Flood advisory issued for most of western Washington

The National Weather Service office in Seattle has issued an urban- and small-stream flood advisory for 14 counties throughout western Washington. Nearly 2 inches of rain has fallen across much of the area in the past 24 hours, with another 1-2 inches expected today.

Affected counties include:

CLALLAM COUNTY
ISLAND COUNTY
JEFFERSON COUNTY
SAN JUAN COUNTY
SKAGIT COUNTY
WHATCOM COUNTY
KING COUNTY
KITSAP COUNTY
LEWIS COUNTY
MASON COUNTY
PIERCE COUNTY
SNOHOMISH COUNTY
THURSTON COUNTY
GRAYS HARBOR COUNTY

Minor flooding is expected in urban areas and small streams into this evening, according to the NWS. The flood advisory has been extended to 6:30 p.m. today.

Restricting Summary Judgment

Are courts beginning to restrict the use of summary judgment?

Justice Brown took the opportunity to comment on summary judgment in a decision encompassing two cases, George Weston Limited v. Domtar Inc and 1318214 Ontario Limited v. Sobeys Capital Inc., 2012 ONSC 5001 (S.C.J.).  These were two cases from the Commerical List in Toronto where counsel sought to schedule summary judgment motions.  In George Weston, the plaintiff sought to schedule a summary judgment motion prior to examinations for discovery.  In 1318214 Ontario, discoveries were mostly complete and when the plaintiff sought to set the matter down for trial, the defendant advised it intended to bring a motion for partial summary judgment to limit the issues for trial.

Justice Brown laments the motion culture in Toronto and what he sees as a reluctance of counsel, especially counsel who have practiced for less than 15 years, to bring cases to trial.  He suggests that instead of bringing summary judgment motions, counsel should take more cases to trial and that courts should facilitate the process by approving innovative ways of proceeding to trial; for example, evidence could be a hybrid of written and viva voce evidence.

It will be interesting to see if other judges share Justice Brown's concerns and if courts will start restricting the use of summary judgment motions.  Defence counsel and insurers will need to carefully assess each case to determine whether the appropriate way is to proceed by way of summary judgment or whether it might be more beneficial to simply proceed to trial. 

Market Conduct Examiner position extended to Nov. 13

Please help us spread the word - We're currently hiring for a Market Conduct Examiner. Sound interesting? This person will work under our Chief Market Conduct Examiner or Lead Examiner Analyst, analyzing, reviewing and identifying the market conduct practices of health insurance companies and other regulated entities that could harm consumers.

This job posting is open until Nov. 13, so if you know someone who may be interested and who's up to the challenge, please tell them soon! See the salary, specific duties and other qualifications.

Arraignment for Spokane man who claimed repo-ed truck was stolen

Andrew James Petrie, 28, was arraigned today in Spokane County Superior Court for claiming that his truck had been stolen when in reality it had been repossessed.

He faces one count of first-degree attempted theft and one count of insurance fraud.

In what state am I most likely to hit a deer?

Each year, State Farm compiles a list of deer-vehicle collisions and creates a list of states in which you're most likely to hit a deer.

West Virginia has topped the list for six years in a row, with other particularly dangerous states being virtually all of the northern Midwestern states and the mid-Atlantic states. South Dakota's No. 2, and Iowa's No. 3.

Washington, it turns out, is one of the lowest-risk states, coming in at No. 43 this year. Your odds of hitting a deer in the Evergreen State are a mere 1 in 477, according to State Farm's estimates.

The company estimates that there are about 10,700 collisons with deer in Washington state each year. (Compare that with, say, Pennsylvania's 115,000.)

Oregon is No. 37 on the list, and Idaho's 33.

Arizona, perhaps not surprisingly, is the stae in which you're least likely to run into a deer. Armadillos, however, were not part of the study.

Here's the full list.

Second Independent Medical Examination - Evidence

What evidence is necessary on a motion to compel the plaintiff to attend a second independent medical examination?

In Nasir v. Kochmanski, 2012 ONSC 4088 (S.C.J.), the plaintiff was a minor who was injured in a motor vehicle accident.  The claim alleged the plaintiff was struck while a pedestrian and sustained a head injury and various psychological impairments.  He had been assessed by a number of medical doctors and psychologists, both treating and arranged by plaintiff`s counsel.  He had been assessed by a paediatric neurologist on behalf of the defendant, although no report had been prepared.  The defendant sought to have the plaintiff assessed by a psychologist.  The proposed assessor wrote a letter to defence counsel outlining the assessment, its length, information she would require from the plaintiff`s parents, and test results from other assessments she required.

Justice Daley permitted the assessment.  The proposed assessment was outside the scope of expertise of the neurologist, according to the psychologist`s letter.  There was no evidence the assessment would delay trial or prejudice the plaintiff.  Since the plaintiff was very young, his evidence would be of limited evidentiary value, and the most probative and reliable evidence would have to come from experts.  Trial fairness favoured the second examination.

It should be noted that the evidence in support of the motion appears to come from a letter from the proposed assessor.  Justice Daley stated that it would have been preferable to have an affidavit or report from the neurologist outlining the need for a further examination, but accepted that there was enough evidence to support the motion.  There is some inconsistency in the case law as to the form of evidence needed on a motion for a further examination, and counsel should carefully consider whether it would be beneficial to have affidavit evidence. 

  

Kreidler fines insurer $500,000

Washington state Insurance Commissioner Mike Kreidler is fining Ohio-based BCS Insurance Company $500,000 for issuing hundreds of thousands of policies using unapproved rates and policy language.


“A fair insurance market depends on companies playing by the rules,” said Kreidler. “When an insurer files rates and policy language with us, that’s what we expect them to use.”

BCS Insurance has agreed to pay the fine. An additional $250,000 fine is suspended, provided the company commits no similar violations for two years. The company has also agreed to a two-year plan, including internal audits, to make sure the company is in compliance with Washington state law.

An investigation by Kreidler’s office found that between 2007 and 2009, BCS issued over 500,000 travel insurance policies that were different from the policy language filed with the state. Rates for identical benefits were inconsistent, depending on who the customer was.

How much of my driving record can an insurer use?

We get this question all the time.

The answer's found in a section of state law called WAC 284-30-500(3). (WAC stands for Washington Administrative Code.) Here's the key section, with some highlighting we added:

(3) It is an unfair practice for any insurer to consider traffic violations or accidents which occurred more than three years in the past, with respect to the acceptance, rejection, cancellation or nonrenewal of any insured under a private passenger automobile insurance policy, unless, because of the individual's violations, accidents or driving record during the three years immediately past, the earlier violations or accidents are significantly relevant to the individual's qualifications for insurance.

So insurers generally cannot use the older data as a basis to reject/cancel/non-renew you, but there is no prohibition against using the older data to assess risk and rate -- meaning set the cost of -- your auto policy.

Even if you have a problem driving record, it's always a good idea to shop around for alternative rates, since insurers don't all charge the same rate for the same level of coverage.

Catastrophic Impairment: Aviva v. Pastore

The Court of Appeal has released an important decision relating to catastrophic impairment:

Aviva Canada Inc. v. Pastore, 2012 ONCA 642 (C.A.)

The insured was injured in a 2002 motor vehicle accident as a pedestrian and sustained an ankle injury. She alleged her gait had been altered and was diagnosed with a pain disorder.  A DAC found her to be catastrophically impaired in 2005 due to a marked mental or behavioural impairment under s. 2(1.1)(g) of the SABS.  An assessment under s. 2(1.1)(g) is carried out with reference to the AMA Guides, which provide for an assessment of function in four categories:

(1)              Activities of daily living (ADL);

(2)              Social functioning;

(3)              Concentration, persistence and pace; and

(4)              Deterioration or decompensation in work or work-like settings.

Pastore was diagnosed with a number of psychological disorders and the DAC concluded that she had a class 4 marked impairment in activities of daily living.  The DAC concluded she was catastrophically impaired on the basis of the one class 4 impairment.  The insurer did not agree with the assessment and the matter proceeded to mediation then arbitration.

At arbitration, the arbitrator agreed with the DAC assessors and held that one marked impairment was enough to comply with the Guides approach to impairment.  In addition, it was appropriate to consider physical pain in assessing mental disorder, as it was not possible to factor out all physically based pain since it was intertwined with mentally based pain. The Director's Delegate upheld the decision, but the Divisional Court overturned the arbitrator.

The Court of Appeal allowed the appeal and reinstated the arbitrator`s decision.  The conclusion that only one marked impairment is sufficient to meet the definition of catastrophic impairment was a reasonable one. In addition, it was not an error for the DAC assessors to consider both physical and mental pain.

Pastore appears to have lowered the bar for catastrophic impairment based on a mental disorder and more claimants may be able to fit themselves into a catastrophic designation than prior to this decision.

Here come the rains

After an unusually dry early fall, western Washington's long rainy season begins in earnest this weekend, when the first of a series of wet weather systems moves into the Pacific Northwest.

Weather Underground reports that:

A front bringing heavier rain will arrive late Saturday... with significant precipitation continuing Sunday and Monday.

Rainfall amounts during the period from Saturday afternoon through Monday evening will likely be around 3 to 8 inches in the mountains... with the heaviest precipitation over the Olympics and north Cascades. The snow level will be mainly around 10000 feet.

Rainfall over the western Washington lowlands will probably range from 2 to 4 inches along the coast and 1 to 2 inches over the interior lowlands.

Because of the long dry spell, forecasters say, flooding is unlikely. But rivers are expected to rise sharply.

Drivers should also be extra cautious. During dry weather, oil that has dripped off cars and trucks onto roadways doesn't have a chance to be washed away. The rains will spread that oil, making roads extra-slick for the first couple days of rain.

Guilty plea in insurance fraud case over "stolen" bicycles

A Pierce County man pleaded guilty today to two counts of forgery after falsely claiming that two bicycles worth $17,000 were stolen from his garage.

John L. Southerly, of Fox Island, was sentenced in Pierce County Superior Court to 45 days of electronic home monitoring and $800 in fees.

In May 2011, Southerly told his insurance company that two Specialized Epic bicycles and accessories had been stolen. He filed a police report with a Pierce County sheriff's deputy, saying that he'd left his garage door open and discovered that the two bikes, valued at $17,562, were gone.

Southerly told his insurer, Travelers Indemnity Co., that he'd bought both bikes from an Arizona company. When Travelers asked for copies of his receipts, Southerly sent an email that was purportedly from the bike company. The bike company email came from a Gmail account. Attached was an invoice for each bike. Southerly later also filed a sworn statement of proof of loss for the bikes.

Travelers sent an investigator to talk to the bike shop owner and try to verify that the invoices were authentic. No, the owner said, pointing out discrepancies.

Then, last June, Travelers received an email from a different Gmail address.

"This is Detective Harris," it began. "I work out of the Tacoma office. I am trying to follow up on a case that involves Mr. Southerly..."

The email didn't contain contact information for this "Detective Harris," or even specify which law enforcement agency the detective supposedly worked for.

Travelers denied Southerly's claim and turned the case over to the state insurance commissioner's Special Investigations Unit. It quickly determined that there was no "Detective Harris" working for the Pierce County Sheriff's Office, the Tacoma Police Department or the Lakewood Police Department.

With search warrants, the Special Investigations Unit determined that both Gmail accounts listed Southerly's real email as a secondary contact and were sent from Southerly's IP address.

Southerly, who did not show up for a scheduled court appearance earlier this year, was arrested in August while leaving a gym after a workout.

Got an old Medicare supplement plan? You might save money by switching to a newer plan

Consumers who are on Medicare Supplement plans may be able to save money – and possibly increase their coverage – by moving to Medicare Supplement plans that insurance companies issued after June 1, 2010.
As a result of a change in federal law, many Medicare Supplement companies issued new plans that started on that date. Many of the plans issued after that date use the same Medicare Supplement letter as plans issued prior to June 1, 2010. But the coverage often costs less, and is sometimes more comprehensive, than a same-lettered plan issued prior to that date. As a result, in some situations, you might be able to get more for your money by switching plans.
For example: a Plan G issued after June 1, 2010 may cost less and provide more comprehensive coverage than a pre-June 1, 2010 Plan G.
So if you’re on a Med Supp plan that you bought before that date, you might want to check the prices of newer Med Supp plans to see if it would be worthwhile to switch.

Note: Headline -- we'd accidentally typed "Medicaid" rather than "Medicare," has been corrected.

Motion to Add Municipal Defendant Dismissed

A motion to add a municipality as a defendant was recently dismissed.

In Temporin v. DiVincenzo, 2012 ONSC 5213 (S.C.J.), the plaintiff was injured in a 2007 motor vehicle accident. Although the City of Burlington had been named as a third party, the plaintiff did not move to add it as a defendant until 2012. The plaintiff ordered the police report in 2007, but did not receive officer's notes as counsel had inadvertently neglected to send payment.  The notes were ultimately received in 2010 when a follow up request was made.  They referred to road conditions consisting of "fierce" black ice. The plaintiff argued that the two year limitation period for adding the municipality began in 2010.

Parayeski J. dismissed the motion. The failure to follow up for police notes until 2010 did not give rise to a discoverability issue. The plaintiff had not exercised reasonable diligence and even though there was no prejudice to the municipality, this did not justify it being added as a defendant post-limitation.

This decision is a good example of the maxim that limitation periods are not enacted to be ignored.  The burden is on plaintiffs to act diligently to identify defendants within the appropriate limitation period.

Why did my health insurance go up so much? Often, it's because you had a birthday.

We often hear from consumers who say that their rate increase was substantially higher than what we approved.

One of Washington's major health insurers, for example, recently increased its premiums for individual plans an average of 13.5 percent. The highest increase among the plans was 21.5 percent. But we subsequently heard from consumers who are seeing rate hikes of 35 percent or more.

What's going on? Birthdays.

If you had a birthday in the past year and your new age ends in a zero or a five (55, 60, etc.), then you can expect a rate increase when your individual health plan renews. This is because you moved into a higher age band. (The insurers group ages together, five years at a time.) Since medical costs tend to increase with age, your premiums tend to jump every time you move to the next five-year band.

And when an age band increase combines with an across-the-board rate increase for everyone who’s on the health plan, you get a sort of double-whammy: the total rate increase can be substantially higher than what our agency approved.

Spokane man charged for claiming repossessed truck was stolen

A Spokane man was charged today with attempted first-degree theft and insurance fraud for claiming that his Toyota Tacoma pickup truck had been stolen, when in reality it had been repossessed. In fact, the man gave the keys to the repo man and was allowed to get his stuff out of the truck before it was towed away.

Andrew James Petrie, 28, is slated for arraignment Oct. 22 in Spokane County Superior Court.

On March 1, 2012, Petrie bought a 2000 Toyota Tacoma pickup from a Spokane car dealer. He paid with a personal check for $8,280. But the check was returned; Petrie's bank account had been closed.

The dealership said it gave Petrie two chances to pay for the truck, then sent a repo man to Petrie's mother's house. Petrie came out of the house, handed over a key to the truck, and was allowed to retrieve his personal items before the truck was towed away.

About three hours later, Petrie called Safeco Insurance and said the vehicle had been stolen from a different home. He said the thief had first broken the truck's back window, trying to take the sound system out. He later said that a construction company's trailer had been attached to the truck, and was also stolen.

A Safeco investigator checked with the dealership, and with the construction company. The insurer denied the claim, and notified our Special Investigations Unit that it suspected fraud. After investigating further, our office asked the state attorney general's office to file charges.

Average annual premiums for health insurance

Was looking through the latest annual Kaiser Family Foundation report on health insurance premiums this morning and came across this chart. Yikes.

These are nationwide averages. The report has a number of other interesting charts and data, summarized here. 

Election of Arbitration or Court Proceeding

Gordyukova v. Certas Direct Insurance Company, 2012 ONCA 563 (C.A.)

The subject of this appeal is s. 281.1(1) of the Insurance Act, which provides that an insured shall commence a court proceeding or arbitration within two years of the insurer's refusal to pay benefits.

The plaintiff was in a motor vehicle accident in 2001.  She applied for accident benefits and a dispute arose over certain medical benefits.  After mediation failed, she issued a Statement of Claim in 2002. In 2005, the insurer advised her she had exhausted her non-catastrophic limits for medical and rehabilitation benefits.  Her application for a catastrophic designation was rejected so she commenced an arbitration at FSCO in 2008.  Certas brought a motion to stay the arbitration on the grounds that the CAT dispute should be added to the court action. The arbitrator ruled the plaintiff could not proceed with both the court action and the arbitration, but could proceed with arbitration if she discontinued the court action.  The arbitrator ruled he was not ruling on the limitation issue.  The plaintiff gave notice of her intention to discontinue the court action and proceed with arbitration, and the insurer brought a motion seeking a ruling on the limitation issue.  The arbitrator ruled the plaintiff could add all of the matters pending before the Superior Court to the arbitration.

Certas appealed, arguing that the plaintiff could not re-elect the method of proceeding eight years after the court action was commenced. The matter was appealed to the Director 's Delegate then the Divisional Court.

The Court of Appeal held that the arbitration should be stayed.  Section 281.1(1) of the Insurance Act requires an election between a court action and an arbitration. It provides that a proceeding shall be brought within two years. The insured has the choice of forum, but cannot switch forums after the expiry of the limitation period.  Since the court proceeding included a claim for "continued accident benefits", it would necessarily include a determination of the CAT issue. 

Dental insurance: Where to find it, or how to find free/low-cost care if you can't afford it

We hear from a lot of consumers who want to buy dental insurance on their own, without getting it through an employer. Many companies -- and here's a list -- sell dental insurance directly to Washington state consumers.

When we hear from people who want to buy dental insurance on their own, they often wonder whether there are any particular questions they should ask the insurance company. Here are some suggestions:
• Is your current dentist in the dental plan’s network?
• What benefits does the plan provide? (If you don’t know, ask the company for a copy of the policy. They have to give you a copy if you specifically ask.)
• Does the plan have a waiting period before it will cover pre-existing conditions? If so, how long is the waiting period?
For many people, dental insurance isn’t within their price range. Fortunately, there are a number of low-cost or no-cost dental programs, and the Department of Health has a list of those programs on its website.

I ride a motorcycle. Do I need insurance?

Motorcyles and mopeds are exempted from Washington mandatory vehicle insurance law, so no, there is no law requiring you to have coverage.

But here's why you may very well want to get it anyway: You are still liable from the state's financial responsibility law. Meaning that if you hit something/someone and it's your fault, it's your responsibility to pay for the damage. And since even a minor scrape or ding to another vehicle can cost hundreds of dollars to fix, state officials believe that many motorcycle owners in Washington voluntarily choose to carry coverage.

Also, if you financed your bike with a loan, your lender will almost certainly require coverage so the lender doesn't lose its money if the bike is wrecked/stolen/vandalized/etc.