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Manitoba: Brunkild couple sue insurer claiming costs to rebuild after fire undervalued

Tuesday, March 31st, 2015

By Caroline Barghout, CBC News

A Manitoba couple has filed a lawsuit claiming their insurance coverage wasn’t enough to rebuild a burned-down barn and arena used in their thoroughbred horse business.

Jane Gammon and Tom Dodds, who’ve been training thoroughbreds for nearly 30 years, opened a boarding and training centre for horses on their Brunkild property in 2001. They also built a barn and riding arena and had it insured. 

But their barn and arena burned down on October 16, 2010 and they declared a total loss. The couple also lost a horse and barn cat in the blaze. Believing their coverage would be enough to rebuild their business, Gammon and Dodds put down a $13,200 deposit with a contractor. They later learned it would cost far more to replace their barn and area than the amount they were insured for.

“I thought replacement cost was replacement cost. Like we have replacement cost insurance. Someone swipes your TV. You have replacement cost, [you] get a new TV. I mean, I know it’s all different now but at the time, that’s what we thought,” said Gammon. 

Replacement cost had upper limit

Their policy provided replacement cost coverage on their barn and arena to a limit of $129,000, but the couple says it would have cost $186,252 to rebuild it. And that didn’t include the $12,500 to clean up the debris left on their land after the fire. 

“Basically the price that they gave us, that only was the shell. In the end, that’s all it covered. That’s uninsulated, no stalls, no electricity, no footings, just nothing,” said Dodds.  

Dodds and Gammon said their broker didn’t account for the horse boarding stalls that were in the barn, or for the “footings,” a soil fill the thoroughbred trainers had lined the arena with for the horses to ride on.  

“To rebuild we would have had to haul back in 18 semi loads of clean footings,” said Gammon.

The couple also didn’t have business interruption insurance.

“They could have offered us that. You could say yes or no, but they could offer it. There’s clean up costs like a rider so that that wouldn’t come out of your rebuild cost. But all that stuff, like why not just explain it?” Gammon asked.

Couple asked if they had right insurance

They have filed a statement of claim for $84,100 against MIG Insurance Group Ltd. Their insurance policy is with Red River Mutual but their broker was employed by MIG. MIG is a network of insurance brokers that provides insurance services to clients throughout rural and urban areas of Manitoba.  

In the fall of 2005, Gammon and Dodds contacted Red River Mutual to make sure they had the proper coverage on their home business.  

“Everybody gets their renewal every year and you look at it and you go ‘OK.’ You write the cheque to Red River or whoever. That’s it. And then we thought, how do we know? How do you know it’s the right insurance? So that’s why we asked them,” said Gammon.

Up until then, Dodds had been earning an income outside the home working as a thoroughbred trainer at the racetrack. But Dodds was planning to retire so that he could concentrate on training horses at the arena and farm he owned with Gammon. The couple wanted to be sure they would be adequately covered if anything happened to their business.

‘It was all good till it burned down.’

“I would think it’s every horseman’s worry. Barn fires are a nightmare so you always, whenever it would storm I would always look out the window down at the barn and, you know, worry like, you know you just don’t know,” said Dodds.

Dodds and Gammon told Red River Mutual they questioned their coverage because their broker had never been to their farm to do an appraisal. They say Red River told them to contact a rural broker, which they did.  

Over the course of three years, they changed brokers on two separate occasions because neither came to their land to do an appraisal.  Finally in 2008, they met with a broker who agreed to come to their farm to do an in-person assessment.

“He measured the buildings. He took pictures. He goes back to the office. He comes back with an amount. He’s the expert. We’re not. You go, ‘Perfect.’ And it was all good till it burned down,” said Gammon.  

Insurance company defends its work

MIG lawyer Bill Gange said he is somewhat restricted in what he can say because the matter is before the Court of Queen’s Bench.  

“I can advise however that MIG Insurance Group feels that it performed its duties as a broker correctly.” said Gange.

He said before the fire, Gammon and MIG discussed the values of insurance to be placed on the buildings. Gammon agreed to the values discussed.  

“After the loss, the insured was compensated, and accepted the compensation, through the insurance contract,” said Gange.  

“The amounts paid out were consistent with the values discussed and agreed upon by Ms Gammon,” Gange continued.

The Insurance Council of Manitoba says brokers rely on online calculators to determine the rebuild value of homes and businesses.  

“They also rely on the consumer in terms of providing updated information with respect to renovations or improvements because that can, of course, impact on the replacement or cost to rebuild of a home,” said  ICM Executive Director Erin Pearson.

Undervalued properties add up to billions: magazine

Pearson said the calculator is assumed to be accurate at the time it’s offered but acknowledged that there are concerns throughout the insurance industry about its limitations.  The calculator can’t take into account changes in the environment, the cost of building materials or the availability of labour.

“There are lots of different things that can impact on the cost of building a home and the calculator itself is of course static and doesn’t react as quickly as perhaps the environment would like it to,” said Pearson.

According to a 2010 article published in Canada’s Insurance and Risk Magazine, Canadian Underwriter.ca, it’s estimated that homes and commercial properties in this country are undervalued by approximately $11 billion.  

“SCM Risk Management Services suggests that 70 per cent of existing policies are under insured by 33 per cent, resulting in the above-cited shortfall in a variety of potential total loss scenarios,” it said.

Guaranteed replacement cost recommended

Heather Mack, director of government relations for the Insurance Bureau of Canada, says if you have guaranteed replacement cost, then your home or property is re-built even if it was undervalued.

“Consumers don’t often realize how much it would cost to repair and rebuild a home,” Mack said. “Generally in Canada, we don’t have great financial literacy. But then when it comes to insurance it’s a lot worse. If you don’t have guaranteed replacement costs, you’d have to be pretty darn exact on the rebuild and that takes a lot more work.”

Mack also said some homeowners are signing contracts without reading it entirely.


NZEVs in My Neighbourhood – What does this mean? #RoadSafety

Friday, March 27th, 2015

NZEV Sign
I saw a new sign beside the road in my neighbourhood last week: NZEV Zone Begins. This means that I might now encounter Net Zero Emission Vehicles in my local travels. Also known as Low Speed Vehicles (LSV) or Neighbourhood Vehicles, these electric vehicles are designed to operate at speeds of 40 km/h or less.

NZEVs are vehicles that bear a national safety mark issued by Transport Canada. They must meet minimum safety levels which include: headlights, turn signal lamps, mirrors, parking brake, glazing requirements for a windshield and have seat belt assemblies present. Finally, there is the maximum speed capability of 40 km/h.

These low speed vehicles may be operated on provincial roads under authority of a permit issued by the local office of the Ministry of Transportation and Infrastructure. They may also be driven on municipal streets with speed limits of 40 or 50 km/h if the municipality has authorized it through a bylaw. You must have a valid driver’s licence and insurance and licence plates from ICBC.

An NZEV may be a golf cart, but a golf cart is NOT an NZEV! They don’t bear the required safety mark and they do not meet the safety requirements, so a golf cart cannot be operated under the same conditions as an NZEV.

In light of the current slow vehicle keep right issues in the public eye, one wonders why a NZEV whose speed tops out at 40 km/h is allowed on a road with a posted speed of 50 km/h. Our NZEV zone contains a lot of winding road with double solid center lines. Will there be many violations of the no driving on the shoulder or pass over solid double line laws? We’ll see.

Reference Links:

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.


Report warns, connected cars perfect for harvesting personal data

Friday, March 27th, 2015

By CBC News

As our cars get more high-tech and connected, they are increasingly spying on us and sending personal data about us to many different parties — in violation of Canadian privacy laws, a new report warns.

Regulators need to step up and protect the privacy of car users at a time when the range and amount of potentially sensitive — and commercially valuable — data being collected by cars is growing, says a study funded by the Office of the Privacy Commissioner of Canada and released today by the B.C. Freedom of Information and Privacy Association.

‘In the frenzy to take advantage of this new technology … automakers and their corporate partners appear to have ignored Canadian data protection laws.’– FIPA report

The report titled “Connected cars: Who is in the driver’s seat?” was unveiled at the Vancouver Auto Show.

The group notes that “most, if not all” new cars being sold in North America now have at least some wireless connectivity, and “fully” connected cars are expected to dominate the market in the next few years.

“With connectivity, cars are becoming highly efficient data harvesting machines,” says the report, citing a wide variety of data collection systems such as:

  • Vehicle performance monitors that transmit information about vehicle health and driver behaviour wirelessly to computers used by car dealers and mechanics.
  • Navigation systems that record the vehicle’s location and the routes it has taken.
  • Telematics systems that collect information on driving behaviour and send it to insurance companies to deliver new “usage-based insurance.”
  • Infotainment systems that can collect information about personal communication, web browsing data, personal contacts and schedules, and preferences with respect to music and video content.

While those systems offer “undeniable benefits” to car owners and drivers, the data they generate is extremely valuable to insurers, governments and law enforcement agencies, and companies that might be interested in tracking and profiling users for target marketing and other purposes.

“In the frenzy to take advantage of this new technology and keep up with the competition, automakers and their corporate partners appear to have ignored Canadian data protection laws,” the report says. In fact, “automakers are failing to meet their legal obligations under almost every principle of data protection law.”

An Acura RLX sedan tows another with Honda’s virtual tow technology that creates a wireless link between two cars. Systems that enable vehicles to communicate with each other have been developed in recent years and ‘fully’ connected cars are expected to dominate the market in the next few year. (Rebecca Cook/Reuters)

For example, many service providers required customers who sign up for a service to agree to the use of their personal data not just for delivering the service, but also for marketing, product developing and “business purposes.”

That violates Canadian laws that require clear, informed consent for the use of any personal data for secondary purposes such as marketing, the report says.

The authors also raise concerns about the fact that unnecessary data is being collected and kept for an indefinite period of time, putting car users at risk of having their personal data hacked and stolen.

The report recommends that governments bring in data protection regulations that are specific to the connected car industry.

For example, it suggests, there are already limits on the use of data collected by “event data recorders” that collect information about conditions that could precede a crash. New laws should also ban that type of information from being disclosed wirelessly.

Policy-makers,” it said, “have to provide the guidance that the automotive industry desperately needs on how general principles of data protection apply in their sector.”

Mark Nantais, president of the Canadian Vehicle Manufacturers’ Association, said the group looks forward to reviewing the paper in detail and engaging in further discussion.

“CVMA members are fully committed to protecting their customers’ privacy and complying with Canadian privacy laws,” he added.

Source: CBC News


If cars don’t need drivers, do drivers need insurance?

Friday, March 27th, 2015

by Nova Safo | Marketplace 

As driverless cars go from science fiction to fact, the multi-billion dollar auto-insurance industry is trying to figure out how not to be run off the road.

Today, 90 percent of car crashes in the United States are due to driver error. But that percentage could plummet as  autonomous and semi-autonomous technology makes driving safer.

The Insurance Institute for Highway Safety says that if all cars had some semi-autonomous systems, such as collision- and lane-departure warning systems, nearly a third of all crashes would be eliminated.

And with fewer crashes come fewer losses for insurers to cover and declining premiums,  says Donald Light, who researches the impact of technology on insurance at the consulting firm Celent.

“The overall size of the automobile insurance industry, over say a  ten-to-15-year period, is definitely going to shrink,” says Light.

Auto-insurance premiums totaled about $200 billion in 2013. Light predicts that amount eventually could by up to half.

“The amount of losses are going to be a lot less and the premiums are going to be a lot less,” he says.

And safer, automated cars will not impact just the auto-insurance industry. There will be fewer injured drivers, less need for repairs and lower demand for replacement parts and roadside assistance.

Senior Vice President of Strategy Jeffrey Blecher of Agero, a roadside assistance and data-analysis company, says that the insurance industry is already adjusting its business model.

“The whole concept of usage-based insurance is understanding driver behavior and driver risk,” says Blecher. “But when you get into a semi-autonomous car, what are you assessing? Are you assessing how the car drives?”

Agero is working with auto insurers to provide them with driver data collection tools, to find new ways of assessing risk and pricing premiums, and to create a research initiative to figure out safety questions with autonomous driving systems.

These are things the industry will have to figure out soon, says Blecher. That’s because even if fully automated cars aren’t yet zipping on highways, partially automated cars are already here.

Tesla has added an auto-pilot feature to its electric cars. Mercedes, BMW and Volvo have some automation as well. And Cadillac, Ford, GM and Nissan have all announced some amount of automation in their cars to come by 2020, at the latest.

“And what we don’t know is do these systems actually improve safety or not? That’s one of the fundamental questions,” says Blecher.

That is exactly the question that Neville Stanton has been working on for about 20 years. He researches the safety of car automation systems at the University of Southampton in the UK.

Stanton has found that how safe a car is depends on how automated it is. And too much automation, he’s found, is actually less safe.

“It takes drivers five times as long to respond in emergency in a fully automated vehicle as it does in a manually-controlled vehicle,” says Stanton.

But, Stanton says, new semi-automated cars, which include features such as collision and lane-departure warnings, and blind-spot monitoring, are safer, because the driver is still in control.

“So the driver’s still manually in control of the vehicle, but the automation’s been there to support them in that driving task. So it’s not taking over that driving task,” says Stanton.

But how safer self-driving cars will effect an auto-insurance industry where premiums are based on crashes, loss, risk assessment and human factors remains unclear.

“As long as you own a vehicle, there’s always going to be a need for some sort of liability insurance,” says Michael Barry, a spokesperson for the Insurance Information Institute, an industry group.

While drivers might need less coverage if cars are safer, Barry says, insurers may find other revenue streams. For example, carmakers might need more coverage.

“There’s product liability insurance today,” Barry says, “But it will take on added importance for the manufacturers of self-driving vehicles, if in fact they become the target of lawsuits as time goes on.”


$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries & Headaches

Friday, March 27th, 2015

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.

In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC.  The Defendant admitted fault.  The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve.  In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:

[3] The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder.  She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder.  She has suffered from headaches since the accident, some of which are debilitating…

[131] The plaintiff is a young woman.  More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches.  Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.

[132] The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]  She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134] She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.

[135] In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.


Pedestrian Struck In Cross Walk Faultless For Collision

Thursday, March 26th, 2015

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today addressing whether a pedestrian struck in a cross walk bared any responsibility for their collision.

In today’ case (Gulati v. Chan) the Plaintiff entered a crosswalk when the Defendant motorist coasted through a stop sign and struck the Plaintiff.  The Defendant admitted partial fault but argued the Plaintiff should shoulder 10-20% of the blame for failing “to avoid his on-coming vehicle which, he maintains, was a visible and foreseeable risk to her.”  In rejecting this argument and finding the Defendant fully at fault Mr. Justice Gaul provided the following reasons:

[23]  Mrs. Gulati says she looked to her right and left before entering the crosswalk. At that time, she did not see any vehicular traffic coming in her direction. When she was approximately half way across the crosswalk she saw Mr. Chan’s vehicle approaching the nearby intersection that was controlled by stop signs. According to Mrs. Gulati, the vehicle was approximately 4 to 5 car lengths away from her when she first saw it. To Mrs. Gulati’s surprise, the vehicle did not stop at the stop sign; instead it turned left and struck her while she was in the crosswalk.

[24] Mr. Leverett was standing at the southern end of the crosswalk, directly in front of the stop sign for the intersection. He saw Mrs. Gulati exit the Mall and stand at the northern end of the crosswalk. He saw her look both ways and then proceed into the crosswalk. According to Mr. Leverett, there was no vehicular traffic in the vicinity when Mrs. Gulati began to cross the road. Mr. Leverett saw Mr. Chan’s vehicle approach the stop sign. It appeared to Mr. Leverett that Mr. Chan was not paying attention to what he was doing, because his vehicle coasted through the stop sign. Mr. Chan’s vehicle then accelerated and collided with Mrs. Gulati who was still in the crosswalk.

[25] Constable Lorne Smith of the Surrey RCMP attended at the scene of the Accident shortly after it occurred. While he was there, he spoke with Mr. Chan. According to Constable Smith, Mr. Chan said he had been leaving the Mall’s parkade, had not seen Mrs. Gulati in the crosswalk and had collided with her when she suddenly appeared in front of his vehicle. The officer issued Mr. Chan a violation ticket alleging that he had been driving without due care and attention and had failed to yield to a pedestrian contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “MVA”). Mr. Chan did not dispute the violation ticket…

9] I accept the evidence of Mrs. Gulati and Mr. Leverett with respect to how the Accident occurred. In particular I am satisfied that Mr. Chan was not paying attention when he was driving and that he did not bring his vehicle to a stop when he should have. Instead, without any notice or warning to Mrs. Gulati who was legally crossing the road, Mr. Chan proceeded through the stop sign and turned left, leaving Mrs. Gulati with no time to react and avoid the collision. It was not unreasonable for Mrs. Gulati to believe that Mr. Chan’s vehicle would stop at the stop sign and it cannot be said that a reasonable person would have anticipated his decision to breach the rules of the road in the manner that he did.


Economical Insurance – Protect your home from melting snow and ice during the spring thaw

Wednesday, March 25th, 2015

Protect your home from melting snow and ice during the spring thaw, advises Economical Insurance

HALIFAX, NS, March 24, 2015 – With above-zero temperatures in the forecast for much of the Maritimes in the coming days, the snow and ice that have wreaked havoc this winter will begin to quickly melt.Economical Insurance advises homeowners to take precautions to ensure their basements and garages don’t become flooded from the melting snow and ice.

If you suspect your property has been damaged, contact your broker right away. Provide as much detail as you can, including photos of the damage.

Here are a few simple things homeowners can do to protect their property from water damage as the snow and ice melt:

  • If excessive snow on the roof poses a risk to the home, considering getting professional assistance to have it removed safely
  • Clear the area where downspouts discharge and create a path for water to flow away from your home
  • Remove snow that has accumulated from around basement windows and door openings, including the garage
  • Clear walkways and driveways of snow and ice to prevent slips and falls
  • Ensure sump pumps are in working order and monitor them regularly
  • Ensure your furnace and hot water heater vents on the side of your home are unobstructed
  • Be sure that any exterior drains on your property have clear access for snow melt runoff
  • If you feel your basement is vulnerable to water damage, consider elevating electronics and valuables off the floor
  • Be a good neighbour and clear street drains near your property so snow melt has a place to run off without being redirected towards homes.

About Economical Insurance
Founded in 1871, Economical Insurance is one of Canada’s leading property and casualty insurers, with $2.0 billion in annual premium volume and $5.2 billion in assets as at December 31, 2014. Based in Waterloo, this Canadian-owned and operated group
services the insurance needs of more than one million customers across the country. In 2010, Economical announced its decision to become the first federally-regulated mutual property and casualty insurance company to pursue demutualization. Economical Insurance conducts business under the following brands: Economical Insurance, Economical, Western General, Economical Select, Perth Insurance, Family Insurance Solutions, Federation Insurance and Economical Financial.


Bring Back Automated Speed Enforcement

Friday, March 20th, 2015

According to B.C.’s new 10 Year Transportation Plan, safety on British Columbia’s highways and side roads is the ministry’s number-one priority. Four pages of the 56 page report are dedicated to the topic. Aside from physical infrastructure improvements and singling out left lane hogs for special attention, only the slow down move over law is mentioned. My wish is that the province would bring back automated speed enforcement.

I’m not going to advocate for the photo radar program that the current government scrapped, but for time over distance or section control of vehicle speeds. Instead of an instantaneous check of velocity, vehicles are recorded when they enter and when they leave a highway segment. If the vehicle’s average speed in the segment is over the posted speed limit enforcement action is taken. Momentary inattention is not penalized, but consistent inability to follow the limit is.

This type of automated enforcement is in use in Europe and the European Transportation Safety Council reports that “The majority of evaluations of sites using section control show evidence of reductions in average and 85th percentile speeds, most often indicating that these speeds were reduced at, or below, the posted speed limit.” Examples of significant reductions in collision numbers, injuries and fatalities are given for the various member countries that operate these systems.

I suspect that if drivers chose not to exceed the speed limits, the need to worry about left lane hogs mentioned in the plan would be reduced. Section control would also free police to focus on other behaviours that we like to complain that they should be doing instead of speed enforcement.


Cycling BC insurance ready for export to other provinces

Thursday, March 19th, 2015

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Source: Canadian Cycling Magazine

In summer 2012, Steve collided with a bus while riding in a mass-start event in Europe. “I pulled myself to the side. I didn’t know how hurt I was until I tried to get up. It looked like I was crossing my legs, but my knee wasn’t bent. My right leg was crossed to the left halfway through my femur,” he said.

Moments before the accident, he was trying catch on with a group of friends because he had lost some time. He didn’t realize that because it was later in the day, there would be traffic along the route. As he headed downhill into a tunnel, he was in the left lane to take the fastest line. He saw the bus and made a split second decision to hit it in the middle, hoping it wouldn’t be as bad as hitting it head on. He also wanted to keep from getting run over by the back wheels. The last speed his bike computer registered was 63 km/h, which was after some braking.

He was taken to hospital and had surgery. It was weeks before he made it home to Vancouver. He had credit card insurance coverage, a plan from his work and provincial health care. He thought all his medical needs, including rehab, were covered. They weren’t. When his credit card company learned he was doing a timed event, that made him ineligible for coverage. Steve was lucky following his accident in Europe. He later found coverage through another source. (He’s riding again, too.) But an insurance plan that understood his sport and his needs would have saved him a lot of worry.

Corey Tracey, sponsorship and business development manager at Cycling BC, is familiar with Steve’s story. Tracey has also come across insurance exceptions while riding abroad. “You have to be extremely careful with any supplementary insurance when you participate in a competitive event. If there’s a purse attached, insurers may classify you as a professional if you hurt yourself and need coverage, so that they can deny the claim. Or they may classify the sport as an extreme sport,” he said.

Because Tracey has seen Cycling BC members struggle with various exclusions and their misconceptions about coverage, he and the provincial cycling organization came up with an insurance plan that would cover members. The new plan, that was released this past October, provides riders with personal accident insurance specifically for cyclists. “If a rider gets hit by a car, gets teeth knocked out, has to take a couple of days off work or needs physiotherapy, there’s some coverage,” Tracey said. The plan is also meant to take the hassle out of following up on these claims. Car insurance can cover you in an accident, but the process can be difficult and long.

With Marsh Canada Ltd., Cycling BC has created three plans that Cycling BC members can buy. For $50 a year, a member can get $50,000 worth of coverage; for $75, $100,000; and for $100, $150,000. “It makes sense, when you are on a bike, to have something that protects you that’s not full of loopholes. It’s yours and it’s there for you,” Tracey said. It covers you all over the world. You can even ride in gran fondos. If you turn pro, however, you’ll have to get a new plan.

At the moment, the Cycling BC insurance is only available to its members. But Tracey says it can be available to others in Canada if their provincial organizations are interested. He’s ready to export. “We really want other provincial organizations to get on board with coverage like this, not just because it’s good for us as cyclists, but because, long-term, the more people purchase, better protection will be offered at a lower rate,” he said.


Facebook Posts Derail Personal Injury Claim

Thursday, March 19th, 2015

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Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released by the BC Supreme Court, Chilliwack Registry, rejecting aspects of a personal injury claim in part due to postings from the Plaintiff’s Facebook page.

In today’s case (Tambosso v. Holmes) the Plaintiff was involved in two collisions.  The Plaintiff claimed significant injuries and sued for damages.  Mr. Justice Jenkins accepted the Plaintiff suffered some injury in the collisions but largely rejected the Plaintiff’s claim.  In doing so the Court relied heavily on the Plaintiff’s postings on Facebook  which the Court found were “completely inconsistent with the evidence the plaintiff gave at trial”.  Mr. Justice Jenkins provided the following reasons:

[170] Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.

[171]  One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

[172]  It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.

[173]  Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab 1:

a) The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her  manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.

Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there  . . . with bells on!  xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.

b) Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.

c) The plaintiff’s Facebook posts continued through 2010 and 2011with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.

[174] I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.