Driver 25% At Fault For Being Rear Ended Due to “Sudden Stop”

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.

In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.

Flooding Risks – Where The Canadian Insurance Market Is At

Article by Nicole Truong

Extreme weather events, such as the heavy rainfall and flooding we’ve witnessed this spring in Quebec and in British Columbia, inevitably lead to discussions about the impact of climate change and the cost of inaction.

The recent flooding in various riverside regions of Canada that has left citizens feeling helpless as they try to salvage their home and belongings from murky waters of overflowing rivers across the country, is a reminder that governments and the insurance industry could do more to prepare for the future.

In Canada, flooding is among the most onerous risks for the federal government. Since the 1970s, it has paid nearly $6.5 billions to flood victims, i.e. about 78% of the expenses incurred under the Disaster Financial Assistance Arrangements (DFAA). What’s more, in 2010-2014, it spent $3.7 billions in aid to flood victims.

As natural catastrophes recur more frequently, we expect these numbers to rise steadily in years to come.

New endorsement

While these are staggering figures, insurers in Canada have only just recently begun offering homeowners insurance protection against the risk of flood, already available in other G8 countries. In fact, the Insurance Bureau of Canada announced last winter that it had drafted a new endorsement against overland flooding which will be in force this coming June 1st, 2017, and therefore available to Quebec homeowners through participating insurers.

This is not to say that insurers in Canada have ignored the risk of flood. It is covered under automobile insurance and commercial property insurance policies. However, it begs a question as to why it took so long for insurers to offer a product for the Canadian homeowners’ insurance market.

Part of the reason is that the risk itself defies the economic parameters of insurance; i.e. it is not entirely unforeseeable and uncertain. In fact, floods tend to happen periodically, and the resulting damages are serious and costly. Foreseeability of the occurrence of floods leads to adverse selection of the risk and creates an imbalance on the market where a greater proportion of persons who are highly exposed to the risk buy the insurance protection as opposed to those who are less exposed. As a result, the insurance principle of risk sharing among insureds no longer applies. Eventually, offering the insurance protection is no longer financially sound and is unattractive because it is too expensive.

Role of the federal, provincial and municipal governements

But because of the scarceness of flood insurance, the Canadian federal government ends up paying the bill through the DFAA, which is funded indirectly by taxpayers. The provinces also provide financial assistance which only covers the affected populations’ basic needs. In the long run, as we witness floods more frequently, the situation will no longer be socially and economically viable. This is why it is high time for governments and the insurance industry to react and stem the tide before the situation deteriorates further.

The Canadian federal, provincial, territorial and municipal governments each have a role to play in assisting the insurance industry to control the risk of floods. The federal government is currently conducting floodplain mapping  to identify the boundaries of a potential flood event and to support informed decisions and investments to reduce the impacts of flooding in communities across Canada.

To be successful, it requires the cooperation of the provincial and municipal governments as they have the expert knowledge of the specificities of the regional and local areas. While municipal governments are responsible for tracking flood risk and implementing risk mitigation measures, the provinces supervise and work with them to set priorities. Provincial governments also regulate the insurance industry in this particular aspect. It is why all government levels must address the issue together.

Expectations for the future

Finally, the emerging market of home insurance covering the risk of flood in Canada will eventually ensure adequate and efficient reconstruction of infrastructures after major flooding. It will also make sharing information between various government levels and the insurance industry easier, which is in the interests of all parties involved, especially the victims. If the uptake of this new insurance product turns out to be positive, we can realistically expect quicker re-building and a degree of relief for the federal and provincial governments as there will be less reliance on the DFAA and public funds.

Nonetheless, we have a long way to go. Past governments have underestimated the needs to invest in infrastructures and in expert intelligence in order to assess properly the risk of flood. By putting their best foot forward in adopting a coherent and integral approach in tackling climate change and natural catastrophes, governments in Canada and the insurance industry will have to learn to respond efficiently to environmental and natural threats upstream as well as downstream.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: Mondaq

Cars and bikes: learn to coexist on the road

Sunny days are on the way, which is a joy for avid cyclists, who can at last get back on their bikes. It’s also the beginning of the sometimes strained relationships between cyclists and drivers. Sharing the road is a sensitive subject. Quite often the responsibility for accidents is shared between cyclists and drivers. For riders and drivers, sharing the road safely is everybody’s concern. Here are a few pointers for getting along successfully.

Road cyclists can never be too careful

In discussions with drivers, they sometime say that cyclists are at fault for accidents. So here are a few reminders for cyclists:

  • Keep visible at all times: It’s the rider’s responsibility to ensure that cars see them when they’re on the road. Gear up with reflectors and active lighting (a white light on the front and red in back) when riding at night. And when you pedal in the day, don’t hesitate to where colourful clothes. The one rule to keep in mind is this: the more visible you are, the safer you are.
  • Follow the sense of direction: This may seem obvious, but riding against the flow of traffic is a frequent cause of accidents on both two-way and one-way streets. The sense of direction applies equally to bikes and cars, so don’t do what you would never find yourself doing behind the wheel of a car.
  • Respect the Code of the Road: This means stopping at red lights! Even if the path looks clear. Nobody is insusceptible to slight inattention or misjudging vehicles that arrive faster than anticipated.
  • Make bike paths your priority choice: As bike paths are made for cyclists, they are safer than main streets, so use them as much as possible. Before heading out on the road, consult a map for the bike paths in your city.
  • Get yourself a mirror: A bike mirror helps you confirm if a vehicle or another cyclist is coming up behind you, keeping you more aware and able to adapt your riding as a result.
  • Establish eye contact: Always try to make visual contact with car drivers around you to ensure that they see you and understand your intentions.
  • Invest in a GPS for bikes: Have you heard of SmartHalo? Developed in Montreal, this smart device guides cyclists around town easily and intuitively.

In the driver’s seat, stay alert at all times

In discussions with cyclists about sharing the road, they most often bring up their feelings of not really being considered by drivers, and therefore not truly safe. So here are a few recommendations for drivers:

  • Keep the potential presence of cyclists in mind: Quick, smaller and quieter than cars, it may not always be obvious that a cyclist is near. Always keep it in mind that a cyclist may appear at any moment.
  • Be attentive: Check your mirrors and always signal before turning. Be just as attentive when opening your door and check your blind spot when turning to ensure that the way is clear.
  • Keep your distance: If you pass a cyclist, make sure to keep a distance of at least one metre beside them.
  • Slow down at intersections: Check to the left and right even if the light is green. You can never be too cautious.
  • Be courteous and patient: Bicycles are more fragile than cars, so let cyclists pass, particularly when it’s raining or snowing.
  • Use the “Dutch Reach” when opening the door: This technique, taught during driver’s tests in Holland, consists of opening the door with the right hand. This basically forces the driver to make a rotational movement that allows them to take a glance behind them. This way, they can see if a cyclist is coming from behind.

On the road, it’s up to everyone to be responsible, as one moment of inattention can cost the life of a driver or rider. Being cautious and courteous and communicating your intentions clearly makes all the difference.

One act at a time, the city is becoming more safe and secure for everybody.

Did you know that bicycles are covered by home insurance? Don’t hesitate to contact us to find out more! 

Source: www.belairdirect.com

 

Five Pitfalls Of Cybersecurity Insurance: Lessons From The United States

Five Pitfalls Of Cybersecurity Insurance: Lessons From The United States

Article by Ruth Promislow and Ethan Schiff

Given the increasing threat of cyberattacks and the corresponding costs, businesses are increasingly considering cybersecurity insurance. But insurance is only as effective as the scope of the coverage. Though Canadian courts have not yet interpreted insurance policies in the cybersecurity context, American cases highlight five noteworthy pitfalls.

  1. Coverage Denied Because the Insured Did Not Comply with Underlying Obligations

Just as health coverage may be contingent upon the insured maintaining a healthy lifestyle, cybersecurity insurance may be contingent upon the insured meeting certain technical standards. In Columbia Casualty Co v Cottage Health System, the insurer denied coverage and alleged that the insured failed to comply with required “procedures and risk controls”, which imposed an obligation to “follow minimum required practices”.

  1. Coverage Denied Because the Incorrect Party Was Injured

In P.F. Chang’s v Federal Insurance Co, the insured (P.F. Chang’s) made a claim on its insurance due to a data breach resulting in stolen records belonging to its customers. P.F. Chang’s did not suffer an injury. The court concluded that the relevant insurance policy did not cover P.F. Chang’s because the policy required that the claimant suffer an injury. The policy at issue was marketed as “a flexible insurance solution designed by cyber risk experts to address the full breadth of risks associated with doing business in today’s technology-dependent world.”

  1. Coverage Denied Because the Incorrect Party Caused the Injury

In Zurich American Insurance Co v Sony Corp of America et al,1 Sony made a claim on its insurance for defence and indemnification due to losses resulting from a data breach by criminal hackers. The policy provided coverage for “oral or written publication in any manner of the material that violates a person’s right of privacy.” The court held, however, that the policy only provided coverage if Sony published the material itself. Since the hackers published the material, Zurich had no obligation to indemnify Sony.

  1. Coverage Denied Because the Cyber Activity Was Merely Incidental

Cybersecurity insurance may only provide coverage if the loss clearly results from cyber activity. In Apache Corp v Great American Insurance Company, the insured became the victim of fraud after an employee wrongfully determined that a known vendor’s telephone and email request to transfer money was authentic. The request turned out to be fraudulent and the insured reimbursed the vendor. The insured made a claim based on its insurance which covered for “loss of, and loss from damage to, money, securities and other property resulting directly from the use of any computer to fraudulently cause a transfer…”. The court held that the circumstances were not covered because the computer use was not the direct result of the loss, but rather was “merely incidental”.

  1. Coverage Denied Because the Litigation Was Outside the Scope of Covered Claims

Insurance may provide coverage for certain claims to the exclusion of others. In Travelers Property Casualty Company of America v Federal Recovery Services Inc, the insured made a claim based on costs incurred for litigation resulting from a tort claim for intentional misuse of its data storage activities. The insurer denied the claim because the policy only provided coverage if the loss was caused by “any error, omission or negligent act.” The court held that the lawsuit against the insured for “knowledge, willfulness, and malice” was outside the scope of the coverage.

Conclusion

The United States case law highlights the importance of understanding your company’s risks and vulnerabilities in order to define the precise scope of cybersecurity insurance required. A risk and vulnerability assessment is a critical component to establishing an overall cybersecurity plan that will mitigate risk and corresponding damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Water damage has surpassed fire as the leading cause of home insurance payouts, according to IBC.

Read more

2 men charged, 3rd sought in $10M fraud ring bust

By News Staff | City News

Toronto police have arrested two men, and are looking for a third, after they allegedly broke up a massive GTA fraud ring.

Police allege the trio used identity theft and fraud to fund a lavish lifestyle that included $10,000 crocodile shoes and $150,000 watches.

But the flashy clothing was just the tip of the iceberg: they allegedly stole $10 million from Canadians, Canadian institutions, and people living abroad.

The investigation began last summer. In the probe, police allegedly seized “37 fraudulently-obtained credit cards, hundreds of pieces of presumably stolen mail, and a series of notebooks containing the handwritten identity information of approximately 5,000 GTA residents.”

The details in the mail and in those notebooks was the starting point for the investigation, dubbed Project Royal. The Royal Canadian Mounted Police, the Competition Bureau of Canada, the Ontario Ministry of Government and Consumer Services, the Ontario Ministry of Finance, the U.S. Federal Trade Commission, and the U.S. Postal Inspection Service were all involved.

Adedayo Ogundana, 45, also known as Oladipupo Ogund, of Toronto, was arrested on Dec. 13, 2016. He’s charged with two counts of fraud over $5,000; 10 counts of fraud under $5,000; possession of property obtained by crime over $5,000; and possession of proceeds of crime.

He will appear in court on Thursday.

Adekunle Johnson Omitiran, 37, of Toronto, surrendered to police on April 27. He is charged with fraud over $5,000; four counts of fraud under $5,000; two counts of identity theft; trafficking identity information; possession of credit card obtained by crime; possession of proceeds of crime; possession of proceeds of crime; and fail to comply with probation.

He will appear in court on Friday.

Police believe the Omitiran had ties to people with “legitimate” access to identity information. Those people, police allege, sold information to Omitiran. Police are trying to track down those people.

A warrant has been issued for Duro Akintola, 44, also known as Michie Noah, of Toronto.

Emmanuel Salako, 47, of Toronto, also known as Gee Salaq, has been indicted by the United States Postal Inspection Service in Chicago under the name George Salako. He is wanted in the U.S.

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