cent annual cap 

Some brokers blame the trend on the five-per-cent cap on auto insurance rates implemented by the former NDP government in November 2017. The cap expired Aug. 31 and Alberta’s UCP government has said it will not be renewed.

“I think that was creating some problems for them, so this was one solution — albeit imperfect solution — but it was one solution that I believe some [companies] are undertaking,” said George Hodgson, CEO of the Insurance Brokers Association of Alberta.

Alberta Treasury Board and Finance said from Nov. 30. 2017 to Aug. 31 of this year, it received roughly 50 complaints related to availability of coverage. Of the total, three complaints were related to distracted driving.

“After annual rate increases were capped at five per cent in late 2017, we learned that some insurance companies were taking steps to limit their business as a way of minimizing their losses,” said Jerrica Goodwin, a spokesperson with the ministry. “As not all insurance companies are taking these steps, Albertans are encouraged to explore their options.”

15 to 25 per cent hike 

Greta Gerstner, a customer service representative with MBS Insurance, said she got a distracted driving ticket in June 2017 after more than a decade with a clean record.

“I was just plugging my cellphone in at a red light and didn’t realize that you can’t have the phone in your hand for any reason while the vehicle was running, so I got the ticket,” she said.

When she went to renew her insurance and the conviction showed up on her driver’s abstract, Wawanesa Insurance increased her premiums by 15 per cent.

I was just plugging my cellphone in at a red light and didn’t realize that you can’t have the phone in your hand for any reason while the vehicle was running, so I got the ticket.– Greta Gerstner

“Loyalty does help because if I were new to them, they wouldn’t even offer me that coverage,” Gerstner said.

“Wawanesa says it specifically will not even offer you collision and comprehensive coverage if you’re new to them, if you have a distracted driving ticket. So for that financed vehicle, you’re out of luck.”

Distracted driving as a ‘major’ conviction 

Other firms say insurance can go up by 25 per cent after a distracted driving conviction, depending on whether the insurer treats it as a major or minor conviction. If it’s minor, the increase is typically 15 per cent. If it’s major, the increase can be around 25 per cent, depending on the company and individual.

To be able to treat distracted driving as a major conviction, insurance companies must apply to Alberta’s Superintendent of Insurance and the Alberta Automobile Insurance Rate Board. A spokesperson for the board said most companies still treat distracted driving as a minor conviction. But some brokers anticipate that will soon change.

“They have analytics that point to the fact that if an individual has a distracted driving ticket, the likelihood of an accident is greater,” Belland said. “I’m sure their premise is … the odds of having an at-fault accident definitely goes up.”

Ten out of the 12 insurance carriers HDF Insurance works with treat it as a major conviction. But at MBS Insurance, only one out of six carriers treat the offence as a major conviction.

A spokesperson for the insurance rate board said the board doesn’t have the resources to analyze how many insurers are treating distracted driving as a major conviction.

23,000 distracted drivers in Alberta 

After shopping around for weeks, Derek and Miranda Johnson finally got approved for full coverage by Sonnet Insurance Group.

Derek said with Sonnet’s quoted price, his premiums will increase by nearly 25 per cent. Another company, the Co-operators Group Insurance, quoted him $2850—​​​​nearly double his old rate.

“It’s just kind of surprising to me,” Miranda added. “This is basically how to limit people from getting insurance, and that would just force people to be driving without it, because there are so many people, especially nowadays, who get that ticket.”

Edmonton police say they have issued more than 5,200 distracted driving tickets so far this year. In 2018, they ticketed 7,739 distracted drivers.

Provincewide, more than 23,000 drivers were ticketed for distracted driving in the year ended March 31, 2019.

Source: CBC News

Speeding is Best Predictor of Crash Risk

speed demonThe University of Waterloo has identified speed as the best predictor of crashes after analyzing data from onboard devices in vehicles. The research examined four aggressive driving behaviours, speeding, hard braking, hard acceleration and hard cornering for possible links and the likelihood of crashes. Of the four, only speed was statistically significant as a strong predictor of crashes.

From the article’s abstract:

Usage-based insurance schemes provide new opportunities for insurers to accurately price and manage risk. These schemes have the potential to better identify risky drivers which not only allows insurance compa- nies to better price their products but it allows drivers to modify their behaviour to make roads safer and driving more efficient. However, for Usage-based insurance products, we need to better understand how driver behaviours influence the risk of a crash or an insurance claim. In this ar- ticle, we present our analysis of automotive telematics data from over 28 million trips. We use a case control methodology to study the rela- tionship between crash drivers and crash-free drivers and introduce an innovative method for determining control (crash-free) drivers. We fit a logistic regression model to our data and found that speeding was the most important driver behaviour linking driver behaviour to crash risk.

Link:

Cst. Tim Schewe (Ret.) runs DriveSmartBC, a community web site about traffic safety in British Columbia. For 25 years he was an officer with the Royal Canadian Mounted Police, including five years on general duty, 20 in traffic and 10 as a collision analyst responsible of conducting technical investigations of collisions. He retired from policing in 2006 but continues to be active in traffic safety through the DriveSmartBC web site, teaching seminars and contributing content to newspapers and web sites.

www.drivesmartbc.ca

 

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Vehicles Owned by Dead People

GhostIn the time that I have been writing this column I have accumulated many different topics. The requests have been varied, but I must admit, I never would have come up with this week’s topic myself. A reader has asked about vehicles owned by dead people.

The question is not as far out as you might think, and has some very important legal considerations. The lawyer I spoke with to gather background information suggested that on the death of a sole registered owner, the plates be cancelled, a storage insurance policy be purchased, and the vehicle be parked until the estate is probated. If the vehicle is worth less than $10,000 and the spouse is registered as co-owner ICBC will allow the surviving spouse to change the registration to indicate that they are sole owner in order to continue to use the vehicle prior to probate.

If others continue to use the vehicle after the registered owner’s death, be sure all insurance companies with an interest in the vehicle are notified of the situation. Failure to do so could result in a denial of insurance coverage if the vehicle were damaged or stolen.

How does a deceased registered owner get a red light camera ticket, and how do the police require this person to give details regarding the driver if the vehicle is involved in a breach of the Motor Vehicle Act? The responsibility falls on the shoulders of the executor or administrator of the estate. This is the person the law places the burden on, and it can be a very heavy responsibility if things go wrong. My lawyer advisor strongly recommends that an executor get legal advice immediately on becoming involved with the administration of an estate.

Cst. Tim Schewe (Ret.) runs DriveSmartBC, a community web site about traffic safety in British Columbia. For 25 years he was an officer with the Royal Canadian Mounted Police, including five years on general duty, 20 in traffic and 10 as a collision analyst responsible of conducting technical investigations of collisions. He retired from policing in 2006 but continues to be active in traffic safety through the DriveSmartBC web site, teaching seminars and contributing content to newspapers and web sites.

www.drivesmartbc.ca

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