ICBC Ordered to Pay $350,000 in Punitive Damages for False Fraud Allegation

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, ordering ICBC to pay $350,000 in punitive damages for malicious prosecution following assertions that the Plaintiff acted fraudulently following a pedestrian collision.

In today’s case (Arsenovski v. Bodin) the Plaintiff was walking with her husband when he was struck by a vehicle.  The Plaintiff was not struck by the vehicle but did fall down and suffer some modest injuries during the incident and she reported this to ICBC.  Specifically she told ICBC that “the last thing I remember was stepping off the curb to cross the street.   I don’t know how far we had walked on the street.  The next thing I remember was being on the pavement“.

ICBC, through a Special Investigations Unit officer employed with them,  requested that Crown Counsel prosecute the Plaintiff for fraud as she was not struck by the vehicle.  Charges for making a false statement to ICBC were approved.

The problem is the statement was not false.  The charges were stayed on the day of the start of the criminal trial.

The Plaintiff sued ICBC for malicious prosecution and succeeded with Madam Justice Griffin finding that ICBC’s false fraud allegations and actions were “so high-handed,  reprehensible and malicious that it offends this Court’s sense of decency“.  In finding $350,000 in punitive damages were appropriate the Court provided the following reasons:

Labour Minister Christina Gray says concerns to be addressed in review of labour laws

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Leading Reinsurers Line Up for Lemonade, the P2P Insurer

By Andrew G. Simpson

Lemonade, the startup peer-to-peer insurance carrier that has raised $13 million in initial funding, announced a line-up of  global reinsurance partners, including Berkshire Hathaway and leading Lloyd’s of London syndicates.

Lemonade set records with its initial funding by Sequoia and Aleph, followed by its announcement that four senior insurance executives from ACE and American International Group (AIG) had joined its ranks.

Daniel Schreiber, CEO and co-founder of the P2P insurer, said that with Berkshire Hathaway’s National Indemnity and Lloyd’s of London backing Lemonade, the stage is now set for Lemonade’s consumer launch in the coming months.

“For insurance to provide true peace of mind you want to know your insurer is both willing and able to pay your claims,” said Schreiber. “Lemonade is the only insurer that doesn’t make money by denying claims – so no one is more willing than us.  With the backing of the world’s foremost reinsurance names, no one is more able either.”

In addition to Berkshire Hathaway’s National Indemnity, the P2P insurer said its reinsurance line-up includes Everest, Hiscox, Munich, Transatlantic and XL Catlin.

Read more here:: Insurance Journal

$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.

In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision.  The Defendant admitted fault.  The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman.  In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:

[30]         The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.

[31]         Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.

[32]         Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.

[33]         Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…

[35]         It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…

[44]         The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.

[45]         Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.

[46]         Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.

[47]         An appropriate award for non-pecuniary damages in this case is $110,000.

$1 billion insured losses in California fires

By Janie Har


SAN FRANCISCO _ Damage from two destructive Northern California wildfires that killed six and sent thousands fleeing their homes topped $1 billion in insured losses, according to a preliminary estimate by the state’s insurance department.

The two fires started days apart in September, burning more than 200 square miles of remote, mountainous territory north and northeast of San Francisco.

The preliminary figure announced Monday includes $700 million from a fire centred largely in Lake County that killed four and destroyed nearly 2,000 structures, including some 1,300 homes. The so-called Valley Fire is the third most destructive wildfire in state history, based on the number of structures lost, and the fifth-costliest based on insured losses.

Another fire in Amador and Calaveras counties caused an estimated $300 million in insured losses. That fire killed two people and destroyed more than 800 buildings, making it the seventh-most destructive wildfire to hit the state.

“A year-round fire season is California’s new reality,” said Insurance Commissioner Dave Jones in a statement. “Residents and communities, especially those in high-risk fire areas, must take precautions now before the next devastating wildfire strikes.”

This is the first damage estimate from the California Department of Insurance for the fires, compiled from insurance claims filed through December. A final figure is months away.

Insurers report they have received 5,600 claims for commercial and residential properties, vehicles and other items. Lake County residents have filed the bulk of claims.

Lake County Supervisor Jim Comstock said $1 billion sounds right.

“I’m not at all surprised because this Valley Fire sought out property with structures on it to burn, it seemed like,” he said. As for Lake County’s place in wildfire history, he said, “It’s an infamy, unfortunately.”

The $1 billion does not include uninsured losses nor does it include damage to public roads and utilities.

For that, global insurance company Aon Benfield estimated last year that the two fires did nearly $2 billion in economic damage, including business interruption. About $1.5 billion of that was in Lake County alone.

Aon reported insured losses for the two fires topped $1.2 billion, including $975 million in Lake County. That’s within ballpark range of the state’s figures, said Aon associate director Steve Bowen.

“These two fires by themselves were two of the costliest in the state of California since 2007,” he said. “We’re talking about a once-in-a-decade type of event in the losses alone.”

Bowen said the fire in Lake County is the fifth costliest wildfire in state and U.S. history in terms of insured losses.

The costliest remains the Oakland Hills Fire of 1991, with damage covered by insurance costing $2.9 billion when adjusted for inflation. The second costliest is a 2007 wildfire in San Diego County that caused about $1.8 billion in damage covered by insurance.

The cause of both Northern California fires remains under investigation.


As Cdn’s gain weight, London paramedics invest in $30k power stretchers to avoid back injuries

By Jonathan Sher, Postmedia Network

With the fattening of Canadians costing London paramedics perhaps more than $100,000 a year for work lost to back injury, the local EMS has replaced all stretchers with powered models that lift up to 700 pounds.

The powered stretchers cost nearly $30,000 each, more than $1 million for 35, but paramedics say it’s a wise buy that will save backs, knees and the cost of filling in for those too hobbled to work.

“It will definitely decrease injuries and decrease long-term disability claims,” Jay Loosley, a superintendent at Middlesex London EMS, said Tuesday.

In what public health officials are calling the obesity epidemic, the population continues to gain weight

As recently as the 1980s, paramedics had to show they could lift a maximum of 165 pounds. But now, 10 per cent of Canadian men weight at least 228 pounds, EMS director Neil Roberts wrote when he asked Middlesex County council for funding.

“In what public health officials are calling the obesity epidemic, the population continues to gain weight,” Roberts wrote.

Back injuries last year accounted for nearly half of workplace insurance claims at the local EMS at a cost of $160,000. That doesn’t include the expense of modifying responsibilities when paramedics return to work.

So, rather than phase out the manual stretchers, as many EMS services have done, paramedics decided to replace all 35 at once — a move that may be the first-ever in Ontario.

“I’m not aware of any services that have done it all at once,” Loosley said.

With manual stretchers, paramedics raised and lowered the legs of the stretcher repeatedly to get patients on and off of ambulances, all while bearing the weight while one squeezed a lever to release the legs. That left paramedics lifting each patient five times, about 4,500 pounds lifted each day with just three trips to hospital.

The powered stretchers support up to 700 pounds and have legs that each go up or down with the touch of a button — prompting this slogan by the Ohio-based manufacturer Ferno: “Navigate obstacles with your thumb, not your back.”

Paramedics need only to lift patients onto the stretcher at the scene and take them off at hospital.

“(Paramedics) are really happy about their knees and backs,” Loosley said.

Paramedics also can also manoeuvre the powered stretchers over curbs and onto landings. Patients benefit too, Loosley said, because the new stretchers provide more support and cushioning.

“It’s a more comfortable and secure ride,” he said.

The manual stretchers, some as old as 20 years, were sold, while the new models arrived late last year, with training on how best to use them continuing this week.

The county council backed the purchase of the most expensive of three models but only after paramedics test drove each, finding that only one model — the Ferno iN/X — had everything needed. Two other models would needed additional technology and equipment to be bought separately. The county manages the EMS that also serves London.

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