The Supreme Court recently commented on how much copying judges are permitted to do in the course of their reasons.
In Cojocaru v. British Columbia Women's Hospital and Health, [2013] SCC 30, the trial judge incorporated large portions of the plaintiff's submissions into his reasons for judgment. In fact, of 368 paragraphs in the judgment, only 47 were predominately the judge's own words. The Court held that "while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of materials from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside". The judgment will only be set aside if a reasonable person would conclude that the judge did not put his or her mind to the issues and decide them independently and impartially. The Court held that the decision should not be set aside. The key factors appear to be that the judge did not accept all of the plaintiff's submissions, discussed a number of issues and stated his conclusion in his own words.
Rabu, 29 Mei 2013
Kamis, 23 Mei 2013
Insurance tips: Why are my life insurance premiums increasing?
Here's are some life insurance tips from our consumer advocacy department, which gets a lot of insurance questions:
With long-term products such as whole life insurance, annuities, or long-term care insurance, it can be difficult to know which product or company is the best. Companies often give an estimate of how they expect the products to perform, but realistically, only time will tell which company and product will perform the best. Don’t fall for high teaser interest rates or low-ball premiums that are adjustable.
Our agency receives a lot of complaints from people whose universal and other whole life policies are underfunded and become too expensive to maintain. It’s important to realize that when you buy a whole life product, you’re actually buying a schedule of mortality rates.
No matter how young you are when you buy the policy, as you age, your mortality charges will increase so you’ll need to pay more to keep the policy in effect. Review your annual statements and illustrations to stay on top of how your policy is performing so that you can make sure that you pay enough premiums to keep the policy in effect.
And then there's this issue: A lot of people who have life insurance policies don’t tell the beneficiaries that the policy exists. As a result, the beneficiaries don’t collect on the policies when the policyholder dies. (Partly as a result of this lack of communication, there’s an estimated $200 million in unclaimed life insurance benefits in the U.S.) Also, life insurance policies often lapse when a dying or disabled person quits paying the bills. Remember to keep your life insurance beneficiaries informed so that they can make a claim on the policy after you’re gone and so that they can make sure the policy doesn’t lapse beforehand.
With long-term products such as whole life insurance, annuities, or long-term care insurance, it can be difficult to know which product or company is the best. Companies often give an estimate of how they expect the products to perform, but realistically, only time will tell which company and product will perform the best. Don’t fall for high teaser interest rates or low-ball premiums that are adjustable.
Our agency receives a lot of complaints from people whose universal and other whole life policies are underfunded and become too expensive to maintain. It’s important to realize that when you buy a whole life product, you’re actually buying a schedule of mortality rates.
No matter how young you are when you buy the policy, as you age, your mortality charges will increase so you’ll need to pay more to keep the policy in effect. Review your annual statements and illustrations to stay on top of how your policy is performing so that you can make sure that you pay enough premiums to keep the policy in effect.
And then there's this issue: A lot of people who have life insurance policies don’t tell the beneficiaries that the policy exists. As a result, the beneficiaries don’t collect on the policies when the policyholder dies. (Partly as a result of this lack of communication, there’s an estimated $200 million in unclaimed life insurance benefits in the U.S.) Also, life insurance policies often lapse when a dying or disabled person quits paying the bills. Remember to keep your life insurance beneficiaries informed so that they can make a claim on the policy after you’re gone and so that they can make sure the policy doesn’t lapse beforehand.
Rabu, 22 Mei 2013
Litigation Privilege Protects Adjuster's File
When does litigation privilege arise in tort claims?
Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)
In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed. The plaintiff fell in a Wal-mart parking lot and an incident report was prepared. A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident. The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.
Justice Quinn held that the notes were privileged:
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation. The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour).
Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)
In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed. The plaintiff fell in a Wal-mart parking lot and an incident report was prepared. A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident. The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.
Justice Quinn held that the notes were privileged:
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation. The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour).
Kamis, 16 Mei 2013
The proposed health insurance rates for 2014: Where to find them and what they say
A lot of people are wondering how health care reform will affect premiums for health insurance, including those plans that will be sold through the new Washington Healthplanfinder, our state's health insurance exchange.
The insurers selling plans inside and outside the Exchange have filed their proposed rates with our office. These rates include those for small businesses and for individuals buying insurance coverage on their own.
Our actuaries are reviewing the proposed rates, which we've posted on our website.
From what we've seen so far, we're pleasantly surprised. Many people will see rates similar to what they're paying now, or in some cases, lower -- and with substantially better benefits. While we have a lot of work to do in reviewing these proposals, and the final rates could change, we're definitely not seeing the huge rate increases that some insurers had predicted.
In most cases, the benefits are substantially better, particularly for the individual market. Today, most individual health plans don't cover prescription drugs or maternity care. When the Affordable Care Act takes full effect in January, they'll have to cover those things.
Also, in many cases, deductibles in the new plans are much lower than today and the new plans include approximately $500 worth of free preventive services, such as a wellness visit, some immunizations, cancer screenings, etc.
Finally, federal subsidies will help with the costs. If you earn less than $45,960 (or $94,200 for a family of four) you may qualify for a federal subsidy -- in the form of tax credits -- to help you pay your premium. You can get an estimate of that subsidy at the Washington Healthplanfinder site.
The insurers selling plans inside and outside the Exchange have filed their proposed rates with our office. These rates include those for small businesses and for individuals buying insurance coverage on their own.
Our actuaries are reviewing the proposed rates, which we've posted on our website.
From what we've seen so far, we're pleasantly surprised. Many people will see rates similar to what they're paying now, or in some cases, lower -- and with substantially better benefits. While we have a lot of work to do in reviewing these proposals, and the final rates could change, we're definitely not seeing the huge rate increases that some insurers had predicted.
In most cases, the benefits are substantially better, particularly for the individual market. Today, most individual health plans don't cover prescription drugs or maternity care. When the Affordable Care Act takes full effect in January, they'll have to cover those things.
Also, in many cases, deductibles in the new plans are much lower than today and the new plans include approximately $500 worth of free preventive services, such as a wellness visit, some immunizations, cancer screenings, etc.
Finally, federal subsidies will help with the costs. If you earn less than $45,960 (or $94,200 for a family of four) you may qualify for a federal subsidy -- in the form of tax credits -- to help you pay your premium. You can get an estimate of that subsidy at the Washington Healthplanfinder site.
Job opening: Deputy insurance commissioner for our Company Supervision division
We're recruiting to fill an exempt position for the deputy insurance commissioner in charge of our Company Supervision Division.
The successful applicant will manage a wide variety of situations and influences the course of insurance affairs at the state, national and international levels.
The position is responsible for the financial and market examination and supervision of all Washington-organized insuring entities and all other insuring entities licensed to do business in this state. The position’s mission is to protect insurance consumers, the public generally, and the state’s economy by ensuring the safety and soundness of insuring entities, and to ensure that they comply with applicable law.
In addition, the position has broad statutory discretion and specific statutory authority involving the registration/licensing, operation, supervision, receivership, liquidation, and merger of insuring entities.
For more specifics, duties, salary, and more please see the full job listing.
The successful applicant will manage a wide variety of situations and influences the course of insurance affairs at the state, national and international levels.
The position is responsible for the financial and market examination and supervision of all Washington-organized insuring entities and all other insuring entities licensed to do business in this state. The position’s mission is to protect insurance consumers, the public generally, and the state’s economy by ensuring the safety and soundness of insuring entities, and to ensure that they comply with applicable law.
In addition, the position has broad statutory discretion and specific statutory authority involving the registration/licensing, operation, supervision, receivership, liquidation, and merger of insuring entities.
For more specifics, duties, salary, and more please see the full job listing.
Rabu, 15 Mei 2013
When an insurer forgets to bill you -- and then suddenly remembers
Q: "My insurer is supposed to take my monthly payment out of my checking account, but didn't do it for three months. Now they want me to pay for three months all at once. Can they do that?"
A: Sorry to tell you, but the short answer is yes, since they provided coverage for those three months. But since they erred by not taking the payments on time, it's worth asking if they'll allow you to pay in installments, so you don't get hit with a triple bill all at once.
When you know that a monthly insurance premium is supposed to come out of your bank account and you notice that it doesn't, don't wait and hope that that means you get free insurance. Call your agent or insurer and find out what's going on.
A: Sorry to tell you, but the short answer is yes, since they provided coverage for those three months. But since they erred by not taking the payments on time, it's worth asking if they'll allow you to pay in installments, so you don't get hit with a triple bill all at once.
When you know that a monthly insurance premium is supposed to come out of your bank account and you notice that it doesn't, don't wait and hope that that means you get free insurance. Call your agent or insurer and find out what's going on.
Limitation Periods in Duty to Defend or Indemnify Cases
When does the limitation period begin to run in duty to defend or duty to indemnify cases?
In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs. Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor. Georgian was added as an additional insured to the contractor's policy. The underlying claim was ultimately settled on the basis of the contractor's admission of liability.
One of the issues was when the limitation period began to run. Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.
Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement." Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.
Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.
In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs. Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor. Georgian was added as an additional insured to the contractor's policy. The underlying claim was ultimately settled on the basis of the contractor's admission of liability.
One of the issues was when the limitation period began to run. Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.
Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement." Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.
Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.
Rabu, 08 Mei 2013
Insurer Obligated to Continue Paying Defence Costs
Malaviya was insured under a Standard Automobile Policy (SAP) with Jevco for the minimum liability limit of $200,000. He was sued following an accident in 2005. The insurer paid the limits of its policy, then sought a declaration that it had no continuing duty to indemnify or defend Malaviya. The contentious issue on the application was whether Jevco was obliged to continue paying the insured’s defence costs.
Justice Morgan described the wording of the SAP as “muddled and contradictory”. It failed to clearly answer whether the insured would pay the insured’s legal costs above and beyond the coverage limit. On the other hand, s. 245(b) of the Insurance Act provides that the insurer shall bear the defence costs of a claim. There is no limiting language in s. 245. As a result, the insurer is obligated to continue paying defence costs of the insured, even when there is no further duty to indemnify.
The SAP may have to be modified in order to avoid this situation from arising in the future.
Selasa, 07 Mei 2013
Job opening: Senior market analyst
We're recruiting for a senior market analyst position at our Tumwater, Wash. office.
This position is responsible for conducting market analysis of regulated entities under the direction of the Chief Market Analyst. This position protects consumer's interests and promotes a healthy business environment in this state by providing regulatory oversight of market interactions between consumers and insurance carriers.
For more specifics, duties, salary, timeline, etc., please see the full job listing.
This position is responsible for conducting market analysis of regulated entities under the direction of the Chief Market Analyst. This position protects consumer's interests and promotes a healthy business environment in this state by providing regulatory oversight of market interactions between consumers and insurance carriers.
For more specifics, duties, salary, timeline, etc., please see the full job listing.
Rabu, 01 Mei 2013
May 9 hearing set to consider Washington Dental Service reorganization and merger plan
Insurance Commissioner Mike Kreidler has scheduled a hearing for 10 a.m. on May 9, 2013, in Olympia to consider whether he should approve or deny the request for the merger of Washington-based Washington Dental Services (WDS).
WDS has filed an application for its plan of reorganization and merger transaction that includes a proposed reverse merger of Washington Dental Service with and into a DD of Washington subsidiary to become a subsidiary of an existing holding company.
Here's a summary of the proposal, including background, history, and a brief explanation of the hearings process and what we look at. If the proposal is approved, WDS would become a subsidiary under a new holding company system. WDS would later change its corporate name to Delta Dental of Washington.
To view filed documents and information about the hearing process, go to Washington Dental Service #13-0115. (Scroll down a bit after clicking on that link.) Those documents include the notice of hearing, the reorganization plan, board resolutions, organizational charts, and other requests for transactions filed in this proceeding.
The hearing is open to the public. Any interested parties may submit letters of support or concerns or objections and/or may participate in the hearing by appearing in person or by telephone at no charge. For street address or directions on dialing in by phone (as well as more background on the proposal), please see the hearing order.
WDS has filed an application for its plan of reorganization and merger transaction that includes a proposed reverse merger of Washington Dental Service with and into a DD of Washington subsidiary to become a subsidiary of an existing holding company.
Here's a summary of the proposal, including background, history, and a brief explanation of the hearings process and what we look at. If the proposal is approved, WDS would become a subsidiary under a new holding company system. WDS would later change its corporate name to Delta Dental of Washington.
To view filed documents and information about the hearing process, go to Washington Dental Service #13-0115. (Scroll down a bit after clicking on that link.) Those documents include the notice of hearing, the reorganization plan, board resolutions, organizational charts, and other requests for transactions filed in this proceeding.
The hearing is open to the public. Any interested parties may submit letters of support or concerns or objections and/or may participate in the hearing by appearing in person or by telephone at no charge. For street address or directions on dialing in by phone (as well as more background on the proposal), please see the hearing order.
Action Against Municipality Dismissed for Failing to Give Notice
In August of last year, we reported on Argue v. Tay (Township), in which the action was dismissed for the failure to give notice required by s. 44(10) of the Municipal Act. The plaintiff argued that the municipality had actual or constructive knowledge of the accident because the municipal fire department attended the scene. The matter was appealed to the Court of Appeal, which has now dismissed the appeal at 2013 ONCA 247 (CanLii).
The Court of Appeal confirmed that the plaintiff had the onus of establishing that she had a reasonable excuse for not providing notice and that the municipality was not prejudiced. The motions judge held that she failed to meet her onus. The Court of Appeal found no error in the motion judge's analysis or his application of the relevant principles.
This is an extremely helpful decision in cases where the plaintiff has failed to provide notice to the Municipality.
The Court of Appeal confirmed that the plaintiff had the onus of establishing that she had a reasonable excuse for not providing notice and that the municipality was not prejudiced. The motions judge held that she failed to meet her onus. The Court of Appeal found no error in the motion judge's analysis or his application of the relevant principles.
This is an extremely helpful decision in cases where the plaintiff has failed to provide notice to the Municipality.
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