“Meagre” Plaintiff Income Keeps Court From Awarding Costs to Successful Defendant

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.

In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages.  The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result.  At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries.  Prior to trial ICBC offered to settle the case for $150,000.

The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself.  In the end the court ordered that each party bear their own costs of the trial.  In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.

In reaching this decision Mr. Justice Affleck provided the following reasons:

[12]        The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.

[13]        The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.

[14]        When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.

[15]        The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.

[16]        My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.

Desjardins introduces new flood coverage for Canadians

Thanks to new flood coverage—Endorsement 16d in insurance jargon—customers of Desjardins (Desjardins Insurance, The Personal and State Farm Canada) who live in low-risk areas will automatically be covered, at no charge, for damage caused by an overflowing waterway or dam break, for instance. And, with an additional premium, clients living in medium-risk areas can also take advantage of the new coverage.

95% of Desjardins policyholders can benefit from flood coverage:

  • 80% insure properties in low-risk areas
  • 15% insure properties in medium-risk areas

Desjardins is committed to developing products and services that offer peace of mind and meet the current and future needs of their clients. “We listened to our customers and designed this coverage with them in mind. We want to help people avoid unpleasant surprises because dealing with water damage is already difficult enough,” says Denis Dubois, President and Chief Operating Officer of Desjardins General Insurance Group.

“Our flood coverage has fewer exclusions than the protections offered by the majority of our competitors. It’s free for most clients and remains optional for policyholders who would have to pay for it. This gives clients the flexibility to adapt their coverage to suit their needs and their reality,” adds Dubois.

Did you know?
Home insurance policies cover accidental water damage, such as a burst water pipe, leaking dishwasher or overflowing bathtub. This basic coverage can be enhanced with other optional coverage, including:

  • Ground water and sewer back-up (Endorsement 16c) – Because of climate change, heavy rain events are becoming increasingly frequent, causing sewers to back up or water to pool around houses and seep in through the foundations. At Desjardins, 85% of clients have this endorsement on their home insurance policies.
  • Above ground water (Endorsement 42) – 90% of Desjardins clients have this endorsement, which covers damage caused by water seeping in through the roof, for instance.

The flood endorsement (16d) launched today completes the range of optional coverage already offered by Desjardins.

Higher-risk areas
A minority of Canadians live in areas with a higher risk of flooding. As it stands, they still don’t have access to appropriate insurance coverage.

“We’re continuing to work with the industry and the federal government to help make it easier for all Canadians living in high-risk areas to get insurance and minimize the number of homes without adequate coverage,” says Dubois.

About Desjardins General Insurance Group
A subsidiary of Desjardins Group, Desjardins General Insurance Group (DGIG) is Canada’s third largest provider of property and casualty insurance. The company distributes insurance under the Desjardins Insurance, The Personal, and State Farm Canada brands. DGIG is also a leader in Canada in white label distribution.

 

SOURCE Desjardins Groupe d’assurances générales

Garage owner gets chance to fight liability for teen hurt in stolen car crash

By Colin Perkel

THE CANADIAN PRESS

TORONTO _ A garage owner will get a chance to argue before the Supreme Court of Canada that he should not be held responsible for the terrible injuries a teen suffered when he and a friend stole a car from the lot and crashed it.

Canada’s top court agreed last week to hear the highly unusual case in which the injured teen successfully sued the garage for leaving the car unlocked and its keys in the ashtray.

Court records show the teens had been drinking and smoking marijuana when they trespassed on Chad Rankin’s property in Paisley, Ont., late on an evening in July 2006. One of the teens, then 16, decided to steal a Toyota Camry even though he had never driven before.

The duo headed to Walkerton but never made it. The passenger, who can only be identified as J.J., was left with catastrophic brain injuries in the ensuing crash. J.J., then 15, sued his friend and his friend’s mother as well as Rankin for negligence.

Superior Court Justice Johanne Morissette determined Rankin owed J.J. a duty of care because, among other things, people entrusted with motor vehicles “must assure themselves that the youth in their community are not able to take possession of such dangerous objects.”

The jury then found the injured teen and the defendants negligent, but laid the bulk of the blame 37 per cent on the garage owner. In doing so, jurors cited the fact that the car was unlocked, the key was in the vehicle, and that Rankin should have known there was a risk of theft. They also faulted him for the overall lack of security.

Last October, Ontario’s Court of Appeal refused to overturn the trial verdict, saying that Rankin did indeed owe J.J. a duty of care _ although not for the reasons Morissette had stated. It also found the jury’s findings reasonable.

“On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from him seems extravagant, but matters are not so simple,” Appeal Court Justice Grant Huscroft wrote for the panel. “It is well established that the duty of care operates independently of the illegal or immoral conduct of an injured party.”

In this novel case, the Appeal Court found ample evidence supported the conclusion of “foreseeability” that a car might be stolen.

Trial witnesses, the court noted, testified that Rankin’s Garage routinely left cars unlocked with the keys inside, while other garages used lock-boxes or took other measures to secure the keys. Rankin himself testified that the witnesses had lied, saying he kept keys in a safe, and checked every night that vehicles were locked.

In addition, evidence was that the garage took no measures to keep people off the property when it was closed, there had been a previous auto theft from the lot, and joyriding in the area was common.

“The risk of theft was clear,” Huscroft wrote. “It was foreseeable that minors might take a car from Rankin’s Garage that was made easily available to them.”

Rankin, Huscroft found, had abrogated his responsibility for securing the cars against theft by minors like J.J. and while a different jury might have parcelled out the blame differently, its conclusions were not unreasonable. The court also ordered Rankin to pay J.J. $30,000 in legal costs.

It’s not clear when the Supreme Court will hear the case.

Alberta insurance broker accused of defrauding $540K from employer

LETHBRIDGE, Alta. — A former insurance broker in southern Alberta has been charged with defrauding his employer of more than $540,000 over a period of almost nine years.

Police in Lethbridge say an investigation began last October after an employee at Schwartz Reliance noted discrepancies in accounts managed by one of the partners.

Investigators allege that between January 2008 and last September someone created fake accounts and altered existing accounts to generate higher commissions for personal gain.

Police say no clients suffered any losses.

Stephan James Evanson, who is 36 and from Stirling, Alta., is charged with fraud over $5,000 and money laundering.

He has been released from custody and is to appear in court on March 27.

AXA Global Parametrics: insurance, simplified.

Today, we live in a digital age, with access to large amounts of data on virtually anything, anywhere. Through satellite images, for example, we have access to vast climate and vegetation data worldwide. Through connected objects, we are gathering statistics and trends in real-time. What does this data offer to insurers and their customers? Interestingly, thanks to today’s sophisticated data processing methods, in the end, any exposure that can be measured, can be insured.

Global Parametrics’ aim is to provide its customers with a seamless experience through a “parametric” approach. The method is very simple: based on an independent parameter that is correlated to the client’s losses, the insurance product is built and claims payments are triggered automatically if an agreed-upon threshold is reached.

For example, say a wind farm wishes for a cover against lack of wind causing a decrease in energy production – in case of a wind speed deviation of 10% below the 5-year average, for example, the payment is made automatically.

The possibilities are endless: once both parties agree on a reference parameter, we can imagine automatic covers when any type of unusual event occurs. A farmer’s yield can be insured, for example, as can a passenger’s transportation delay.

AXA already offers parametric insurance in 28 countries across the globe, covering diverse risks for numerous industries, mainly focused on large corporations and the public sector. For example, AXA covers solar panel farms in China against lack of sun causing a decrease in energy production. Additionally, in Ethiopia, AXA protects several tens of thousands of farmers against drought risks.

AXA Global Parametrics: a new entity expanding to SMEs and individuals

Through this dedicated subsidiary that acts as the AXA Group’s center of excellence and that is already recognized for its expertise and innovative insurance products, AXA Global Parametrics hopes to cover more risks, and more clients, worldwide.

Claims: Is my nephew committing insurance fraud?

Claims: Is my nephew committing insurance fraud?

BY JASON TCHIR | The Globe and Mail

My nephew had his car broken into and he lied and claimed he’d had a brand-new MacBook in it. He doesn’t think it’s wrong since insurance companies charge so much and make a lot of money. This is fraud, right? I’m trying to scare him. Dan, Toronto

Insurance fraud is, well, fraud – but for some, it’s considered a matter of just getting back a small chunk of what you’ve been pouring in for years, a researcher said.

“People think of insurance policies as a savings account – the more they’ve paid in, the more entitled they feel to take something back,” said Dr. Yoel Inbar, assistant professor of psychology at the University of Toronto. “If you’ve never filed a claim, it almost feels like you’re getting a bad deal.”

In several studies involving about 1,000 people in the United States and the Netherlands (“there’s no reason to believe this isn’t true for Canada”), Inbar found that people rationalized acts of fraud such as getting the body shop to fix existing damage along with claim-covered accident damage.

They didn’t see it as stealing, he said.

“People don’t understand how insurance works – they think it’s a big faceless corporation and it will come out of their profits,” Inbar said. “So they don’t realize that what it actually does is make it more expensive for everybody.”

The Financial Services Commission of Ontario (FSCO) referred to Inbar’s research when it released an Ipsos survey of 1,052 Ontarians.

In that survey, about 10 per cent said they had submitted an exaggerated or false claim.

Plus, 35 per cent said they didn’t know that defrauding an insurance company is an offence under the Criminal Code of Canada – and 25 per cent said they didn’t know auto insurance fraud affects auto insurance premiums.

“People don’t understand the basic idea of risk pooling,” Inbar said. “If we ask people to describe what auto insurance is, they say, ‘You pay into to it so eventually you can take something out.’ ”

Inbar said “a small minority said what an economist will tell you: that it’s a mechanism for risk hedging.”

In 2010, KPMG estimated that insurance fraud cost companies $768-million to $1.56-billion.

That same year, Ontario reduced benefits paid out to people injured in accidents – and it saved insurance companies $2-billion.

In 2015, the Ontario Trial Lawyers Association released a report by two York University professors showing that Ontario insurance companies made big profits – as much as an 18.5 per cent return on equity.

What if you get caught committing insurance fraud? The claim could get denied, your insurance policy could be cancelled and, if it’s more than $5,000 and you’re convicted, you could get up to 14 years in prison.

Less than $5,000? Up to two years.

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from ILSTV

You have Successfully Subscribed!

Pin It on Pinterest