Lawyers file court challenge over ICBC’s new limits on auto insurance payouts

By Justine Hunter | The Globe and Mail

A group representing B.C.’s trial lawyers is asking the courts to overturn new limits on automobile insurance payouts that they say discriminate against people with disabilities.

Effective Monday, the provincial government imposed new rules to curb skyrocketing payments for minor-injury claims by capping settlements for pain and suffering at $5,500 and limiting when accident victims can sue.

The province is the last in Canada to abandon a system in which victims could sue for any type of injury − known as a full tort system.

But the Trial Lawyers Association of British Columbia filed a constitutional challenge on Monday. They say the challenge is to protect the Charter rights of British Columbians because the right to sue is a basic human right.

Rather than waiting for an individual complainant to challenge the law, the case is filed on behalf of “Jane Doe,” an individual whose identity is not yet known who suffers a “minor injury” as a result of an accident and has to follow the new rules.

Attorney-General David Eby said he is confident the amendments will stand up in court. “We believe the amendments we have made are not just constitutional, but good public policy,” he said in an interview.

Basic auto insurance in the province is only available through the Crown-owned Insurance Corp. of B.C., which is on track to post its second $1-billion deficit in a row. Without the caps, he said, insurance rates would have had to climb significantly this year.

Mr. Eby said the changes are expected to restore ICBC’s fiscal health, even after the province has boosted support for those needing medical services after an accident.

“We need to stop the bleeding at ICBC and this is a $1-billion reform that will actually increase benefits for British Columbians,” he said.

The diagnosis of injuries are made by a doctor and ICBC will then assess whether the injury falls under new definitions for a minor injury.

British Columbians with motor-vehicle-accident claims totalling $50,000 or less will have to resolve them through an online dispute resolution tribunal, without the opportunity to go to court.

Shelley Howard, executive director of the non-profit Campbell River Head Injury Support Society, said she is concerned that some accident victims may be caught under the new cap before they realize the extent of their injuries.

“The medical world doesn’t always recognize brain injuries right off the bat. It’s a complex injury,” she said. “I don’t know how the system will be able to go back and rectify the situation.”

The advocacy group wants assurances that people who suffer head injuries won’t fall through the cracks if their injuries are not promptly diagnosed.

Under ICBC’s rules, individuals have two years to settle their claims. Injuries can be switched from the minor classification to the non-minor category if new symptoms emerge in that time and if the file is still open. However, once an individual settles their claim, there is no opportunity to reopen their case.

“People who have a concussion will likely receive legal advice to not settle until that time period is over and it is clear the extent of the injury,” Mr. Eby said.

The trial lawyers association consulted with former NDP premier and attorney-general Ujjal Dosanjh on the case.

In an interview, Mr. Dosanjh said the government is violating the intent of the ICBC system when it was created in the 1970s.

“What you have now is the NDP government of British Columbia saying, ‘we will continue public auto insurance but we will increase rates and diminish your rights,’” he said.

“Taking away tort isn’t modernization, it’s going to medieval times without the right to go to court.”

Woman cuts off own hand with circular saw in brutal insurance scam

A 21-year-old Slovenian woman deliberately cut off her own hand with a circular saw in an effort to cash in on an insurance claim, authorities say.

According to police, the unidentified woman’s family claimed she lost her hand as a result of an accident on their property, saying it happened when the woman was attempting to saw off tree branches. The family said the woman slipped while using the saw, severing her left hand.

Authorities told ABC News the woman had taken out five different insurance policies months before suffering the injury in January and had only made a few payments on each of the contracts. The woman would have allegedly stood to gain 400,000 euros (about CAD$602,000).

The woman was unemployed at the time and had no other source of income, ABC reported. A 29-year-old relative was also detained in the investigation.

“With one of her accomplices, she intentionally amputated her left hand, hoping to stage it as an accident,” Ljubljana police spokesman Valter Zrinski told ABC News.

Family members left the severed hand behind rather than bring it to the hospital to ensure the disability was permanent. However, the hand was recovered and doctors were able to sew it back on.

“Her hand is recovering well,” Zrinski said.

The woman faces up to eight years in prison.

–with a file from the Associated Press

Source: Global News

 

 

Judge refuses to order insurance company to pay victims of negligent lawyer

Colin Perkel, The Canadian Press

TORONTO — It is up to the provincial legislature or the law profession’s regulatory body to decide whether victims should receive compensation when harmed by lawyers who end up without insurance coverage, an Ontario court has decided.

The Superior Court decision means the family of a couple badly hurt in a car crash cannot force payment from the insurance all lawyers in the province must carry in the public interest.

“I…am bound by the law and the facts of this case,” Justice Jamie Trimble said in his decision this week. “If there is a remedy for the Caputos, that remedy lies with the Law Society or the legislature.”

The case arose in 2004 when Francesco Caputo was in a car crash that cost him his life and left his passenger wife Carolina Caputo, who has now died, badly and permanently injured. However, their now-disbarred lawyer, Wayne Novak, failed to file an auto insurance claim. In 2014, a judge ordered Novak to pay the Caputos $321,500.

Because he had no money, the Caputos looked to his insurer, the Lawyers Professional Indemnity Company, known as LawPro, for the money.

LawPro refused to cover the award on the grounds that Novak had refused to co-operate with its investigation. The Caputos, using a novel legal approach, asked the courts to force LawPro to pay up for Novak.

The Law Society of Ontario, which governs the province’s 50,000 lawyers, set up LawPro more than two decades ago to defend and cover claims against its members. Lawyers must carry the insurance to practise. However, if a lawyer fails to report a claim or won’t co-operate with LawPro’s investigation, the insurance company — with about $743 million or 83 per cent of the law society’s total assets — denies coverage.

An investigation by The Canadian Press last year turned up several cases in which victims of negligent lawyers went uncompensated after LawPro would not pay. In response, the law society updated its website to refer to a little known policy which it said offers coverage in those cases.

On Tuesday, the society said it would consider claims denied because a lawyer fails to report a claim or to co-operate with the insurer “provided that the lawyer intended to prejudice the claimant’s efforts to obtain compensation.”

In his decision, Trimble found LawPro, had solid grounds to refuse to cover Novak given his serious failure to co-operate with its investigation.

“My conclusion that LawPro’s denial of coverage to Mr. Novak is appropriate acts as a bar to the Caputos’ notice of garnishment,” Trimble wrote. “LawPro owes no debt to Mr. Novak and therefore, there is nothing exigible under the policy for the Caputos to garnishee.”

In essence, Trimble concluded, the Caputos were asking him to create public policy by declaring that LawPro provide no-fault coverage, which it doesn’t.

“What the Caputos are really asking is that the court engage in judicial legislation (but) it is not the court’s job to legislate,” Trimble said. “The question of whether there should be no-fault coverage for lawyers in Ontario is a question for the (law society) within its statutory mandate, or the legislature.”

Ava Hillier, who represented the Caputos at no charge, expressed disappointment at the decision and noted the family was now potentially on the hook for tens of thousands of dollars in LawPro’s legal costs. Hillier said the family was also considering an appeal, which also carries the risk of further costs.

“Our clients deserve to be compensated; there’s no question about that,” Hillier said. “I’d like to proceed on the basis of public interest.”

A spokesman for Ontario’s attorney general, Caroline Mulroney, did not respond to a request for comment.

‘Exploratory’ research says devices could cut insurance costs

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Flood in entrepreneur’s home could have sunk her business

When a winter melt in 2010 flooded entrepreneur Dawn Mucci’s basement – where she was running her franchise operation – it was her business insurance that helped her bounce back quickly.

“Everything was taken care of. I was pleasantly surprised. The only thing that wasn’t taken care of was my stress,” says Ms. Mucci, founder and chief executive officer of Lice Squad, which offers eco-friendly products and services across Canada to cope with lice.

About 45 centimetres of water filled the bottom of her Innisfil, Ont., home, damaging everything from electronics to her company’s products and forcing her to move the operation to her dining room one floor up.

“It was very upsetting,” Ms. Mucci recalls. “But you have to keep your operation going. You’re not just supporting yourself, you’re supporting your franchises. Having a reliable and good insurance provider was critical. You have to think of these things when you’re a business owner.”

Some home-based entrepreneurs forget to add business coverage to their personal policies, including property and contents insurance, says Pete Karageorgos, director of consumer and industry relations at the Insurance Bureau of Canada.

It’s an additional premium, he says, but it can save entrepreneurs a lot more if they are hit by a fire, flood or other incidents.

Mr. Karageorgos uses the example of an entrepreneur with a home-based computer-repair business whose customers’ equipment was damaged in a flood on his property. The business owner didn’t have business coverage on his home policy, so the losses weren’t covered. “That was an expensive lesson,” Mr. Karageorgos says.

The same lesson applies to business owners who use their personal vehicles for work. If they have customer products in the car, and the vehicle is stolen, for example, those contents aren’t covered without business coverage on the car.

Entrepreneurs should also consider other insurance products, experts say, whether they work at home or in a commercial or industrial space, such as business interruption insurance, which covers the loss of earnings if the operation has to shut down due to a flood or fire, for example.

Insurance is not something you can set and forget.

— Dan Kelly, president of the Canadian Federation of Independent Business

Many businesses also buy liability insurance to cover on-site injuries to clients or staff, as well as product liability that protects them if their product is found to be defective or causes harm to a user. Professional liability, which protects business owners who are sued for errors, omissions or negligence in their work, is also becoming more common, as is cyber liability, which covers a company for an electronic security breach.

Some startups wait to buy business insurance until after their company has gained momentum, which could be too late.

Dan Kelly, president of the Canadian Federation of Independent Business (CFIB), advises entrepreneurs to buy insurance early on and recommends they revisit their policies regularly, such as every three years. “Insurance is not something you can set and forget,” Mr. Kelly says.

To ensure owners have the right amount of coverage for their particular company – not too much or too little – Mr. Kelly suggests using an insurance broker. “You need someone in your corner who can share with you the risks you may be taking on and ensure you have proper protection,” he says.

Business owners who belong to certain associations might have access to group coverage plans that can reduce their premiums and deductibles. For example, CFIB members can sign up for an insurance package from Northbridge Insurance that also provides certain types of free legal advice for a year.

Toronto-based Foxquilt Inc. is a financial technology company that offers small-businesses group purchasing power for insurance. The company caters to the many small businesses and consumers who can’t access group insurance.

Foxquilt co-founder and chief financial officer Karim Jamal says many entrepreneurs don’t realize how quickly a flood, fire or liability case could derail their company’s growth if they don’t have proper coverage. “Small businesses are so mired in growing and making revenue that [they] tend to overlook some of the things that could disrupt the business,” Mr. Jamal says. “It’s a cliché, but having insurance is about having peace mind.”

While the flood of 2010 was devastating for Ms. Mucci, having the right insurance helped her to recover and, not too long after, she expanded into a commercial office space. Her company has been growing ever since.

“Nobody likes insurance,” says Ms. Mucci, but for business owners, “you’d be insane not to get it.”

Homeowners Adrift Assessing Flood Insurance

University of Waterloo study shows Canadians have spotty access to good information about the risks

Excerpreted article was written BY VERONICA REINER

Many of us don’t know the extent of our flood insurance coverage until after a claim’s in progress. But even for those interested in learning more about the risks, good information is hard to come by in Canada, according to a new study by researchers at the University of Waterloo.

The study examined available information for more than 300 communities across Canada that are classified as being high-risk for flooding, noting many homeowners are essentially on their own in figuring out the risks and what kind of coverage is needed.

Researchers found that 62 per cent of available maps did not meet the basic criteria for communicating flood risk information to the public. Professor of political science Daniel Henstra, who helped conduct the research, said this could potentially cost homeowners tens-of-thousands of dollars.

“Without that information, [people] are unlikely to be buying flood insurance or to be implementing any flood protection measures,” said Henstra.

“If you think about that, when there’s a flood, disaster assistance programs will pay some of the cost of that, but we found in most cases, in the average home, you’re looking at $40,000-$50,000 out of pocket even after disaster assistance. So if there’s no insurance, people could easily be defaulting on their mortgages. A flood like this could really ruin somebody.”

There are individual measures you can take to protect yourself from damages, such as buying the appropriate insurance, but good information isn’t always easy to come by, the study suggests.

While most incidents occur during snowmelt and spring rains, flooding can happen at any time of the year. For example, there was significant flooding in Elmira in June 2017 during the warmer summer months, in that case due to heavy rainfall in the northern part of the Grand River system.

The knowledge gap is one place insurance companies can be of assistance, especially as the industry adjusts to the implication of climate change and the threat of more intense storms and weather-related damage.

Those at the brokerage level are on the front lines of increased claims and requests for information about coverage.

That’s certainly been the experience of  Steve Wagler, director of sales at Josslin Insurance, who said he sees an uptick in activity after storms such as the one in Elmira.

“Everybody needs to be considering what type of water coverage they have,” said Wagler. “That’s part of what we do as brokers, provide advice – it’s not just about buying the coverage, it’s about understanding what you have, and what you may need and then when you need to use it.”

He also recommends taking a closer look at the fine print associated with flood risk coverage – sometimes it may not cover the full amount, or even come close.

“Before you automatically renew your policy, you should take a look at some of the detail,” said Wagler. “Because a lot of times, companies will put sub-limits down. You may think you have it, but some companies may limit you to $10,000 of coverage.

“If you have serious water damage in your basement, on average, it costs just over $40,000 to repair a basement. So $10,000 wouldn’t even really cover the cleanup – people need to pay attention to it.”

Basement flooding is a significant problem area in most incidents. There is a range of different flood insurance including overland water protection, which protects when water from rivers, streams or other bodies of water flows onto dry land. Other types of coverage offered are in the case of a burst pipe, groundwater coverage, or for a sewer backup. Certain insurance companies sell all kinds of coverage in one package.

When assessing flood risk, the insurance industry looks at several factors.

“Our industry looks at it on a couple of different levels; mainly they’ll look at mapping and the vicinity to a body of water,” said Wagler. “If you’re within 100 metres of a stream, or any kind of waterway, you’re likely to have difficulty buying a product.

“Prior loss history and vicinity to water is going to determine whether you can buy it or not.”

In the meantime, more needs to be done about the lack of flood risk information in the first place, said Henstra, adding that municipal, provincial and federal governments all have a shared responsibility to provide this information.

“Whether they choose to act on the information is different, but right now, it’s not even knowable,” said Henstra. “So it’s really kind of unfair to expect property owners to be buying insurance to protect themselves when they don’t even know if they’re at risk.”

The study found that other countries Austria, Belgium, Germany, France, the U.K., all have access to better quality flood-risk information. For example in the U.K., a homeowner can get a detailed flood risk report that includes details such as times of year to expect flooding, measures to prevent it, and the type of flooding you’re vulnerable to, just by typing in the users postal code.

“And really – it’s perplexing why we don’t have these maps. It’s not really an insurmountable challenge. In Canada, we’ve got the expertise, technology, data; it’s all there,” said Henstra. “I guess we just haven’t seen the leadership yet that’s required to get a new mapping effort off the ground.”

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