Martin v. Fleming - Deductibles

The Court of Appeal has now released its decision in Martin v. Fleming, which can be found at the following link: Martin v. Fleming, 2012 ONCA 750 (C.A.)

At issue was the operation of the deductible where a plaintiff has been in multiple accidents.  The motions judge ruled that where the plaintiff has been involved in two accidents and the actions are tried together, there is a deductible for each action.

In a brief endorsement, the Court of Appeal dismissed the appeal. They followed the motion judge's reasoning that s. 267.5(7) is unambiguous and the plaintiff is subject to two deductibles.

Although this is a brief endorsement, it is important to those defending claims where the plaintiff has been in multiple accidents.  Insurers for each defendant retain the benefit of the deductible.

A hard lesson for victims with flooded houses: standard homeowners policies don't cover flooding

The New York Times has a nuts-and-bolts story about insurance concerns in the wake of Hurricane Sandy, and all of the lessons apply here in Washington.

The biggest one -- and something that we repeat often -- is that a standard homeowners policy does not cover flooding. For that coverage, people typically buy a policy from the federally-run National Flood Insurance Program.

The problem is that unless required to by their lender, many homeowners simply don't get flood coverage. (And even those whose mortgage requires it often later let it lapse.)

The article covers things like who pays for tree removal, will you be reimbursed for living costs if your home is uninhabitable, and will an insurer cover the cost of ruined food when the power fails.

25 free apps

The U.S. Department of Health and Human Services has compiled a list of free health-related applications, created by the feds, regarding health. They include apps for the iPhone, iPad, Android and iPod Touch.

The apps include:

Find a Health Center: Created by the Health Resources and Services Administration, this map-linked app helps you find the nearest federally funded health center, which will care for you even if you have no health insurance. Based on your income, you pay what you can afford.

The popular BMI calculator, which helps determine your body mass index.

Brrd Brawl: A mobile game developed to give jittery quitting smokers something to do with their hands.

52 Weeks of Women's Health: Info on 52 health topics, ranging from eye health to contraception. Also helps track medications, allergies, etc.

Other apps include help triaging injuries in the field, treating radiation injuries, quitting smoking, tracking the flu in your area, tracking a pregnancy and reuniting after a disaster.

Expert Independence

Do the new rules pertaining to expert evidence impose a higher duty than at common law?  When an expert is alleged to be biased due to a connection to one of the parties or a matter in issue, does it go to admissibility or weight? 

In Henderson v. Risi, 2012 ONSC 3459 (S.C.J.), the defendant proffered an expert, Mozessohn, to give testimony at trial regarding irregularities in the financial records of Timeless Inc., provide an opinion on the value of shares in Timeless held by the plaintiff, and critique the plaintiff expert's opinion.  The plaintiff objected to the admissibility of Mozessohn's evidence on the basis that he was not independent or impartial since he was a partner in the accounting firm that acted as Timeless' Trustee in Bankruptcy.  Mozessohn testified that there had been no communication between members of his firm about the case.

Justice Lederman quoted the Newfoundland Court of Appeal in Gallant v. Brake-Patten 2012 NLCA 23 (CanLII), which summed up the law regarding the admissibility of expert evidence where the allegation is the expert lacks institutional independence as opposed to personal advocacy:

In summary, in civil cases, if expert evidence meets the Mohan criteria for admissibility, it is admissible.  Bias or partiality in expert evidence which is based on the expert having a connection with a party or issue or a possible pre-disposition or approach in the case is a reliability issue which is best determined when the whole of the expert evidence is considered in the context of all of the trial evidence.  As such, the issue is one of weight and not admissibility.

Plaintiff's counsel argued that the new r. 4.1 and the changes to r. 53 imposed a higher level on duty on an expert in Ontario, and that the question of institutional independence must be determined at the admissibility stage rather than leaving it to be considered as a matter of weight.

Justice Lederman disagreed and allowed the expert to give testimony.  Rules 4.1 and 53 simply remind experts of their already existing obligations to provide opinion evidence that is fair, objective and non-partisan.  Any lack of institutional independence went to weight rather than admissibility.  The new rules impose no higher duties than already existed at common law.

Job opening: .NET developer

We're recruiting to fill a position for an information technology specialist 4 (.NET developer) in our operations division in Tumwater, Wash.

The successful applicant's duties will include software development of mission-critical agency systems, systems analysis, as well as software unit and quality assurance testing.

For more specifics, duties, salary, timeline, etc., please see the full job listing.

Three companies fined $605,000

Insurance Commissioner Mike Kreidler is fining three companies a total of $605,000 for violating Washington insurance laws.

“Our insurance laws protect consumers and maintain a level playing field in the insurance market,” said Kreidler. “Break the law and you’ll face the consequences.”

The fines were as follows:

PacifiCare of Washington (now known as UnitedHealthcare of Washington, Inc.) has agreed to pay a $400,000 fine for what state financial examiners concluded were improper royalties paid to an affiliated company. The company contended that the payments were administrative fees, but acknowledged that it had failed to annually reconcile the payments with actual costs to show that the company wasn’t overpaying.

In addition to the fine, the company has recovered the $72.9 million it paid between 1999 and late 2006.

STA Travel Inc., based in Texas, agreed to pay $115,000 for allowing unlicensed staffers to sell insurance policies in Washington. The company is a travel agency specializing in international college student travel. It sells travel insurance as part of its travel services.

Although the company’s office manager was a licensed insurance agent, under Washington law, all staff selling travel policies needed to be licensed. Policies were sold by unlicensed staffers from 2005 to 2011.

Lenovo (United States) Inc., incorporated in Delaware, has agreed to pay $90,000 for improperly selling 1,327 service contracts in Washington. The company failed to register as a service contract provider, as required by state law. The service contracts were sold from mid-2008 through mid-2012.

Fines collected by the insurance commissioner's office do not go to the agency. The money is deposited in the state's general fund to pay for other state services.

License revocation for insurance agent who allegedly faked own death

Washington Insurance Commissioner Mike Kreidler has issued an order to revoke the license of an Enumclaw insurance agent who allegedly faked his own death as part of a $2 million scam.

Aaron Travis Beaird, manager of Team Financial Services LLC, "knowingly devised a scheme and artifice to defraud consumers and to obtain money and property by means of false and fraudulent pretenses," according to the order.

Beaird would recomment to his clients that they liquidate one investment and transfer the money into another investment or insurance policy, making the checks out to his business.

The problem: Beaird didn't actually invest the money or buy a policy. Instead, according to the license revocation order, he'd take the money for "his own use and benefit." To cover things up, he would provide his clients with fake account statements.

Beaird was arrested in early July on federal charges of wire fraud and mail fraud. Investigators said he left a fake suicide note in his car, which was found parked near a bridge on June 23rd.

He pleaded guilty in federal district court Aug. 28th. He admitted to defrauding at least 11 people out of more than $1 million. He is currently incarcerated, awaiting sentencing,  at the SeaTac Federal Detention Center.

Beaird has the right to demand a hearing to contest the order.

Update: (Nov. 20) The revocation has taken effect.