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A Drunken Push Leads to Over $500,000 in Consequences

Thursday, October 8th, 2015

A Drunken Push Leads to Over $500,000 in Consequences – ILSTV.com

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

In a stark example of the profound consequences that can come from a modest confrontation, damages of $553,000 were ordered to be paid after an intoxicated groom to be pushed a man that was teasing him.

In today’s case (Robinson v. Bud’s Bar Inc) the Defendant, a groom to be who was “exotically dressed and wearing a ball and chain” following a bachelor party, was approached by the Plaintiff and teased about his upcoming marriage.  Both parties were intoxicated.  The Defendant responded by pushing the plaintiff who fell down, struck his head on the ground, and suffered a permanent brain injury.

The Court assessed damages at $790,000 but then reduced these by 30% for the Plaintiff’s contributory negligence and provocation.  In reaching this split of fault Mr. Justice Sigurdson provided the following reasons:

[140]     I find on the evidence that both men were intoxicated. I find that the plaintiff came up to the defendant Leelund Turner and teased him and persisted to do so despite being told to leave and being asked by his friend or friends to get going. I do not conclude that the defendant Leelund Turner held the plaintiff before pushing him as counsel suggested. I find the plaintiff had a reasonable opportunity to extricate himself from the situation. The plaintiff could easily have walked away but the plaintiff persisted to tease Leelund Turner. The push was sudden and careless but it followed the Leelund Turner’s plea to Mr. Robinson to leave him alone.

[141]     I find that in these particular circumstances the defendant Leelund Turner has satisfied me that the plaintiff was both contributorily negligent and provoked the negligent push. In these particular circumstances the concepts overlap to a degree. While I recognize that alcohol consumption is not itself negligence, here I find that the plaintiff was intoxicated to the extent that he persisted to be rude to the defendant Leelund Turner in close quarters despite being told to back away by Leelund Turner and being told by his friend that he should leave. I find that for Mr. Robinson to persist as he did to tease the defendant Leelund Turner at close quarters, he was partly at fault for the injury.

[142]     I think that the conduct of the plaintiff also amounted to provocation. While the plaintiff’s counsel says that the conduct does not meet the definition of provocation, I think in the circumstances of this case that it can easily be inferred from the evidence that the persistence of the plaintiff at close quarters that was rude and aggressive caused the defendant Leelund Turner to momentarily lose his power of self control and push the plaintiff abruptly, forcibly and carelessly away, resulting in the fall.

[143]     While I do not find that the defendant Leelund Turner has proven that had Mr. Robinson not been intoxicated, the drastic results of the fall would have been avoided, I think that Mr. Robinson must bear some responsibility because of his fault in approaching the defendant Leelund Turner and persistently teasing him at close quarters.

[144]     Accordingly although I find the defendant Leelund Turner liable, I find that both contributory negligence and provocation have been proven by the defendant Leelund Turner and that the damages incurred by the plaintiff as a result of the defendant’s negligence must be reduced by 30%.


Insurance Industry calls on Ontarians to install smoke alarms

Wednesday, October 7th, 2015

Insurance Industry calls on Ontarians to install smoke alarms – ILSTV.com

TORONTO, Oct. 6, 2015 /CNW/ – To help launch this year’s Fire Prevention Week, Insurance Bureau of Canada (IBC) is reminding people about its top 10 tips for preventing fire and saving lives. This year’s theme is “Hear The Beep When You Sleep. Every Bedroom Needs a Working Smoke Alarm!”.

“Roughly half of home fire deaths result from fires reported at night between 11pm and 7am,” said Doug DeRabbie, Director, Government Relations, IBC. “This Fire Prevention Week we are asking Ontarians to make sure they have working smoke alarms in place to keep their families safe.”

1.    Install and regularly check smoke alarms  

  • Install smoke alarms in every bedroom, outside each separate sleeping area and on every level of your home. Larger homes may need more alarms
  • Remove dust, check batteries when the clocks change in the spring and fall, test regularly and replace at least every 10 years

2.    Create an emergency preparedness plan for your family

  • Develop an emergency preparedness plan and fire evacuation plan, practise executing it and stick to the plan in an emergency

3.    Frequently inspect and clean chimney flues

  • Ensure there is no blockage or buildup that could cause a fire

4.    Install proper light bulbs

  • Never use light bulbs with a higher wattage than the maximum indicated on the fixture

5.    Monitor heated appliances and decor

  • Properly use and watch portable heaters, ensure lint is removed from the dryer, never leave an iron unattended and keep an eye on burning candles

6.    Be careful when cooking

  • Use your kitchen safely, especially when deep-frying or cooking with flammable oils

7.    Properly store flammable materials

  • Keep gasoline, solvents, waste and other materials that could ignite at a distance of at least 10 meters from your home

8.    Remove dry leaves and debris

  • Keep leaves, other dry materials and potentially flammable garbage away from the exterior of your house, especially if you have wood or vinyl siding

9.    Prepare and update a home inventory

  • Make a list of what you own, including the value of each item; take photos or make a video of your belongings; and update the list regularly

10.  Assemble a disaster safety kit

  • Prepare a basic kit of food, water and other necessities that will last at least 72 hours in the event of an an emergency

Ontario: Lawyers key in fight against motor vehicle insurance fraud

Tuesday, October 6th, 2015

Ontario: Lawyers key in fight against motor vehicle insurance fraud – ILSTV.com

Written By Chella Turnbull | Law Times

In a shocking criminal trial earlier this year, the Ontario Superior Court found a Peel police officer guilty of creating nine false motor vehicle accident reports for a fee (see R. v. Watson).

These accidents never happened. A tow-truck driver, who was a childhood friend of the officer, hired people to claim themselves as vehicle occupants who then put forward fraudulent insurance claims with cars brought to a secluded yard at night and crashed together to create damage. All told, insurers paid out almost $916,000 to the fraudsters and $272,000 in medical and legal expenses.

Last month, the court sentenced the offending officer to five years in jail for his part in the scheme.

Fraud also often takes the form of induced collisions involving innocent motorists. The Insurance Bureau of Canada’s investigative services team describes several typical scenarios. A swoop and squat involves the scammer pulling a vehicle in front of another car and slamming on the brakes to ensure the driver behind doesn’t have time to stop. A drive down takes place in a parking lot when a fraudster waves another vehicle to back out of a parking spot and then intentionally drives into it. In a left-turn bullet, an innocent driver is waiting to make a left-hand turn. The scammer approaches, waves at the driver to go ahead, and then intentionally drives into the vehicle. The innocent left-turning driver takes the blame.

The concern is that organized crime rings run much of motor vehicle accident insurance fraud. These rings may involve medical clinics, rehabilitation centres, paralegals, and practitioners such as chiropractors and massage therapists who bill insurers for treatment they never actually rendered.

“Organized crime, unfortunately, is very creative,” says Rick Dubin, vice president of the Insurance Bureau of Canada’s investigations unit.

“They keep changing their approach over time. But insurers are also getting better at fighting fraud. With the recent passing of Bill S-4, an amendment to the Personal Information Protection and Electronic Documents Act, insurance investigators can share information with other insurers if they have reasonable grounds to believe that there is fraud. Luckily, we have some effective new tools at our disposal.”

Three massive crime rings have emerged in the Greater Toronto Area in the past few years, each involving dozens of people. According to Dubin, certain people involved in a massive New York auto fraud crime ring may have entered Ontario and are suspected of links to several Toronto-area rehabilitation clinics.

Ben Kosic, chief executive officer of Canadian National Insurance Crimes Services, is no stranger to the tension between privacy concerns and fighting crime. His company is a relatively new data analytics business currently used by nine insurance companies making up about 75 per cent of Ontario’s market.
The company’s database takes claims information and then uses algorithms or rules to detect indicators of fraud with an alert sent to the insurer. The system doesn’t share personal information but instead uses a black box. Revisions to Ontario insurance claims forms provide for consent to this type of information sharing between insurers.

“Most people would probably consent to their claims information being shared if it leads to a reduction in fraud and, therefore, lower insurance premiums,” says Kosic.

“Currently, Ontario insurers could be losing up to an estimated $1.6 billion per year to auto insurance fraud and some believe that it’s even more.”

Lawyers and claims adjusters should watch for red flags denoting a possible fraudulent or induced crash.
A full vehicle may be a giveaway, especially if all occupants claim soft-tissue injuries. A vehicle containing occupants who have little to no connection to one another is another possible indicator of fraud.

Donald Dacquisto, a lawyer with Zuber & Co. LLP, says that if a defence lawyer finds a file to be suspicious, it will be important to question the circumstances. “They will obviously need to conduct a thorough examination for discovery on the issues surrounding the incident, even in a rear-end-type collision. The story of how the vehicle occupants came to be riding together and their personal relationships may prove to be implausible on careful examination. Even still, significant credibility issues are not sufficient to establish a staged accident, and we have to tread very carefully as lawyers with such assertions, as do the insurance adjusters, which makes it challenging.”

Canada might look to England for inspiration in the continuing fight against fraud. England has an Insurance Fraud Bureau devoted exclusively to investigations and enforcement. Its 2015 manifesto indicates that the fight against fraud begins at the front end with brokers. “The [bureau] is committed to supporting the counter-fraud capabilities of brokers. The most powerful weapon in the fight against insurance fraud is sharing information,” says director Ben Fletcher.

An indication of how seriously England treats insurance fraud is the recent case of a Gap model and football player who went to jail for two months for lying about her injuries. She filed a claim for whiplash, but investigators obtained photos of her skydiving and working out. She also posted announcements of her upcoming football matches and photos of herself riding a mechanical bull.

In Canada, the courts don’t often hand out jail sentences in these types of cases. As a result, it falls to defence lawyers to force the plaintiff all the way to trial. Such claimants often just disappear.

It’s important to get the message out that we must be vigilant. The more we discourage insurance fraud, the more we help to clear the way for genuine claimants with real injuries.


Former VW boss Winterkorn investigated for fraud

Monday, October 5th, 2015

BERLIN — The Associated Press

German prosecutors on Monday opened an investigation against former Volkswagen CEO Martin Winterkorn to establish what his role was in the emissions-rigging scandal that has shaken the world’s largest automaker.

The investigation will concentrate on the suspicion of fraud committed through the sale of vehicles with manipulated emissions data, and aims to determine who was responsible, prosecutors in Braunschweig said in a statement.

In the German system, anyone can file a criminal complaint with prosecutors, who are then obliged to examine it and decide whether there is enough evidence to open a formal investigation.

In this case, following the revelations about the rigged tests, prosecutors in Braunschweig, near VW’s headquarters in Wolfsburg, received about a dozen complaints, including one from Volkswagen itself, said spokeswoman Julia Meyer.

She said it was too early to say if and when prosecutors may try and interview Winterkorn himself, and that she did not know whether he already had an attorney to represent him.

She said at this stage, she could not estimate how long the investigation would last.

“This is a very broad case and in other such investigations it has taken many months, sometimes years,” she said.

Winterkorn, Volkswagen’s CEO since 2007, resigned Wednesday — days after the world’s top-selling carmaker admitted that it had rigged diesel emissions to pass U.S. tests during his tenure. He said that he was going “in the interests of the company even though I am not aware of any wrongdoing on my part.”

Under German law, it is not possible to bring charges against a company, only against individuals. Meyer would not elaborate on specifics of the investigation, and it wasn’t clear what Winterkorn’s suspected role might be. There was no immediate comment from Volkswagen on the prosecutors’ decision.

Fraud can carry a prison sentence of up to 10 years in Germany.

The head of VW’s Porsche division, Matthias Mueller, was appointed Friday as Volkswagen’s new CEO. He promised to do everything to win back the public’s trust.

The company has admitted that it used a piece of engine software to cheat on diesel car emissions tests in the U.S. It will have to fix programming it has said is in some 11 million cars worldwide, far more than the 482,000 originally identified by U.S. authorities.

Details on what cars are involved have emerged gradually. The group, which has 12 marques in all, said Friday that some 5 million cars made by its core Volkswagen brand had the diesel engine in question.

On Monday, Audi said that 2.1 million of its vehicles also had the engine, while Czech-based Skoda said 1.2 million vehicles were affected.


Opinion: B.C. car insurance not so bad after all

Sunday, October 4th, 2015

By Monique Keiran | Time Colonist

When ICBC and Transportation Minister Todd Stone announced they were going to work to find ways to reduce the proposed increase to B.C. vehicle-insurance rates, a wee flame of hope sparked inside the brains of B.C. drivers. Nobody likes rate increases.

The 6.7 per cent hike the Insurance Corp. of B.C. said it would need to cover the past year’s jump in injury claims represents just one more hit in the upward trending cost in this area.

Insurance in B.C. is said to be among the most expensive in Canada. The lack of competition is touted as the reason. Drivers in B.C. can purchase extras from other insurance agencies, but they must get their basic insurance from ICBC. Without market competition, rates start high and stay high — higher than drivers pay elsewhere in Canada.

Or so the reasoning goes.

A friend’s experience belies that commonly held belief. She moved to Alberta early this year. Within two weeks of her arrival, a speeding pickup truck lost control on an icy highway west of Edmonton and totalled her five-year-old car. Everyone walked away unhurt, fortunately.

When she got the go-ahead from the insurance company, my friend bought a used car. She replaced her Toyota with a Mazda of similar design, vintage and kilometres.

She left B.C. with a clean driving record. The police who investigated the crash declared the other driver at fault. The other driver admitted to driving too fast for road conditions. The insurance companies inspected the vehicles and agreed with the cops’ report.

Yet, in the land of opportunity, free-market competition and no provincial sales tax, my friend paid almost twice as much to insure her new old car as she paid in Victoria last year, when her old car was one year and 15,000 kilometres younger.

Perhaps the difference is the price of owning a car in a province with roads that are icy for six to eight months each year — compared to six to eight hours each year. Perhaps it’s the price of driving in a province teeming with pickup trucks and SUVs often driven at speeds well above the posted limits — compared to hordes of electric and hybrid cars that rarely leave their driveways here.

Perhaps it’s the price of insurance in a province that pays some of the country’s highest wages, driving up other costs — compared to a city where workers accept depressed wages just to stay here and endure Victoria’s high cost of living.

Or perhaps it’s the price of market-driven pricing.

I ran a quick comparison through an online insurance estimator. It informed me I would pay $65 more per year in Alberta than I pay here for comparable insurance.

My friend tells me she can accept the higher insurance, but the hassle she endured grates. When you buy a car in Victoria, if you have existing vehicle insurance, you can get a licence plate and interim insurance on your new car from the dealer. You can drive your vehicle off the lot within an hour or so of paying and signing the papers, and head straight to your insurer’s office.

In Edmonton, my friend faced:

1. Purchasing the car at the lot, then

2. Finding a private registry agent to register ownership and get plates, then

3. Shopping around for insurance, which required many telephone calls because online quotes differed from those provided by a person, then

4. Going in person to an insurance office to buy insurance, then

5. Returning to the dealership, with required documents and plates, to pick up her car and drive away.

In the end, my friend combined numbers 2 to 4 by dealing with Alberta’s automobile association, but at the cost of higher insurance premiums. It still took her most of the day, and required about $100 in cab fare.

A 6.7 per cent rate increase is substantial, and we needn’t be happy about it. But when comparisons with other provinces are trotted out, we need to remember more is going on than the pundits acknowledge when you cross the border and buy insurance.

At least ICBC makes the process easy.


Insurance claim denied after dog’s costly surgery

Thursday, October 1st, 2015

Emerson Brito, CTV Toronto

A man who thought he and his dog were covered through pet insurance has to pay for his pet’s surgery.

Greg Longo wanted to cover his purebred English bulldog Winston with pet insurance because he wanted to be “a responsible pet owner,” he told CTV News.

Insurance premiums cost him $65 a month until he switched insurance companies. Longo now pays $35 a month with his current company, 24PetWatch.

It seemed like Longo made the right decision when Winston had a health scare this past summer.

The bulldog had an abscess, a buildup of pus within an area of body tissue, pushing up against his brain, which required emergency surgery.

“They had to remove the entire ear canal because of the possible damage it could’ve caused,” said Longo.

The procedure cost more than $7,600.

Longo made a claim to his insurance company to have the surgery covered. His claim was denied.

He was told the cost of the surgery wouldn’t be covered because of a previous infection in Winston’s other ear.

The claim denial shocked Longo. He resubmitted his claim, and says he wants nothing more than what he paid for the surgery.

“They should definitely step up… I want 80% to the maximum of what my coverage is,” said Longo.

24PetWatch’s parent company is Pethealth Inc.

Pethealth Inc.’s President of Insurance Mike Wallace told CTV News the company doesn’t “comment on claims, particularly ones that are still in progress. All decisions are made based on the records and documents submitted to us.”

Pethealth Inc. said it paid out more than $40 million in claims last year to pet owners.

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