Rabu, 30 Januari 2013

Defendant Who Crosses Centre Line Prima Facie Negligent

The Court of Appeal has set aside a jury verdict that dismissed an action against a defendant who crossed out of his lane and collided with another vehicle.

In El Dali v. Panjalingham, 2013 ONCA 24 (C.A.), the plaintiff was injured in an automobile accident when the defendant lost control of his vehicle on an icy road, crossed the centre line, slid into oncoming traffic, and hit the plaintiff's vehicle.  The plaintiff remained on his side of the road and was able to bring his vehicle to a complete stop.  The police officer who attended the scene decided not to lay charges due to weather conditions.  The defendant did not testify at trial and called no other evidence to explain his driving.

A jury found there was no negligence on the part of the defendant and dismissed the case.  The plaintiff appealed.  The Court of Appeal allowed the appeal and ordered a new trial. The defendant breached s. 148 of the Highway Traffic Act by crossing the centre line of the road and a driver who does so is prima facie negligent.  The driver then bears the onus of explaining that the accident could not have been avoided with the exercise of reasonable care.  The explanation need not come from the defendant, but must come from someone or the defendant will be held at least partially responsible.  The fact the police officer did not lay charges and that there were icy road conditions were not sufficient to support the jury's conclusion.  Defence counsel suggested a 50% apportionment in her closing, which also suggested the defendant bore some responsibility.


Those defending similar claims will have to consider the appropriate evidence to call in order to rebut the onus to explain how the accident occurred without negligence.

Rabu, 23 Januari 2013

Two insurers fined $250,000

A California insurer and its sister company are being fined $250,000 for multiple violations of Washington’s insurance laws.

Health Net Health Plan of Oregon, Inc. and Health Net Life Insurance Co., of Woodland Hills, Calif., have signed a consent order jointly agreeing to pay the fine.

The violations include:

• As an illegal inducement to keep customers, the companies offered an unapproved premium holiday – a month of free insurance -- to hundreds of customers. (State law says that insurers must use the rates they file with state regulators.)

• Customers were transferred to new plans with a different company, but were wrongly told that the change was simply a “renewal” of the policy.

• By not telling customers that they had been transferred to a different company, the companies also violated a state law requiring insurers to use their own names.

“I’m all for consumers getting a break on their health insurance premiums,” said Insurance Commissioner Mike Kreidler. “But insurers have to follow the same rules their competitors do. If they say they’re going to charge a particular rate, that’s the rate they should use.”

Litigation Privilege - Production of Lawyer's Notes of Interview

A recent case deals with production of statements taken by an opposing party.  It provides a summary of the principles relating to litigation privilege.

In Hart v. Canada (Attorney General), 2012 ONSC 6067 (S.C.J.), the plaintiff brought a motion seeking production of notes that had been made by counsel for the defendant several years earlier when the plaintiff was a potential witness in another lawsuit arising out of the same factual nexus.  The notes appeared to be an almost verbatim translation of the interview.  The defendant argued the notes were protected by litigation privilege.  The Master ordered the notes to be produced and the defendant appealed.

The appeal was dismissed.  Litigation privilege cannot restrict disclosure of an opposing party's statements.  Information or statements that are obtained from an opposing party cannot be confidential from that party.  To the extent a document is a mere recording of information given by the opposing party, it is not subject to litigation privilege, even though it was created with a view to anticipated future actions; however, if the document contains something more that amounts to a solicitor's work product, then it is privileged.  Counsel for the defendant would be permitted to make a proposal to redact certain parts of the document that contained information that was more than simply a record of the plaintiff's interview and statement, such as margin notes, underlining and highlighting.

It appears that the key fact was that the notes contained an almost verbatim recording of the plaintiff's interview.  If the notes contained the solicitor's strategies or theories, the outcome may have been different.

Rabu, 16 Januari 2013

Definition of "Accident" Under the SABS

How far can the definition of "accident" under the SABS be stretched?

In Dominion of Canada v. Prest, 2013 ONSC 92 (S.C.J.), the insured was washing his car and tripped over a curb sticking out from the wall of his parking garage.  He claimed that his right hand was touching the car as he fell, and therefore he was entitled to accident benefits.  Dominion sought a determination as to whether the incident met the definition of an "accident" within s. 3(1) of the SABS, which defines "accident" as "an incident in which the use or operation of an automobile directly causes an impairment."

Justice McNamara held that the incident was not an "accident".  He used the two part test set out by the Court of Appeal in Chisholm v. Liberty Mutual (2002), O.R. (3d) 776 (C.A.) and Greenhalgh v. ING (2004), CanLii 21045 (C.A.):

(a)  Did the incident arise out of the use or operation of an automobile (the “purpose test”); and
(b)  Did such use or operation of an automobile directly cause the impairment (the “causation test”).

Justice McNamara held that the vehicle was not being used or operated at the time of the incident and was not a direct cause of the impairment.  The use of the car had ended without injury being suffered and tripping over the curb was a new intervening act. The insured was not entitled to accident benefits, showing that there is indeed a limit to how far the definition can be stretched.

Senin, 14 Januari 2013

Our new, much different website

Yesterday (yes, during the Seahawks game, yes, yes) we launched our new, faster, and hopefully much-easier-to-use website.

It's the product of months of testing with a variety of demographics, and the site is designed to be much more intuitive than our former site. On the old site, consumers could complete only 1/3 of the typical tasks we gave them. Now it's over 80 percent, and we're going to keep tweaking things to try to improve that further.

Take a look.

Rabu, 09 Januari 2013

Loss Transfer - Cost of Assessments

Early this year, we blogged on a decision by Justice Greer holding that the costs of insurer generated assessments under s. 42 of the SABS are not recoverable under the loss transfer provisions (Wawanesa v. Axa).  The matter was appealed to the Court of Appeal.

The Court of Appeal decision is found at 2012 ONCA 592.  The Court dismissed the appeal.  Section 275(1) of the Insurance Act provides:

The insurer responsible under subsection 268(2) for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which responsibility to pay the statutory accident benefits arose.

Justice Weiler held that the words "in relation to" convey a connection between two related subject matters.  A "connection" must be between statutory benefits paid and the cost of the assessment, and only exists if the ABs were actually paid.  If the assessment only saved some benefits from being paid unnecessarily there would be full indemnification, but no indemnification if no benefits were paid.  The legislature could not have intended such an anomalous result. In addition, the connection should be between insurer generated assessments and ABs paid to the insured, whereas the cost of the assessment is paid to the doctor who conducts the assessment.

Justice Blair wrote a dissenting opinion, preferring a wide scope to the words "in relation to" that would include the cost of assessments.

Giving the dissenting opinion, perhaps this matter will be headed to the Supreme Court for final clarification, especially given the rising costs of assessments.

Selasa, 08 Januari 2013

Our website's about to change dramatically. Here's what agents/brokers/insurers need to know

On Sunday, Jan. 13, we'll be rolling out our new agency website. It looks a lot different. We've tested the design on a variety of consumers and industry professionals, we've overhauled the navigational structure, and we've given the whole site a distinctly different look and feel.

There's one thing we're sure of: The site will be much more intuitive and easy to use. Early testing showed that consumers had a 1 in 3 task completion rate on our current site. On the new version, that jumped to 80 percent. And we hope that further fine-tuning boosts it further.

Here's the important part for agents, brokers and companies: The new site immediately splits users into a "consumer" area for laypersons and an "industry professionals" section for the folks that have to interact with our site for licensing, continuing education reporting, tax filing, financial statements, etc.

Update: And it's live! At the top of the home page, you'll see a tab marked "For industry professionals." There you go.

Two of WA's largest nonprofit health insurers have $2.2 billion in surplus


From a press release we sent out today:
OLYMPIA, Wash. – With two of the state’s largest health insurers sitting on surpluses totaling $2.2 billion, Washington’s top insurance regulator wants to use some of that money to lower costs for consumers.

According to the companies’ most recent financial statements, Regence BlueShield’s surplus has grown to $1.05 billion. Premera Blue Cross’ surplus is $1.15 billion.

“These are non-profit companies,” said Insurance Commissioner Mike Kreidler. “It’s hard to square their billion-dollar surpluses with the fact that families are struggling to afford health insurance.”

Kreidler is proposing legislation that would allow his office to consider surpluses when reviewing nonprofit health insurers’ proposed rates. As things stand now, his staff must ignore them.

“As I’ve said before, it’s like trying to ignore an elephant in the room,” Kreidler said. “And the elephant’s getting bigger.”

The surpluses of both Regence and Premera have more than doubled in a decade. In the first nine months of 2012, Regence’s grew by $60 million. Premera’s grew by nearly $182 million.

“It’s important to remember that these are not reserves, which are set aside to pay future claims,” Kreidler said. “These billion-dollar surpluses are in addition to their reserves.”