Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

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

Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.

In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.

Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:

[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.

David Peterson and Tom Ridge partner to Offer ‘Intelligent’ Cyber Insurance in Canada

David Peterson and Tom Ridge partner to Offer ‘Intelligent’ Cyber Insurance in Canada

Canadian firms struggling to protect their assets and brands from the growing scourge of cyber attacks can now access bespoke cyber insurance solutions that can be tailored to meet the needs of small and large organizations. The Honourable David Peterson, Chairman of Cassels Brock & Blackwell, and, Governor Tom Ridge, the first U.S. Secretary of Homeland Security and former Governor of Pennsylvania, today announced the formal launch of Ridge Canada Cyber Solutions, Inc. (Ridge Canada), offering best-in-class informed cybersecurity assessments and bespoke cyber insurance products.  The packaged, customized assessment capabilities and insurance enable C-Suite executives to mitigate cyber risk, thereby closing a dangerous cyber insurance gap that often leaves companies – particularly small and mid-cap firms – vulnerable to the consequences of proliferating attacks.

“With destructive cyber attacks continuing to increase in both frequency and malicious intent, the c-suite understands how to protect against physical damage to its assets but still struggles with virtual damage, much to their peril,” said David Peterson. “That is why we have created customized insurance solutions that combine with our specific risk management and best-in-class pre-breach services. This ensures that companies and organizations create and maintain effective integrated cyber resiliency – managed to the highest level.”

Cyber crime is a growing problem that has cost businesses around the world more than $300 billion in the past 12 months, with North American businesses among the most heavily targeted. Boards of directors for financial services, retail, healthcare and energy companies, among others, will now have access to unique cyber insurance that leverages real intelligence that is sector and company specific, rejecting the ‘cookie-cutter’, process-oriented approach inherent in most cyber insurance offerings today.  Policies of up to$50 million are available beginning immediately.

“Cyber risk is different from other forms of risk, so you cannot purchase reliable insurance for this 21st Century risk in antiquated ways. Moreover, too many senior executives and risk officers are finding out that their existing cyber coverage is insufficient only after the chaos caused by a breach,” said Gov. Ridge, Chairman of Ridge Global.  “That is why we have created customized insurance solutions that we combine with segment-specific risk management.  Ridge Canada’s approach provides a better solution that not only provides more reliable coverage, but comprehensive services that may reduce the need to file a claim.”

The Ridge Canada comprehensive offering will drive organizations to better understand their risk, address deficiencies, obtain value from the cyber posture within their insurance coverage, and ensure that there are effective response services in the event of a breach. Lloyd’s of London supports this market-leading cyber insurance coverage, with insurance limits available up to $50 million. Three products that are broadly segmented around an organization’s size and cyber resilience priorities and tailored to the individual needs of the client.

ENTERPRISE PLUS:
Focused on large-cap organizations (private and public). A technology-focused underwriting process that will bring both cost savings, and rate flattening to large Canadian organizations.

ENTERPRISE:
Mid to large cap (private and public) solution. Hybrid or traditional underwriting options available.

PROFESSIONAL:
Typically organizations with revenues less than $50 million. Flexible, short-form application, and access to preferred vendors in regards to claims handling.

“These insurance products are a direct result of feedback from organizations both large and small,” said Greg Markell, Chief Executive Officer of Ridge Canada. “With expertise on both sides of the border, and a keen understanding of the Canadian market, these solutions will again provide organizations of all sizes insurance products for their cyber-needs. The value of Ridge Canada’s integrated service capability is that it can be offered to organizations with the specific goal of creating a tailored solution that fits.”

About Ridge Cyber Solutions Canada

Ridge Canada is a Canadian Managing General Insurance Agency incorporated to provide cyber insurance products and loss control services to Canada’s insurance agents and brokers. The company is headquartered in Toronto under the leadership of Greg Markell, Chief Executive Officer.  To learn more, visit www.ridgecanada.com.

About Ridge Global

Ridge Global was founded by Tom Ridge, the first U.S. Secretary of Homeland Security and 43rd Governor of Pennsylvania, to help organizations decrease security risks. He has assembled a team of globally recognized experts who offer clients strategic counsel on identifying, preparing for and mitigating cyber risk. Ridge Global offers the latest technology, is continually evaluating cyber security tool sets in order to make the latest technology available to clients and is recognized as an international thought-leader on cyber security. To learn more, visit www.ridgeglobal.com.

SOURCE Ridge Canada

Remember, legitimate telemarketers have nothing to hide

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Severe summer storm in Alberta & Saskatchewan causes close to $65 million in insured damage

Insurance Bureau of Canada (IBC) reports a severe storm that swept through Southern Alberta and Saskatchewan during the third week of July has resulted in nearly $65 million in insured damage according to Catastrophe Indices and Quantification Inc. (CatIQ).

From July 15 – 16, a low pressure system caused heavy rainfall, large hail, and localized flash flooding in parts of southern Alberta and southern Saskatchewan. This system caused significant hail damage in Lethbridge, AB and localized flooding in Calgary, AB and Arbour Lake, AB. This storm also brought over 60mm of rain to Swift Current, SK in less than one hour.

“This is yet another example of severe weather events causing extensive damage in our region,” said Bill Adams, Vice-President, Western and Pacific, IBC. “This has been an active summer across the Prairies and it reinforces the need for Canadians to understand their insurance policies and to have an emergency preparedness plan for when bad weather strikes.”

Most damage was reported to have occurred in Alberta. Damage to homes and autos in that province, largely due to hail, resulted in upwards of $59 million in claims alone. This storm follows a previous system that hit the Prairies a week earlier which resulted in more than $48 million in insured damage.

About Insurance Bureau of Canada
Insurance Bureau of Canada (IBC) is the national industry association representing Canada’s private home, auto and business insurers. Its member companies make up 90% of the property and casualty (P&C) insurance market in Canada. For more than 50 years, IBC has worked with governments across the country to help make affordable home, auto and business insurance available for all Canadians. IBC supports the vision of consumers and governments trusting, valuing and supporting the private P&C insurance industry. It champions key issues and helps educate consumers on how best to protect their homes, cars, businesses and properties.

P&C insurance touches the lives of nearly every Canadian and plays a critical role in keeping businesses safe and the Canadian economy strong. It employs more than 120,000 Canadians, pays $8.2 billion in taxes and has a total premium base of $49 billion.

For media releases and more information, visit IBC’s Media Centre at www.ibc.ca.. If you have a question about home, auto or business insurance, contact IBC’s Consumer Information Centre at 1-844-2ask-IBC.

About CatIQ
Catastrophe Indices and Quantification Inc. (CatIQ) delivers detailed analytical and meteorological information on Canadian natural and man-made catastrophes. Through its online subscription-based platform, CatIQ combines comprehensive insured loss indices and other related information to better serve the needs of the insurance and reinsurance industries, public sector and other stakeholders. To learn more, visit www.catiq.com.

If you require more information, IBC spokespeople are available to discuss the details in this media release.

SOURCE Insurance Bureau of Canada

$65,000 Non-Pecuniary Assessment for “Persistent Myofascial Pain”

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 damages for a chronic back injury.

In today’s case (Cirillo v. Mai) the Plaintiff was involved in a 2012 collision where her vehicle was struck and pushed into oncoming traffic where she was struck a second time.  The Plaintiff suffered a chronic back injury with symptoms continuing at the time of trial and expected to likely persist into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Hinkson provided the following reasons:

[41]     Dr. Khalfan commented in her report of April 20, 2016 that:

a)       The plaintiff’s diagnosis at that time was persistent myofascial pain as a result of the Collision.

b)       The plaintiff’s range of motion in her spine was good, other than her spinal extension, which demonstrated significant impairments.

c)       The plaintiff had first received trigger point injection treatment on January 26, 2016. Other than experiencing some short-term flare-ups in pain for after treatment, the plaintiff responded well to the injections, and reported 50% improvement in her pain by the fifth treatment.

d)       By the sixth trigger point injection on April 12, 2016, the plaintiff had plateaued with that treatment, and decided to pursue ultrasound-guided injection treatment, which would require a series of diagnostic tests.

e)       Because the plaintiff responded well to trigger point injections, Dr. Khalfan was optimistic that the plaintiff would continue to experience improvement with ultrasound-guided injection treatment. Dr. Khalfan expected that the plaintiff would experience appreciable improvement of her symptoms in the future, but was unable to predict with precision the degree to which the plaintiff would recover.

f)        Given the fact that the plaintiff has experienced pain for years after the Collision, it is unlikely that she will experience full recovery of all symptoms. Dr. Khalfan opined that it was likely that the plaintiff would have ongoing pain well into the future and possibly indefinitely.

g)       Dr. Khalfan recommended a focused strengthening and stabilizing exercise program as a possible management tool for mitigating the plaintiff’s limitations and pain…

[92]         The authorities relied upon by the plaintiff are all cases where the injured parties suffered from chronic pain. Although I accept that Ms. Cirillo continues to experience back pain, I am unable to accept that it rises to the level of chronic pain as that term is used in the cases that she relies upon. While she may experience the improvement in her pain that is hoped for by Dr. Khalfan, I do not regard that as likely. I consider that the injuries and ongoing difficulties that she experiences are more consistent with the difficulties described in the awards cited by the defendant, with the exception of the loss of her ability to participate in the sport that she pursued with such devotion and considerable success before the Collisions.

[93]          As I have already found, it is unlikely that she would have been able to continue with her level of activity in the sport for much longer than she did, but the choice to do so was taken from her by her injuries from the Collisions, and this, in my view, elevates her damages from the range that can be derived from the cases relied upon by the defendant. I therefore assess her non-pecuniary damages at $65,000.

$85,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

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

Adding to this site’s soft tissue injury non-pecuniary damage database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries with associated headaches.

In this week’s case (Picton v. Fredericks) the Plaintiff was involved in a 2008 vehicle collision that the Defendant admitted responsibility for.  The Plaintiff suffered various injuries which were ongoing at the time of trial and expected to linger into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Williams made the following findings:

[37]         I conclude that Ms. Picton did sustain injuries in the course of the motor vehicle accident and that substantial discomfort has persisted for her. I am not minded to accept that all of the discomfort and all of the lost time is attributable to the accident. I also conclude that, while there was not insignificant discomfort, its effect upon her ability to do her usual activities and to engage in physical activities was significant but not to the extent she seemed to suggest. For example, I am inclined to accept that, from time to time, she engaged in activities such as golfing and snowboarding. I also believe that she continued to pursue her fitness regime, although in a somewhat diminished way.

[38]         I am satisfied that Ms. Picton sustained soft tissue injuries in the accident, resulting in neck, shoulder, and back pain and headaches. The neck, shoulder, and back pain have not resolved but continue, albeit less intensely. I am satisfied that she continues to deal with headaches; the frequency may not be as great as she contends, but I accept that she does occasionally experience very significant discomfort from those headaches. I also accept the evidence before me that the Botox treatments she receives are substantially effective in enabling her to deal with the discomfort of those headaches…

[51]         In summary, I conclude that Ms. Picton has suffered pain and discomfort from the accident, that it has impacted upon various aspects of her life, and that those effects continue. I am also satisfied that the ongoing Botox treatment is a meaningful contributor to mitigating the discomfort she experiences. I accept that the effects of the accident impacted upon her work and social life.

[52]         That said, I also recognize that there were other factors at play, including the psychological distress that she has experienced separate and apart from the accident. I find no basis to attribute that to the defendant’s conduct, and, accordingly, the effect of that cannot be included in the analysis of what award of damages will properly compensate the plaintiff for her pain, suffering, and loss of enjoyment of life as resulting from the defendant’s negligence…

[58]         As stated above, my conclusion is that the injuries resulting from the accident had a moderately serious impact upon Ms. Picton’s life. She has experienced pain and suffering, and her enjoyment of life has been compromised in a number of ways. I also conclude that the effects of the collision are not the sole cause for her difficulties; her pre-existing psychological problems have had a real role in causing those. Ms. Picton’s situation is in keeping with the “crumbling skull” rule as noted in Athey v. Leonati, [1996] 3 SCR 458, at paras. 34–35. The damages that this Court awards must reflect that distinction. The defendant should not be required to compensate Ms. Picton for effects she would have experienced anyway.

[59]         As well, my award is informed by my view that she has, fortunately, by availing herself of the Botox treatment program, been able to find a way to substantially overcome the discomfort of headache. I intend to provide an award of damages for her future care that will provide for that relief, going forward. Accordingly, I expect that her discomfort will be quite significantly relieved.

[60]         In the result, I find that a fit and appropriate award of damages under this head is $85,000.

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