Wednesday, April 30th, 2014
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing the liability of a motorist who darts into traffic causing a cyclist to lose control.
In this week’s case (Graham v. Carson) the Defendant motorist was stopped at a commercial loading zone and the “darted out into traffic too quickly” when it was unsafe to do so. The Plaintiff, who was travelling in the same direction, lost control trying to avoid a collision with the Defendant and subsequently drove his bicycle into a parked car causing injury to himself. The Defendant argued the Plaintiff was the author of his own misfortune. Mr. Justice Macintosh rejected this argument finding the Plaintiff acted reasonably in the agony of collision and that the Defendant was fully to blame. In reaching this conclusion the Court provided the following reasons:
 Having found as I have regarding the turn signal, I add that the failure to signal is not the central concern in this case. If Ms. Carson had signalled at about the same moment she pulled out and drove into the traffic, the signal would have been of little or no assistance to anyone. The main problem was that Ms. Carson’s car darted out into traffic too quickly. The traffic was proceeding south on Blanshard immediately behind or beside her car when her car had been stopped in the commercial zone moments before that. She should have waited for a safe opening in the traffic, which might have entailed waiting where she was until the light changed so as to stop the southerly flow on Blanshard before cars started south onto Blanshard from Fort Street…
 Proceeding through the green light southward on Blanshard were, first, the SUV, second, the plaintiff on his bicycle, and third, Mr. Enns in his car. The SUV, the plaintiff’s bicycle and the Enns car were thrown into disarray by the defendant driver pulling out too suddenly, immediately in front of the SUV.
 I noted above that the SUV stopped before hitting the defendant’s car, but avoiding that collision was a near thing. The SUV had to stop very quickly. Mr. Enns veered his car toward the left; that is, toward the centremost of the southbound lanes on Blanshard, in order to avoid a collision. Meanwhile, the plaintiff on his bike had a matter of seconds to decide what to do. He was conscious from past experience that he risked being rear‑ended by the Enns vehicle if he stayed his course and simply braked, hoping to stop in time to avoid hitting the SUV. Instead, he steered his bike, to the right, into what appeared as a metre‑wide opening between the stopped SUV and a car parked on Blanshard, just south of the commercial zone.
 As I noted above, Mr. Graham is an experienced cyclist, and hoping to avoid injury by driving into the space between the SUV and the parked car was not unreasonable in that dire circumstance, when there was no time and little opportunity to do anything else.
 Unfortunately, that escape route did not save the plaintiff. His elbow hit the mirror of the parked car, breaking off the mirror. That impact drove him from his bike and injured him, thus giving rise to this claim…
 My view of the evidence and my resulting findings of fact lead to my conclusion that the defendant driver is fully liable for the plaintiff’s injuries. The plaintiff was not contributorily negligent. He acted promptly and not unreasonably in a desperate situation, which was brought about entirely by Ms. Carson’s re‑entering traffic when her car should have stayed where it was until there was a safe opportunity to proceed.
Monday, April 28th, 2014
Canadian police have agreed to let Chinese drivers temporarily use their mainland licences in British Columbia without being fined, ending a row with the province’s car insurance authority.
This week’s deal between the Royal Canadian Mounted Police (RCMP) and the Insurance Corporation of British Columbia (ICBC) was struck after it emerged that the police considered thousands of Chinese were driving illegally in the city of Richmond. The Vancouver satellite is the most Chinese city outside Asia, with almost 50 per cent of the 190,000 population ethnic Chinese.
The RCMP has long fined drivers caught using a Chinese licence, and towed their vehicles. Yet the ICBC – which is in charge of vehicle registration, licences and insurance – had been allowing Chinese visitors and new immigrants onto the roads, telling them their mainland licences were valid in BC for up to six months and 90 days respectively.
Police had said they could not trust the veracity of mainland documents because there was no licence data-sharing agreement.
Despite numerous challenges to the RCMP’s policy by aggrieved drivers, BC’s courts had always sided with the police.
Now, the issue had been resolved in the ICBC’s favour, the insurer said.
It said the RCMP had agreed to no longer fine drivers using mainland licences but they would have to get a valid BC licence within 90 days of becoming a BC resident. Visitors would be allowed to drive on their Chinese licences for six months.
If a driver with a Chinese licence was pulled over, the ICBC said it would work to help confirm the authenticity of the document and the driver’s details.
“The RCMP has advised that they will not ticket drivers who have a validly issued driver’s licence from a jurisdiction outside of BC as long as the driver meets the requirements of the Motor Vehicle Act,” ICBC spokesman Adam Grossman said on Thursday.
Chinese students would be allowed to used their mainland licences as long as they were enrolled in full-time education.
Many other foreign drivers in BC are allowed on the roads using an international drivers’ permit, obtained in their home country, but China does not participate in the programme.
Constable Dennis Hwang, of Richmond’s road safety unit, has suggested that some Chinese drivers had been caught using fake international permits.
“China is not one of those countries [that issue international permits] and when we come across Chinese drivers with one, we know that the document is fake,” he told The Province newspaper a fortnight ago.
Chinese drivers in Richmond have previously been implicated in a number of scams designed to circumvent licensing rules.
In the most prominent case, an ICBC driving examiner and the operator of a Richmond driving school were convicted in 2008 of running a bribery scheme in which dozens of Chinese drivers paid up to C$8,000 (HK$56,200) for a licence, sometimes without even turning up for a test.
Driving instructor David Foon-wai Chiu, who made up to C$150,000 from the scam, was jailed for 21/2 years. ICBC examiner Crispina Diaz received a conditional sentence.
Monday, April 28th, 2014
The Ontario Superior Court has released a subrogation decision dealing with two interesting issues: Assessing a defendant’s negligence and the ability of an insurer to subrogate against its own unnamed insured.
In Rochon v. Rochon, the defendant was the plaintiffs’ son. He owned a 2009 Chevrolet Cobalt motor vehicle. Economical Insurance issued an Ontario Automobile Policy of insurance to the defendant in accordance with the statutory requirements in return for a premium.
On March 28, 2010, the defendant drove his vehicle into the detached garage on the plaintiff’s property in order to install new auxiliary lights underneath the headlights on the front of his vehicle. He connected the vehicle’s battery to a battery charger with jumper cables to provide a source of power and turned the car engine off. He worked on the repairs and left the garage. While he was away, the vehicle caught on fire. The fire spread to the structure of the garage causing significant property damage.
Grenville insured the plaintiffs under a home policy. It paid out the property damage loss to the plaintiffs in the amount of $148,581.65. Grenville then sought to recover from Economical in a subrogated claim, the sum of $148,581.65, alleging that the fire was as a result of the defendant’s negligent use and operation of a motor vehicle. In addition, the plaintiffs sought judgment for their uninsured loss of $8,000.00 for a total judgment claimed by the plaintiffs as against the defendant of $156,581.65.
The defendant raised two issues: Firstly, he denied negligence for causing the accident. Secondly, he claimed that he was an insured person under the plaintiffs’ policy, which precluded Grenville from suing him.
On the negligence issue, the judge found that the plaintiffs established on a balance of probabilities that the defendant was negligent and that the defendant’s negligence caused the fire and damage. Of note, the plaintiffs urged the judge to find that the mere fact that the defendant’s vehicle caught on fire was prima facie evidence of negligence. This is because vehicles do not, in the ordinary course of things, catch on fire in the absence of negligence. It followed that the very fact that the defendant’s vehicle caught on fire was evidence of the defendant’s negligence.
The judge rejected that argument in part, noting that what the plaintiff’s were asking was for her to apply the outdated doctrine of res ipsa loquitur (“the thing speaks for itself”). The Supreme Court of Canada has rejected the doctrine as an appropriate use to determine negligence. However, the judge held that there was still some merit to the plaintiffs’ argument, only that she had to be careful in affording it much weight.
On the facts of the case, the judge agreed that vehicles do not ordinarily catch fire in the absence of some negligence, but that was only one piece of evidence. She found that the defendant did not lead any evidence to negate the evidence of the plaintiffs as to the origin or cause of the fire. Conversely, the plaintiffs’ expert testified that the origin of the fire was at the positive terminal post of the battery where the most extensive fire damage was found. The cause of the fire was electrical arching caused by a poor connection on the battery post. The judge accepted his evidence as being credible and reliable and that it went to the origin and cause of this fire. She found, among other things, that the defendant did not take reasonable care to ensure that his battery connections were secure.
Right to Subrogate
An insurer cannot subrogate against its own insured.
In the Grenville policy of insurance, there was no definition of who was an “Insured”. The policy defined “You” and “Your”: This definition applied to all four sections of the Grenville policy. It was admitted that the defendant was an unnamed insured on the plaintiffs’ residential insurance policy with Grenville and that he was subject to the term and conditions of the policy. It was admitted that the work done by the defendant on the vehicle and the subsequent fire were within the definition of being related to the ‘use and operation of a motor vehicle’.
The judge held that as the defendant son was an unnamed insured on the policy, by the definition of “You” and “Your” in the policy, the defendant son’s rights were the equivalent of his parents throughout the policy.
Among other reasons, the judge noted that contractual conditions in the Grenville policy required the insured (the defendant), to take reasonable steps to recover lost property, transfer his right against others to the insurer Grenville and to submit to an examination under oath and produce all documentation in his possession at Grenville’s request. The defendant was also required to speak to Grenville’s adjuster and provide a statement, which he did, to assist Grenville in recovering the loss. The judge held that this requirement was contrary to the defendant’s interest if he could now be sued under the same policy by Grenville, his own insurer. The only way these contractual requirements made sense was that these conditions relate to the conditions required of the insurer’s own insured on the policy to recover losses from third persons, but not their own insured.
Accordingly, the judge despite finding that the defendant was negligent, the judge dismissed the insurer’s subrogation claim against him. That said, the judge allowed the parents’ claim for the uninsured losses totalling $8,000 (makes sense, since the parents could maintain a common law tort action against the defendant for their uninsured losses).
See Rochon v. Rochon, 2014 ONSC 2337 (CanLII)
Monday, April 28th, 2014
High-risk holiday activities can end up being the furthest thing from a cheap thrill, especially when insurers dismiss a claim following a costly injury.
The price of an adventure-related mishap abroad was underscored this week after a B.C. woman’s skydiving accident in Arizona.
Kenzie Markey, 32, plummeted to the ground when her parachute collapsed. She suffered a collapsed lung, a broken femur, pelvis and eye socket, and brain swelling. Although she survived, Markey has racked up $500,000 in medical bills in a little more than two weeks.
Her family was stunned to learn afterwards that her insurance claim had been dismissed as invalid because Markey was participating in an extreme sport.
It’s not an unusual circumstance, according to the Canadian Life and Health Insurance Association, which represents most of the more than 60 health and life insurers in the country.
But do insurers ever cover activities like skydiving or parasailing?
“Some plans do; some plans don’t,” said Wendy Hope, vice-president of external relations with the national organization.
Study policy’s exclusion list
“If you are travelling and planning to engage in a high-risk activity, you should make sure you buy travel insurance, but you should also be asking some very, very specific questions to ensure the activity you plan on participating in is covered, because not all plans will cover them.”
‘If it’s a very general exclusion of ‘hazardous sports,’ then what is a hazardous sport? To avoid those situations, you want to try and get clarity before you travel.’– John Thain, president of the Travel Health Insurance Association of Canada
John Thain, president of the Travel Health Insurance Association of Canada, said holiday surveys show that travellers are more prone to “risky behaviour” when on vacation abroad.
What constitutes a hazardous or extreme sport isn’t always so clear in insurance policies, however.
That’s why Thain advises Canadians seeking thrills in another country to scan their policy and look for an exclusion list that clearly defines whether an insurance carrier considers a particular activity to be dangerous.
“Find a policy that’s very specific,” he said. “If it’s a very general exclusion of ‘hazardous sports,’ then what is a hazardous sport? To avoid those situations, you want to try and get clarity before you travel.”
Adventurous activities that might be excluded include parasailing or hang-gliding.
If a traveller is unsure, the simplest thing to do is call an insurance provider’s toll-free number to ask, Thain said.
A 2013 survey by the Travel Health Insurance Association of Canada, which represents about 80 travel insurers, brokers, underwriters, air ambulance companies and other organizations in the travel insurance field, found that 35 per cent of Canadians forego travel health insurance.
By Thain’s estimate, less than five per cent of all travel insurance claims are denied.
‘The outside edge of normal’
Licensed insurance brokers can also guide people towards higher-risk policies that would suit a more daring lifestyle, he said.
Some companies have more restrictive exclusion lists than others.
“They read something like: ‘We will not cover any motorized speed contest,’” said Bill Bailey, who specializes in sports risk with WL Edwards and Hudson Henderson insurance. “If you’re planning on anything on the outside edge of normal like, say, mountain biking downhill, parasailing, skiing on extreme-risk, black-diamond-type hills, motorized sport speed contests, it is the responsibility of the person travelling to look at what is covered and what isn’t.”
Even professional athletes need to know when their travel insurance is covered by their sanctioned athletics association, and when they’re on their own.
Bailey pointed to the case of Canadian freestyle skier Sarah Burke. The 29-year-old died two years ago after crashing on the superpipe at a Utah event sponsored by an energy drink company.
Burke did not have her projected $200,000 in hospital bills covered by the Canadian Freestyle Skiing Association because the event she was participating in was not officially sanctioned.
“You cannot get insurance for most pro athletes,” Bailey explained. “They have to go through the sanctioned body, so if you’re a PGA guy, you have to go through the Professional Golf Association.”
Vacationers who decide to engage in a high-risk activity would be wiser to study their travel insurance policies rather than to leave it up to chance, Bailey said.
“Don’t think that if you buy one [policy], you buy them all and they’re all the same,” he said.
He estimates that about 75 per cent of the travel medical insurance policies offered to Canadians would exclude skydiving or parachuting.
But that doesn’t mean policies that do cover those types of activities would be necessarily more expensive.
“It’s not always the case,” Bailey said. “Sometimes the dollars aren’t different, it’s just the wording. The cost for the insurance can be very similar, it’s just the policy exclusions are different.”
Markey’s case serves as a a cautionary one, he said. As the Pemberton, B.C., resident recovers in an Arizona hospital, her family and friends continue trying to raise funds online to help offset some of her medical expenses.
More than $17,000 has been raised so far towards the family’s fundraising goal of $50,000 — but it’s still a long way away from the $500,000 total cost.
Source: CBC Canada
Thursday, April 24th, 2014
You’re waiting to make a left-hand turn, but a driver stops and waves you through. As you turn in front of him, he rams into you – and later tells the police he did no such thing.
It’s a classic scenario for auto insurance fraud, a crime that rakes in billions of dollars each year from insurance companies and innocent victims across the country.
It’s primarily perpetrated by organized crime, according to Rick Dubin, vice-president of investigative services for the Insurance Bureau of Canada. “They intentionally set up a collision and load up the vehicle with individuals so that when it’s done, they haven’t suffered any injury, but they all end up going to medical clinics claiming they’re injured in order to receive benefits,” he says.
Along with waving cars through on a turn, these criminals may also motion drivers to pull out of their spots in parking lots and then hit them, or cut in front of drivers and slam on the brakes to cause a rear-end crash. These collisions then look like they were the victim’s fault.
Clues that you’re a target include drivers who want to call emergency vehicles, especially an ambulance, for a minor crash; passengers who complain of neck or back injuries when paramedics show up; drivers with older cars whose insurance was recently issued; “witnesses” who suddenly show up in remote areas; and tow truck drivers who respond almost immediately and offer to take your car to a specific body shop.
That shop may then damage your car even more to increase the bill, or charge your insurance company for work it didn’t do, Dubin says. Meanwhile, the passengers will visit doctors who are in on the scam, and recommend unnecessary treatments for which your insurance company will pay. “We have identified well over 300 clinics throughout the Greater Toronto Area that we suspect insurance fraud is taking place,” Dubin says.
Meanwhile, the organized crime ring gets a kickback from everyone involved, including the tow truck, body shop, and clinics.
If you suspect a collision is staged, Dubin says to call the police to the scene even if the crash is minor. Call your insurance company as soon as possible and alert them.
They can recommend trusted body shops to repair your vehicle. If you suspect insurance fraud at any time, you can call anonymously to 1-800-661-6844 or your local Crime Stoppers.
Excerpted article written by Jil Macintosh
Wednesday, April 23rd, 2014
Recently in Southern California, a drunk driver killed 6 people including an entire family. In this tragedy, a young 21 year old woman, Olivia Carolee Culbreath had just had a girl’s night out with her 2 friends. She got behind the wheel of her Camaro and somehow ended up driving on the wrong side of the highway when she collided head-on to a SUV filled with a family.
The sole survivor of the accident was the drunk driver. The passengers of both the SUV and the Camaro were pronounced dead at the scene. California Highway Patrol found evidence of alcohol across the highway and had Culbreath arrested. She’s currently awaiting trial for the deaths of 6 people and is facing life sentences. Further reports state that Olivia had previous convictions as a minor for another DUI charge. As a repeat offender, what can we learn from this young woman’s mistakes? How do we keep the highways and roads safer?
According to the CDC, in 2010, 10,228 people were killed in Alcohol related traffic crashes. That accounts for over a third of traffic related deaths in the US. It’s well known that Alcohol will impair your driving and decision making abilities. It’s very possible to be impaired two to three times the legal limit and not know it.
Drunk drivers like Olivia Culbreath don’t know how intoxicated they really are. What do you do to prevent situations like this from happening? There is no sure answer to that. North American roads have gotten increasingly dangerous with the threat of drunk drivers. Distractions that are presented in modern day cars combined with alcohol can be a very deadly mix on the highways. What can you as a person do to increase safety on the road?
With technology like Cellphones, GPS, and other things available, it’s hard enough to not have any distractions while driving. There is also the risk of intexicated drivers. An estimated 421,000 people were injured in distracted driving.
We’ve helped create a small list of 3 important things we think every responsible driver should do to help keep the streets safe.
1. Report drunk drivers on the road. It’s important to keep the roads safe. If you see any drunk drivers driving around on the road, Remember that you might be saving a life and preventing a tragedy like Olivia Cuthbreath caused. For this type of tip, we like to assume the better safe than sorry approach.
2. Keep the distractions to a minimum. Try to remember that distractions like GPS, Cellphones, grooming, and other things should be done while your vehicle is stationary. Every time you break focus from driving your reaction time goes down. This creates danger on the roadways.
3. We understand the reality of life. Sometimes you are going to have a drink or two. When you do, you just ask that you do so responsibly. Drinking and driving is definitely the easiest way to ruin your life. With so many harsh penalties and fines imposed on those caught, it’s not worth risking your future for.
Tuesday, April 22nd, 2014
To Ask about identity theft insurance If you’re freaked out by the security threat posed by the Heartbleed bug and are considering identity theft insurance, here are five questions to ask: 1 Is it worth it? The insurance doesn’t protect you from becoming a victim. It also doesn’t cover the money stolen from you. It simply covers the expenses that you’ll incur when dealing with the problem.
The coverage is often tacked onto your home insurance policy; State Farm, for example, offers identity theft insurance coverage for about $25 a year extra on existing plans. If you opt for the coverage, find out about the deductible. Some identity theft insurance policies do not have a deductible while others make you pay the home insurance deductible.
2 What kinds of expenses does the identity theft insurance policy cover? Policies will often cover you for expenses including long-distance charges, registered mail, notarizing documents, loan re-application fees and even a certain number of credit reports. TD, for example, covers you for up to $30,000 in expenses. However, find out if the policy also covers legal fees. “If you’re obligated to write to a court or issue some declarations under oath, you may have to visit a lawyer,” says Pete Karageorgos of the Insurance Bureau of Canada. “That battle of reclaiming your identity isn’t cheap.”
3 Will the policy cover you if you need to miss work? Some victims spend hundreds of hours clearing their names, says the Identity Theft Resource Center, a not-for-profit United States organization that researches and fights identity theft. If you need to take time off from work to clear up the financial mess, find out if the insurance policy will reimburse you for lost income.
4 Does the policy include support? With TD’s Identity Plus Advantage for example, a case manager helps you restore your credit and reputation; tasks include contacting the financial institutions and companies and relevant authorities on your behalf. Banks also offer identity theft assistance to cardholders. BMO cardholders, for example, can tack on extra services, including IDefense Plus ($8.99 per month) which provides monitoring of your personal information online and access to a “guided restoration team” which will give you step-by-step support in the event of your identity being stolen.
5 What about credit monitoring? Both Equifax and TransUnion provide free copies of your credit report upon request by mail. However, for $16.95 a month, TransUnion provides unlimited credit monitoring and automatic alerts. You can also request that a fraud alert be placed on your report.
Source: The Star Phoenix
Tuesday, April 22nd, 2014
Flooding worries are on many minds following the dramatic events in Sherbrooke, Quebec last week and as rain starts to fall in Alberta this spring. But homeowners looking to insulate themselves from flood damage can’t look to Canadian insurance companies for help.
According to the Insurance Board of Canada, 61 per cent of Canadians think their home insurance covers them in case of overland flooding.
Sixty one per cent of Canadians are wrong
The IBC’s Pierre Babinksy says insurers in Canada don’t offer protection against flooding because they think floods, unlike fires, earthquakes or hurricanes, are what he calls “certainties.”
“It’s very difficult to assess the risk in order to quantify it and in order to capitalize accordingly cover any damages that would be incurred,” he says.
However, flooded homeowners can usually seek assistance from their municipalities, which are in charge of distributing federal and provincial flood aid.
Babinsky does encourage homeowners to contact their insurers in all cases of water damage in order to see if they are eligible for reimbursement.
Source: CJAD News
Tuesday, April 22nd, 2014
In order to qualify as a motor assisted cycle and avoid the need to buy licence and insurance the machine must meet a number of qualifications. These include an electric motor with a power output of 500 watts or less and a top speed of no more than 32 km/h on level ground. The most important feature is that it must have pedals to allow you to pedal it!
There has been some past confusion in the traffic courts about whether modified motor assisted cycles require insurance and licence. You may recall the case of R v Ryan where Judicial Justice of the Peace Gordon held that a bicycle with a gasoline engine could not be licenced and insured, so it must not require them, finding Mr. Ryan not guilty. Subsequent decisions have followed provincial court rulings and resulted in convictions.
With this in mind, think twice before you take the pedals off or create something that will put your bank account in jeopardy.
Cst. Tim Schewe (Ret.) runs DriveSmartBC, a community web site about traffic safety in British Columbia. For 25 years he was an officer with the Royal Canadian Mounted Police, including five years on general duty, 20 in traffic and 10 as a collision analyst responsible of conducting technical investigations of collisions. He retired from policing in 2006 but continues to be active in traffic safety through the DriveSmartBC web site, teaching seminars and contributing content to newspapers and web sites.
Thursday, April 17th, 2014
The National Hockey League was sued by an insurer seeking to limit its duty to defend the league in lawsuits alleging it concealed the long-term effects of concussions and failed to warn players of the risks.
TIG Insurance Co., a Manchester, New Hampshire-based unit of Fairfax Financial Holdings Ltd. (FFH), filed the suit yesterday in New York State Supreme Court in Manhattan on the eve of the NHL playoffs, the annual tournament for the Stanley Cup.
The NHL faces two lawsuits from former players who accused the league of concealing the risk of severe brain injuries. The suits, filed in federal courts in Washington in November and New York on April 9, followed the National Football League’s decision in August to pay $765 million to settle litigation over concussions.
TIG issued liability policies to the NHL and affiliates that were in effect for various periods from 1989 to 2001, according to the filing yesterday. The insurer is seeking a declaration that any past or future duty to defend the league may be limited or precluded because the NHL may have failed to comply with the conditions of the policies, which don’t provide coverage for intentional wrongdoing or bodily injury that was “expected or intended,” according to the suit.
Frank Brown, a spokesman for the NHL, declined to comment on the insurers’ lawsuit in an e-mail.
The case is TIG Insurance Co. v. National Hockey League, 651162/2014, New York State Supreme Court, New York County (Manhattan).
Excerpted article written by Chris Dolmetsch, Bloomberg