Insurance News - Tuesday, December 30, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, December 30, 2014:

• Bill 15 changes to prejudgement interest calculations will become effective on January 1, 2015.
• Many ride-sharing drivers are perplexed by the mixed messages that they receive and therefore opt for silence when it comes to informing their insurers. The situation is becoming problematic as ride-sharing programs expand and drivers are having accidents.
• As Uber collects a mountain of data from its ride-sharing app, it is very likely that the information will be used to expand into services, such as moving goods not just people.
• Once you get passed the rhetoric, what has become clear is that Uber has exposed flaws in taxi services in Canadian cities. Consumers look forward to reforms.
• California’s Department of Motor Vehicles will miss a year-end deadline to adopt a new set of rules for driverless cars and other cars of the future because there’s still no certainty that driverless vehicles are safe.

Renter’s Insurer is First to Respond, Even if Only a Third Party

A recent decision of the Ontario Superior Court of Justice provides guidance as to whose insurer must respond first to a plaintiff’s claim in motor vehicle accidents involving rented or leased automobiles.

In Elias v. Koochek, 2014 ONSC No. 5003 (S.C.J.), the Court heard a motion involving a rental car accident. The passengers of the car brought a lawsuit naming the uninsured driver of the car (Koochek) and the owner of the car (Aviscar) as defendants. Aviscar then brought a third party claim against the renter of the car (Moshe). The court was asked to determine whether the renter’s insurer was required to respond first to the plaintiff’s claim.

In order to answer this question the court looked to section 277(1.1) of the Insurance Act and the corresponding provisions of the Ontario Automobile Policy. Section 277(1.1) provides for the priority in which available insurance policies are to respond to liability from the ownership or operation of a leased (rented) automobile. It states that the lessee’s (renter’s) policy is to respond first, followed by the driver’s policy and then the owner’s policy. This is an exception to the general rule in motor vehicle accidents that the owner’s policy is to respond first.

The renter argued that his insurance was not “available” because he was not named as a defendant in the main action. The court disagreed, and stated that making the availability of the renter’s policy dependant on whether the renter was named as a defendant or a third party would lead to inconsistent results and subvert the legislative intent behind section 277(1.1). The court said that while a claim does need to be made against the renter in order to trigger the availability of their insurance under 277(1.1), the procedural manner of pleading by which this claim is made is not relevant.

As such, the court found that the renter’s insurer did need to respond first to the plaintiff’s claim.

Why does OWCP claim not to have received my CA-1032 or other information?

When you send something to OWCP it is scanned to your file. The file contains both scanned documents and an index, or table of contents, that points to the documents received to your file. It is quite common for a CA-1032 or other document to be incorrectly indexed to your file. Your claims examiner will look at that index and not see that a CA-1032 form is listed and assume you did not return it. If you sent in the form and then get a letter saying your claim is going to be suspended because you did not return the form, you should call in and speak to the customer service representative or your claims examiner and ask them to look at the incoming documents scanned to your file around the time the "missing" document should have arrived, not just the index. Most likely it is there and was just not coded correctly when it was scanned.

Insurance News - Tuesday, December 23, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, December 23, 2014:

• Over $1 million in stolen vehicles recovered and 7 people charged as police investigation nabs international car theft ring operating in Toronto, York Region and Durham Region.
• It appears Uber may be telling its California drivers that personal rather than commercial auto insurance is sufficient leaving them uncovered and driving illegally.
• Google unveiled its first prototype of a fully-functional, driverless car which has actually been built on a patchwork of auto parts.
• Not a surprise that Google is also seeking an auto industry partner to develop its driverless car because it does not want to be a car maker.
• The Nova Scotia government has changed its position on a controversial lawsuit to clawback a settlement award for an catastrophic claim involving a young woman with a severe brain injury.

Senate fails to renew TRIA

The United States Senate has failed to renew the Terrorism Risk Insurance Act (TRIA) before its expiration on December 31, 2014. 

I offered my suggestions for amendments to TRIA here. 

Here's a sampling of articles on the effect of the failure to renew TRIA: 

Insurance Journal

Insurance Thought Leadership

Property Casualty 360

National Review Online

Insurance News - Saturday, December 20, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Saturday, December 20, 2014:

• Smartphone applications and devices that record trip and vehicle data are set to infiltrate auto insurance at a rapid pace, bolstered by discounts of as much as 30 percent.
• A new Uber-like phone app lets stranded drivers summon the nearest tow truck. Is this a good or bad thing?
• It seems driverless cars do not do well in rain, snow and fog.  Just like we humans.
• Given the size of the Ontario auto insurance market, recent auto insurance reforms (Bill 15) could impact on the entire Canadian P&C market.
• Not everyone is happy about Bill 15. Tow trucks organized a protest at Queen's Park regarding provisions in Bill 15 dealing with towing regulation.
• Uber's process for vetting potential drivers is receiving a lot of scrutiny.

Changes to the Rules of Civil Procedure

The Rules of Civil Procedure are being amended as of January 1, 2015.  Included in the amendments are changes to r. 48.

Currently, r. 48.14 provides that if an action has not been placed on the trial list within two years after the first defence is filed, the Registrar will issue a status notice providing that the action will be dismissed in 90 days.

The new rule provides that the Registrar shall dismiss the action for delay if:

(a) The action has not been set down or terminated by the later of five years after its commencement or January 1, 2017; or
(b) The action was struck from the trial list and has not been restored to the trial list by the later of  two years of being struck or January 1, 2017.

If a status hearing was scheduled before January 1, 2015, the old rule continues to apply.

These amendments will likely help to avoid many motions that were necessary to either avoid a dismissal or to set aside an administrative dismissal.

Payroll expenses are not part of gross revenue; why policies are impossible to understand

Gene Killian at New Jersey Insurance Coverage Litigation has blogged about a Massachusetts Appeals Court case, Verrill Farms LLC v. Family Farm Cas. Ins. Co., 86 Mass. App. Ct. 577 (2014).  The case addressed business interruption coverage and held that payroll expenses should be deducted from gross revenue in the calculation of profit or loss to determine loss of business income. 

Killian wonders why insurance policies are so badly written.  I disagree with both of his hypotheses: that the underwriters think the nature of the risks they seek to cover is complicated, or that they think that if they write the policies in an arcane and convoluted manner they'll have wiggle room when coverage disputes arise.

Policies are complicated because they are written reactively rather than proactively.  They react to court decisions that interpret them. 


Say there's an exclusion that provides, "This policy excludes damage to trees."  A court holds the exclusion does not apply to apples that have fallen from trees.  (For those of you who did not grow up near orchards, such apples are used for cider.) 

The next version of the exclusion will provide, "This policy excludes damage to trees and to the product of any tree that has not yet been harvested." A court  holds that that exclusion does not apply to damage to apples sitting in a wheelbarrow under a tree, because they have been harvested. 

The next version of the exclusion will provide, "This policy excludes damage to trees and to the product of any tree that has not yet been harvested, and to the product of any tree that has been harvested that remains on the insured property."  A court decision holds that "the product of any tree that has been harvested" applies only when the the tree itself has been harvested (such as for lumber) and not when its fruit has been harvested.

The next version of the exclusion will provide, "This policy excludes damage to trees and to any tree that has not been harvested and to any product that has not yet been harvested that grows on trees on the property and to any tree that has been harvested and remains on the property and to any product that grows on trees that has been harvested and remains on the property." 

By now no one can read through the exclusion without their eyes crossing, much less figure out what it purports to exclude.  Combine it with a few policy definitions and maybe an anti-concurrent causation clause, and . . . welcome to a modern insurance policy. 

City Not Liable for Icy Boulevard

In 2013, we blogged on a decision by Justice Gorman dismissing a claim where the plaintiff fell on a sloped boulevard between the street and the sidewalk, Bondy v. London.  The link to the blog post can be found here.  The plaintiff appealed the decision.

The Court of Appeal dismissed the appeal, at 2014 ONCA 291 (C.A.).  The parties agreed that the boulevard was a "highway" within the meaning of the Municipal Act.  The Court of Appeal held that the highest standard to which the area needed to be maintained was as a highway for vehicles, not as a passageway for pedestrian traffic. 

The plaintiff argued on appeal that because from time to time people cross the road in the middle between intersections, it creates a special circumstance that elevates the standard of maintenance.  The Court of Appeal disagreed, holding that "The fact that people may cross at undesignated places on a road does not create or impose on the Municipality a higher level of maintenance obligation."  There were also no special circumstances that created an obligation on the adjacent property owner to maintain the boulevard.

Are Insurers Using Cost Control Tools Properly?

I noticed an interesting section at the end of a recent bulletin issued by FSCO regarding recent regulation changes that I reviewed in a recent post.  Thrown in with the announcement of regulatory changes is a discussion on mileage expenses by health care providers.

The bulletin goes on to state that FSCO is aware that some health care providers are submitting mileage expenses to insurers to travel to an injured accident victim to provide services. Insurers are reminded that "authorized transportation expenses", as defined in the SABS, are intended to apply to expenses incurred by the insured person and not health care providers.  Details of what can be claimed by insured persons are subject to the Superintendent’s Transportation Expense Guideline.

The bulletin also reminds insurers that hourly fees in the Superintendent's Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.

My guess is that these aren't just friendly reminders.  More likely FSCO has become aware that health care providers are submitting for mileage and other expenses related to treatment of insureds, and insurers are paying them.  While the industry is lobbying government to reduce costs in the system, insurers are paying for expenses that do not fall under the SABS.

Having worked for the government for many years I am fully aware of the amount of lobbying in which stakeholders partake.  Insurance companies are not shrinking violets when it comes to lobbying efforts.  There is a constant list of suggested changes presented to government officials to reduce the cost of auto insurance.

It was frustrating to work on endless changes to the system that will never be fully utilized. We now have a complex set of rules, many proposed by the insurance industry, that are not always being used. It is a system that is too complex for many to properly understand and use.

Yet the government keeps churning out more regulation and rule changes to drive down costs.  But growing red tape and complexity likely have the opposite affect.  Transactional costs keep going up for insurers, health care providers and legal representatives which ensures that the price of auto insurance in Ontario remains high.

As the service provider licensing system is rolled out and soon to be followed by a new minor injury protocol I wonder which direction costs will go - up or down.

Insurance News - Thursday, December 4, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, December 4, 2014:

• The Supreme Court of Canada grants Zurich Insurance leave to appeal ruling over Ontario 'Dispute Between Insurer' regulation (O. Reg. 283/95) from last May.
• Project Whiplash has produced a 2-year conviction and $1.3 million in restitution for operating a staged collision ring in the GTA.
• On and after December 1, Ontario auto insurers cannot pay service providers directly if they do not have a FSCO licence.
• An undercover investigator hired by the city of Toronto reports that Uber poses ‘real and urgent’ safety problems.
• Google has taught its driverless cars to be aggressive, Google cars now nudge into traffic to compete with pushy drivers.

Massachusetts Appeals Court continues trend of PIP decisions against insurers

On April 7, 2007 a passenger was injured in an automobile accident.  Pilgrim was the PIP carrier.  Bryan Hartunian provided orthopedic treatments to the insured.  Pilgrim paid some of the bills from the treatment but withheld payment of $990 on the ground that the charges exceeded an amount that was reasonable in comparison to other medical providers in the same geographic area.  However, it did not notify Hartunian  within ten days of its intention not to pay. 

After twelve months of demanding payment, Hartunian sued Pilgrim in the Massachusetts District Court.  In addition to the unpaid portion of his bill he sought damages under Mass. Gen. Laws ch. 93A.  Pilgrim then issued payment of $990 and filed a motion for summary judgment on all counts of the complaint.  The motion was denied with respect to the 93A count.  Pilgrim was found liable for breach of 93A after a bench and subsequently appealed.

In Hartunian v. Pilgrim Ins. Co.,  __ N.E.3d __, 2014 WL 6607866 (Mass. App. Ct.), Pilgrim argued that its refusal to make payment was not an unfair business practice because it disputed the obligation to pay in good faith.  The court held that that argument ignored the fact that an insurer must, by statute, make PIP payments within ten days or notify the submitting physician or claimant of its intention not to pay. 

Pilgrim also argued that it did not act in bad when  it had an independent medical exam conducted by a physical therapist (apparently a common thing now) rather than a practitioner licensed in the same medical specialty as Hartunian. While not dismissing out of hand the use in all circumstances of a physical therapist for an IME, the court held that whether such use is in good faith raises a factual issue. 

Similarly, the court held that review of the bills by a billing program is not automatically a bad faith act by an insurer but that "its use as a substitute for a practitioner's review of billing statements and underlying services provides an additional basis for an inference of Pilgrim's lack of good faith." 

Municipal Toboganning Case Dismissed

The Municipality of Leamington recently successfully defended a case where the plaintiff alleged she was injured tobogganing.  In De Cou v. Leamington, 2014 ONSC 6044 (S.C.J.), the plaintiff was injured while sledding down a hill in a park run by Leamington.  Although the Town was aware that people used the hill, there had been no complaints about it.  The plaintiff was 29 years old and had been sledding on the hill since she was 5.  The Town did not maintain the park in the winter.

Justice Carey held that there was no breach of the duty of care.  The plaintiff willingly assumed the risk.  Justice Carey held that "Going down a snow covered hill in February  on a light piece of material (be it plastic, cardboard, Styrofoam or wood) is a typical Canadian winter experience.  Falling off a sled is also part of that experience."  There was no causal link between the Town's failure to supervise or inspect the hill and the plaintiff's injuries.  The case was dismissed.

New Auto Insurance Regulations

In October the government posted a notice on their Regulatory Register inviting stakeholders who comment on proposed auto insurance regulation changes.  The regulations have now been approved by the Ontario Cabinet. The regulations dealing with the licensing of service providers are effective December 1, 2014.  The regulation amendment dealing with the interest on overdue payments is effective January 1, 2015.

Section 51 of the SABS (O. Reg. 34/10) has been amended (by O.Reg. 236/14) so that interest payments of 1 percent per month compounded monthly for overdue SABS payments only applies up to the date on which a mediation proceeding begins.  Once the dispute reaches mediation the interest on overdue SABS payments is calculated at the prejudgment interest rate described in the Courts of Justice Act that is used for past pecuniary loss.  The lower interest rate and is then payable until the date a settlement is reached or a decision is issued that finally disposes of the dispute.

Section 49.1 has been added (by O. Reg. 227/14) to the SABS (O. Reg. 34/10)  to cover invoicing by unlicensed service providers.  These providers must bill claimants using the Standard Invoice (OCF-21) and the claimant is to submit the invoice to their insurer.  It is the responsibility of the insurer to provide HCAI with billing information from invoices submitted by claimants when they reimburse a claimant.

The Unfair or Deceptive Acts or Practices regulation (O. Reg. 7/00) has been amended (by O. Reg. 231/14). An unlicensed service provider may not advertise that they are a licensed provider. A licensed provider that has had their licence suspended or revoked may not continue to advertise that they are licensed.

The Administrative Penalties regulation (O. Reg. 408/12) has been amended (by O. Reg. 230/14) to deal with significant contraventions of the regulations that can involve or potentially lead to improper billing practices by service providers.

The Service Providers – Standards for Business Systems and Practices regulation (O. Reg. 90/14) is amended (by O. Reg. 228/14) to introduce a duty to report accurately to the Superintendent of Financial Services, in the periodic return established under section 288.4(5) of the Insurance Act, all information necessary to calculate any applicable fees established pursuant to section 121.1 of the Insurance Act.

The Service Providers – Listed Expenses regulation (O. Reg. 89/14) is amended (by O. Reg. 229/14) to allow licensed service providers to seek payment for outstanding accounts directly from claimants where a full and final settlement has been reached and signed between the insurer and the insured person that includes these amounts.

Get SSA to "pay" your attorney fees in your workers compensation case

This is a topic I posted on about 2 years ago. If you are receiving a check from OWCP and are also entitled to Social Security Disability payments from SSA, you can get SSA to "pay" your attorney fees as an "excludable expense." This also applies to other expenses related to your workers compensation such as paying for medical reports.

SSA has a document available online explaining how to report your attorney fees paid in connection with receiving FECA wage loss benefits from OWCP. The attorney fees (and other qualifying expenses) will be used to reduce the offset amount. Please click on the link below to SSA POMS - DI 52150.050 - Excludable Expenses, and carefully follow SSA's instructions:

link updated 1/26/15: the url below is correct, if the link does not work, cut and paste the link in your browser.

https://secure.ssa.gov/poms.nsf/lnx/0452150050

If this link does not work, do a google search for the document number  "0452150050"

Insurance News - Thursday, November 27, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, November 27, 2014:

• John Tory joins the Competition Bureau in speaking out against Toronto’s move to file an injunction in court against Uber ride-sharing service.
• A Toronto undercover investigation concluded that there are “real and urgent” safety problems with Uber, including issues with insurance coverage, driver screening and vehicle inspections.
• Meanwhile in California, ride-sharing service drivers from companies such as Uber and Lyft will soon be able to buy an amendment to their auto insurance coverage that will provide them with protection from the moment that they sign on and are waiting for a call to pick up a rider,
• Experts claim driverless cars could add $1.3 Trillion to U.S. economy from reduced accidents and productivity gains.
• Of course driverless cars could also open up employers to steal the last of your free time.
• Fraud has caused ridiculously high auto insurance rates in Detroit which now threatens the city's economic recovery by making it expensive for residents to stay in the city and discouraging newcomers.

Court of Appeal Upholds $1.1 Million Jury Award

The Court of Appeal has upheld a $1.1 million damages award in a product liability case heard by a jury.

In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it.  The jury found the defendant 75% at fault and the plaintiff 25%.  Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.

The Court of Appeal upheld the award except for the aggravated damages.  It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.  Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances.  In the circumstances, there was an evidentiary basis for the jury's conclusion.

The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.

This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.

Insurance News - Saturday, November 22, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Saturday, November 22, 2014:

• Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 passed this week with no changes.  The bill when proclaimed will transfer accident benefit disputes to the Licence Appeal Tribunal, implement the oversight of the billing practices of health clinics, and introduce new rules governing tow truck operators and vehicle storage yard.
• The legal community was unable to convince the government to make changes to Bill 15 which means the new dispute resolution system will have no access to the courts and prejudgment interest will be reduced.
• This week the Ontario government released its Fall Economic Outlook and Fiscal Review (pages 71-72 deal with auto insurance).
• Driverless vehicles and smart cities can cut auto fatalities and CO2 emissions by 2025.
• Armed with analytics, predictive modeling and big data, insurers are moving to take on application fraud.
• Automakers adopt protocols to handle and protect consumer data in connected car era.

It's Time That The Insurance Industry and Regulators Begin Accommodating Ride-Sharing Services

Uber, a San Francisco-based company estimated to be worth $17 billion (U.S.) is aiming to shake up the taxi business in Toronto.

Uber is reported to operate in more than 140 cities in 40 countries around the world, offering taxis, limos and car-sharing services, allowing customers to bypass traditional taxi companies and brokerages to request a ride using their smartphones.

When Uber first set up in Toronto in 2012, city of Toronto officials informed the company that it needed to get a brokerage licence. Uber disputed the request and has been insisting that it is not a taxi service, but rather a technology company, and therefore not subject to licensing requirements. The city has since hit Uber with 35 bylaw infractions and now the city is headed to court in an attempt to get an injunction to shut down the service. 

Toronto Mayor-elect John Tory is correct.  Uber and similar ride-sharing services aren't going anywhere.  Consumers like these new services and that's why there are using them.  Using a smartphone app, you will be told when the vehicle will arrive, who is the driver, the rating of the driver, the cost of the ride with tip and will allow you to pay for the ride without handling any cash.  No need to be standing in the cold or wet on a street corner waving your arm frantically trying to get a passing cab to stop.

The current regulated taxi model is archaic and costly.  The city limits the number of plate owners which has created wealth for plate owners who are often not the drivers. The dispatcher system is out of date when technology allows drivers and consumers to link up directly.  However, there is a lot of money tied up in the current system.  To make matters worse, the regulators appear to be very tied to the existing model.

The one thing that Uber is not short on is money.  They will fight this court battle as they have in other jurisdictions.  They typically come out on top.  Regulators should be designing new regulatory models to accommodate new technologies not fight them.  For example the Ontario Ministry of Transportation is working on a regulatory framework for driverless vehicles.  The insurance regulator and the insurance industry needs to develop insurance products that reflect these new technologies whether it is driverless cars or ride-sharing services.  

The insurance industry needs to recognize that ride-sharing is likely here to stay and properly underwrite these risks to protect drivers and their clients.

No Rebuttable Presumption in Section 4 of the Occupier's Liability Act

Section 4 of the Occupier's Liability Act creates a lower standard of care where premises are "recreational trails reasonably marked as such".  A person who enters such premises is deemed to have willingly assumed all risks.  The Divisional Court has confirmed that the purpose of s. 4 is to reduce the duty of care owed by certain occupiers and attempts to thwart the legislation will not be permitted.

In Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.), the plaintiff was injured while biking on a recreational pathway.  The Commission brought a motion for summary judgment.  The motions judge dismissed the motion on the basis that there was a rebuttable presumption the plaintiff could advance at trial to dislodge the lower standard of care contained in s. 4. 

The Divisional Court disagreed.  The purpose of s. 4 is to reduce the duty of care owed by occupiers of recreational lands.  If the motion judge's decision was allowed to stand, it would undermine the purpose of s. 4.  Acting in reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury result".  There was no evidence the Commission acted in that manner, and in fact, there was evidence the Commission took some steps for the safety of users of the trial.

The Divisional Court allowed the appeal and dismissed the action.

No New Auto Insurance Commitments in 2014 Ontario Fall Economic Statement

The auto insurance focus of this year's Ontario Economic Statement is consumer protection although not everyone is going to agree that these measures are strictly to protect consumers. The statement provides a summary of government activity that is ongoing.

The government claims it is taking steps to keep auto insurance affordable.  As a result of the government’s Auto Insurance Cost and Rate Reduction Strategy, FSCO rate approvals fell by than six per cent on average from August 2013 to August 2014. Although it is not always clear what impact that will have on the paying public.  However, the commitment was for an eight per cent reduction during that time period.

The government has taken action to address over half of the recommendations made by the Auto Insurance Anti‐Fraud Task Force, including key proposals to enhance the Financial Services Commission of Ontario’s (FSCO) investigation and enforcement authority and make it easier for individuals to report suspected auto insurance fraud.

Licensing of health service providers in the auto insurance system, a key Task Force proposal, will become fully effective on December 1, 2014.

The government is also committed to establishing a Serious Fraud Unit, whose initial mandate would include addressing auto insurance fraud. Establishing such a dedicated investigation and prosecution unit would be consistent with the Task Force’s conclusion that cases of suspected auto insurance fraud should be vigorously pursued and prosecuted where evidence warrants.

Bill 15, the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, is working its way through the legislative process and has recently had second reading and undergone a very brief review by a legislative standing committee.  If passed, Bill 15 would:

• Transfer Ontario’s auto insurance dispute resolution system to the Licence Appeal Tribunal and make significant changes to help injured drivers settle disputed claims faster; 
• Regulate the towing and vehicle storage industries through measures that tackle questionable practices; and
• Give the government authority to change the current 60‐day period that a vehicle can be stored after an accident, accruing charges, without notice to the owner. 

Rates are directly linked to claims costs.  So in addition to reducing fraudulent activity and abuse, Bill 15 also will reduce costs in the system.  That is where some of the controversy lies.  The government plans to align prejudgment interest rates on pecuniary and non-pecuniary damages (pain and suffering) to what are typical rates in today’s market. That will reduce the rate to 1.3% (from 5%) on pecuniary damages.

Insurance News - Thursday, November 13, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, November 13, 2014:

• Transcripts for public hearings on Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act 2014 are now available online.
• Owning a car is expensive.  So is ridesharing services like Uber cheaper than owning a car?
• Why do so many consumers seek out "cheap" auto insurance given the expense of their new cars or trucks — easily $30,000, $40,000 or even $50,000 or more for high-end models?
• Driverless car researchers develop plans to prevent hacking on the highway.
• Your car may be programmed to kill you and 9 more fun facts about driverless vehicles.

Insurance News - Tuesday, November 11, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, November 11, 2014:

• Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 passes second reading and has just one day of public hearings.
• Toronto man charged with selling fake auto insurance some drivers on the road without coverage
• Will we need a learner's permit for self-driving cars?
• Utilities, taxis, construction and mining, government and public sectors, emergency services, public transportation and local delivery services will all likely have telematics installed on their vehicles.
• Fatal California accident will test Lyft's $1 million auto insurance policy.
• B.C. Transportation Minister says plainclothes transit agents posing as potential customers will be deployed to ensure taxis and their drivers are operating by B.C.'s rules, which are enforced to ensure passenger safety.

OWCP announces a change of contact number for ACS effective 1/1/2015

Effective January 2, 2015 the ACS customer service number for questions related to provider enrollment, Federal Employees' Compensation Act (FECA) bill payment, and FECA medical authorization status is changing to a new toll free number, (844) 493-1966. Please continue to use the current ACS contact number of (850) 558-1818 until January 2, 2015, when that number will be disconnected. By providing a toll free number, we will be able to offer a more stable service for our stakeholders.

OWCP and other workers compensation systems no longer meet their basic goals

The idea behind workers compensation systems was that injured workers should get immediate benefits allowing them to not lose income and get the medical care they need to return to work as quickly as possible so as to avoid simple injuries becoming serious and the destruction of families due to lengthy waits to receive replacement income. Unfortunately, this system is presently failing many injured workers. This is an interesting article on how OWCP other state systems no longer provide the benefits that they were intended to provide because of the increasing complexity of a system that become more employer oriented by the day:
 http://www.nesri.org/news/2013/03/workers-compensation-the-systems-devastating-economic-impact-on-workers-lives

The Importance of Clarity in Making Rule 49 Offers

The law with respect to r. 49 offers is increasingly complicated.  It is important for offers to be clear in order to benefit from the provisions of r. 49.  At the same time, even if an offer does not qualify as a r. 49 offer, it can be taken into consideration when a court is deciding costs.

In Elbakhiet v. Palmer, 2014 ONCA 544 (C.A.), the plaintiffs sought damages of almost $2 million dollars.  After a jury trial, they were awarded $144,013.07.  The plaintiffs made one offer of $600,000 plus costs.  The defendants made two offers, the second of which was $145,000 plus pre-judgment interest in accordance with the Courts of Justice Act plus costs.

One of the issues at the Court of Appeal was whether the defendants obtained a judgment as favourable or less favourable than their offer.  The defendants’ position was that the offer was intended to mean PJI of 5% on the entire offer (which would mean the offer exceeded the judgment).  The trial judge held that it was not clear that there was a uniform practice that 5% would be applied to the entire offer, and different rates of interest could apply to different heads of damages.  She held the defendants had not beat their offer and ordered the defendants to pay costs of almost $580,000.

The Court of Appeal held that there is no evidence of a general understanding that 5% would apply to the entire offer.  At the same time, the trial judge failed to give proper consideration to r. 49.13 which permits the court to exercise discretion and take into account any offers made.  Since the offer to settle was virtually the same as the judgment, the trial judge should have taken r. 49.13 into account.  She erred in failing to do so.

The Court of Appeal held that “it was not fair and reasonable to award the [plaintiffs] costs of almost $580,000 for a claim the jury valued at just under $145,000”.  It allowed the appeal and reduced the costs payable to the plaintiffs to $100,000. 

Appeals Court sidesteps question of whether PIP carriers can have IME conducted by physical therapist

 Judith Ortiz was injured in an automobile accident. She sought PIP benefits from Commerce. 

Commerce sent Ortiz a notice indicating that she would have an independent medical examination conducted by a physician named Eugene Boeglin.  Ortiz attended the examination.  When Commerce sent her lawyer a copy of the IME report, she learned that Boeglin was not a medical doctor but a "doctor of physical therapy."  (Side note:  I have read hundreds of plaintiffs' physical therapy notes in my career.  Since the notes were all more or less the same I had come to assume that PT was bogus -- until I was referred to PT a few years ago for a pinched nerve.  Those people are miracle workers with knowledge that goes extremely deep.) 

Ortiz sued Mass Medical Services, apparently Boeglin's employer, for violation of the privacy statute, Mass. Gen. Laws ch. 214 s. 1B and of ch. 93A. 

In Ortiz v. Mass Medical Services, Inc., 86 Mass. App. Ct. 1116, 2014 WL 5326511 (unpublished), the Massachusetts Appeals Court affirmed dismissal of the privacy act claim for failure to comply with the statute of limitations. 

The court dismissed the 93A claim because the allegedly unfair and deceptive act -- the fact that Boeglin was a physical therapist, not a medical doctor -- caused no adverse consequences or loss. 

The court did not address whether Commerce itself was in violation of any statute or acting in bad faith by having the IME conducted by a physical therapist. 

Insurance News - Wednesday, October 29, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Wednesday, October 29, 2014:

• Quebec is not being as aggressive as Ontario with regard to telematics since the take-up for auto usage-based insurance products has been lackluster to date.
• It's hard to imagine tomorrow’s transportation infrastructure to support driverless cars when haven't gotten around to fixing today’s infrastructure.
• In New York insurers and and trial lawyers agree the state’s no fault insurance law needs reforming but they don't agree on how.  Sounds like Ontario.
• New Jersey has a bill that today is advancing in the Legislature that would establish a program to allow people to obtain endorsements on their driver’s licenses to operate and test driverless vehicles.

The Importance of Certainty When Pursuing the Deduction of Collateral Benefits

The jury in Gilbert v. South et al., 2014 ONSC 3485 (CanLII), awarded the plaintiff general damages, future care costs and damages for past and future income loss and loss of housekeeping.

The plaintiff had been injured in a motor vehicle accident in 2010. The plaintiff’s injuries were non-catastrophic. He was entitled to certain statutory accident benefits including up to $100,000 for medical and rehabilitation, subject to a 10-year time period.

The plaintiff had received some medical benefits totalling $14,822.50 and housekeeping benefits totaling $14,822.50. The plaintiff had neither applied for nor received income replacement benefits or attendant care benefits and the time period to receive same had expired. The time period had also expired for the plaintiff to receive future housekeeping benefits. The defendant did not seek relief in relation to the benefits that may have been available to the plaintiff but were not pursued.

Prior to judgment being formally entered, the defendant brought a motion seeking various forms of relief relating to “certain futurestatutory accident benefits and other collateral benefits” received or to be received by the plaintiff.

The defendant relied on s.267.8 of the Insurance Actwhich in certain prescribed circumstances imposes trust, payment and assignment obligations on plaintiffs who in motor vehicle accident cases obtain certain types of litigated recovery for losses which also may be addressed by certain collateral benefits (para 8).

Justice Leach set out the general principals relating to the application of this section, including the following (pars 9):

·         the object of these provisions is to prevent “double recovery” by the plaintiff. The provisions assume that the plaintiff has obtained, through litigation, damages covering the same loss otherwise covered by the collateral benefits;

 

·         concern of double-recovery is balanced by concern that a plaintiff should receive full compensation and not recover less than that to which he is entitled. Statutory provisions of this nature are strictly interpreted and applied;

 

·         deductions from a plaintiff’s damage award to prevent double-recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, and the plaintiff received compensation for the same benefits in the tort judgment. Evidence of “likelihood” and “probability” is not enough to warrant a deduction. A “very strict onus of proof” applies in relation to such matters, and it must be “patently clear” that the preconditions for an appropriate deduction have been established.

Justice Leach held that there were too many uncertainties as to entitlement and overlap to grant the relief requested and the defendant’s motion was denied. There was no evidence as to the total amount or the nature of statutory accident benefits the plaintiff would definitely receive.

A further obstacle to the relief requested by the defendant was that the jury awarded the plaintiff $57,250.00 for “future care costs” but the jury did not indicate, and was not asked to indicate, the extent to which any of this amount was allocated to the time period during which the plaintiff may be entitled to medical and rehabilitation benefits. Of importance, Justice Leach notes that this uncertainty may have been avoided by the posing of more specific questions to the jury.

This decision stresses the importance of quantifying future entitlement to collateral benefits in advance of trial and the importance of taking care to ask the necessary questions of the jury in order to identify any overlap between the tort award and collateral benefits.

It's a whole new ballgame in PIP litigation, thanks to an SJC decision

I have written before, here, about why it is difficult to sue PIP carriers who fail to pay claims.  PIP claims are by their nature small: generally not more than $2000 and never more than $8000.  The PIP statute provides that the insurer must pay the claimant's attorney's fees if a judgment against the carrier enters.  Up until now, an insurer could avoid paying those fees if it forced a claimant to file suit, conduct discovery and go to trial and then, minutes before judgment enters, paid the claim.  Of course if the claimant proved bad faith in the insurer's actions then attorney's fees were available under Mass. Gen. Laws ch. 93A, but bad faith is harder to prove than mere failure to pay a claim when due.  Although some wiggle room was found by various decisions of the Massachusetts Appellate Division (a court that does not set precedent), see here and here, PIP cases in general were simply a bad risk. 

The Supreme Judicial Court of Massachusetts has changed all that.

In Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800 (2014), the SJC has held that an unpaid party who has brought suit may refuse the insurer's tender of PIP amounts due, proceed with suit, and obtain a judgment for those amounts as well as its costs and attorney's fees. 

The plaintiff, Barron Chiropractic & Rehabilitation, provided chiropractic services to Nicole Jean-Pierre after an auto accident.  Jean-Pierre's PIP carrier was Norfolk & Dedham. 

Jean Pierre's chiropractor at Barron and Norfolk & Dedham disagreed about the length of treatment made necessary by the accident and about the proper price for her treatment.  The disputed amount was $1,544.05. 

Barron sued Norfolk & Dedham in District Court.  Norfolk & Dedham determined that its anticipated litigation costs would substantially exceed the amount of the disputed medical fees.  Six days prior to trial it sent Barron a check for the disputed amount with an attached check stub that stated "full and final settlement."  Barron's counsel returned the check to Norfolk's counsel with a letter stating that its offer of settlement was rejected.

The SJC held that under contract law Barron was not required to accept the tender of settlement for the amount due after the time for payment under the PIP statute had passed.  It also held that it would be unfair and against the purpose of the PIP statute to allow the insurer to escape costs and attorney's fees by paying the PIP amount that was due after forcing the claimant to file suit. 

Insurance News - Tuesday, October 28, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, October 28, 2014:

• Japanese insurer is about to launch a smartphone service that warns drivers when their vehicles are approaching locations where traffic accidents frequently occur.
• Companies such as Google and Amazon may pose some of the biggest threats to insurers, as consumers increasingly trust technology behemoths to provide services such as insurance.
• A recent study concluded that Americans wasted $124 billion sitting in traffic in 2013 and traffic cost the average household $1,700 a year.
• Insurance Bureau of Canada warns UberX drivers about insurance coverage  (or lack of it).
• The use of anti-fraud technology by insurers in North America is on the rise however, many companies are still struggling with the deployment of proactive predictive analytics tools because of resource constraints, according to a study.

Insurance and global warming

The New York Times has an article about the reaction (and non-reaction) of insurers to higher risk of property damage as a result of global warming.

My guess is that the government will find itself more and more in the property insurance business. Just as it entered the flood insurance market through the National Flood Insurance Program, the government will have to make a choice about whether to abandon owners of property now at high risk for hurricanes and other disasters or to subsidize them. 

My vote would be a gradually phased-out subsidy, perhaps with an income-based component.  Just as I don't think that taxpayers should have to pay to protect the houses of people who choose to build on unstable lands prone to falling into oceans or canyons, I don't think that over the long-term taxpayers should have to pay to protect property that is highly likely to be destroyed by relatively predictable weather disasters.  But I also don't want to see those property owners suffer a unilateral loss as a result of global warming, an event we have all caused and should all bear responsibility for.  And I want to see poorer people with more protections for their limited assets.   

Ontario's Rate Reduction Strategy Likely To Fall Short

This week FSCO released rate filings approved for third quarter of 2014.  Nine insurers, representing 26.65% of the market based on premium volume, had rates approved in the third quarter of 2014. Approved rates decreased on average by 0.11% when applied across the total market.

In the backdrop is the Ontario government's commitment to reduce rates in the province by 15% before August 15, 2015.  The chart below breaks down the quarterly rate approval changes following the announcement of the rate reduction strategy last year. The third quarter of 2013 has been included although many of the rate approvals for that quarter may have been filed well before the strategy was announced. 

Quarter	Rate Change
2013 – 3Q	-0.68%
2013 – 4Q	-3.98%
2014 – 1Q	-1.01%
2014 – 2Q	+0.22%
2014 – 3Q	-0.11%

The accumulative rate reductions approved by FSCO during this period have been under 6%. With just 10 months remaining, the government is considerably short of its target with no real strategy to bring down rates another 9-10%.

Bill 15, the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 will likely be passed by the legislature within the next 10 months.  The Bill contains provisions to transform Ontario's auto insurance dispute resolution system into a more robust system. Other provisions would regulate the towing and vehicle storage industries through measures that tackle questionable practices. The bill would amend provisions in the Repair and Storage Liens Act and give the province authority to change the current 60-day period that a vehicle can be stored after an accident, accruing charges, without notice to the owner. The government has also served notice through the Regulatory Register that it will reduce the rate of interest on overdue SABS payments.

However, all of these initiatives as well as the proposed legislation to regulate the towing industry and the expected introduction of a new minor injury protocol could not possible bring down rates a further 9% in less that a year. 

Insurance News - Friday, October 17, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Friday, October 17, 2014:

• Studies show voice activated smartphones, dashboard infotainment systems can distract drivers.
• No surprise here that OPP statistics indicate that speeding and distracted drivers are the leading causes for road fatalities.
• An interesting article on how connectivity is enabling a new paradigm for auto mobility.
• Volvos will soon have a 360 degree accident avoidance systems in its cars that will plot 'escape routes' to avoid crashes.
• A Wall Street Journal article on how driverless cars with change retirement.
• The Ontario government is behind on its rate reduction commitment but still insists it will deliver.

The Test to Determine Whether an Insured "Permitted" the Unauthorized use of a Motor Vehicle

A recent decision looked at the test to determine whether an insured permitted someone else to drive his vehicle when she was not authorized to do so.

In O’Connell v.Personal Insurance Co., (2014 ONSC 1469 (S.C.J.), the insured let his girlfriend borrow his motor vehicle. The insured’s girlfriend was involved in an accident. It turned out that the insured’s girlfriend only had a G1 license and therefore she was not authorized to drive alone or on a 400 series highway, where the accident occurred. The insured stated that he had assumed his girlfriend had a full license. At trial, the insured’s girlfriend testified that she had not told the plaintiff that she did not had have a full license because she was embarrassed. The insurer denied a defence and indemnity on the bases that the insured had breached statutory condition 4(1) of the Ontario Regulation 777/93 and section 1.4.5 of the OAP, by allowing someone else to drive his vehicle when they are not authorized to do so.

The court held that the insured had not “permitted” his girlfriend to drive when she was not authorized to do so. In reaching this conclusion, the court held that the test to determine whether an insured permitted the use of their vehicle by an unauthorized driver is whether the insured took all reasonable and prudent precautions to see that the statutory condition was not contravened. The court held that the insured knew his girlfriend had a driver`s license and it looked the same has his full G license, he had heard her anecdotes involving driving in the past and she had never told him that she only had a G1 license. Given this, the court held that the insured acted as reasonably and prudently as an average individual in similar circumstances, the statutory condition was not breached and the insurer was bound to defend and indemnify the insured.

Update On Fraud

It has been nearly two years since Ontario's Auto Insurance Anti-Fraud Task Force delivered its final report to the Liberal government. The task force's final report was the result of a 16-month review and contained 38 recommendations dealing with fraud prevention, fraud detection, investigation and enforcement, as well as regulatory responsibilities.

 Following the release of task force report, it seems as if every auto insurance announcement released by the Ontario government has mentioned fraud. This is a strong indication that the government is very aware of the impact of fraud. To its credit, the government and the industry began implementing task force recommendations as soon as the report hit the streets. Despite all the work undertaken to implement the task force recommendations there still remain recommended action that are outstanding.

 MORE POWER TO FSCO

 The Financial Services Commission of Ontario (FSCO) and the insurance industry have created educational material in different media that instruct consumers at critical moments - such as when they learn to drive, select an insurer, collide with another vehicle or make an insurance claim - on how to avoid, detect and report improper activity. Insurance Bureau of Canada (IBC) and FSCO are active on social media, providing consumers with valuable tips and information.

It is now easier to report suspected fraud. Both IBC and FSCO operate fraud hotlines that consumers can use to provide anonymous tips of suspicious activity.

The government amended Ontario's Insurance Act in 2013 to enhance FSCO's powers. The Superintendent is now able to investigate anyone who was previously in the business of insurance; licensed service providers; or anyone else the superintendent considers may be engaged in unfair or deceptive acts or practices. This would include examining records, books and other information held by a licensed service provider.

 A number of regulatory changes also became effective in 2013 specifically to combat fraud. The government has amended the Statutory Accident Benefits Schedule (SABS) so that claimants play a more active role in helping to detect and prevent fraud. As well, the list of unfair or deceptive acts or practices has been expanded.

Insurers now have the ability to examine a claimant under oath, where this is necessary to determine which insurer should be responsible for coverage, without prejudice to the right for an examination under oath with respect to questionable claims.

Finally, the government has broadened the terms of reference for the required review by the superintendent of Part VI of the Insurance Act to reflect the additional powers and responsibilities assigned to FSCO. In addition, the amended Insurance Act provision now requires the review to be conducted at least every three years.

A WORK IN PROGRESS

Although there has been considerable progress made in developing tools and mechanisms to combat fraud, there are still outstanding task force recommendations. The previous government's minority status and the recent election have contributed to delays in implementing a number of recommendations. Now that the Liberals have returned to power with a majority, it is expected that adoption of the remaining task force recommendations will accelerate.

A positive sign was the introduction of Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 shortly after the spring election.

Should Bill 15 be passed by the legislature - and there is no reason to believe it will not be - it will implement a number of outstanding task force recommendations.

Included are provisions to transform Ontario's auto insurance dispute resolution system into a more robust system. Responsibility would be transferred to the Licence Appeal Tribunal under the Minister of the Attorney General.

Other provisions would regulate the towing and vehicle storage industries through measures that tackle questionable practices. The bill would amend provisions in the Repair and Storage Liens Act and give the province authority to change the current 60-day period that a vehicle can be stored after an accident, accruing charges, without notice to the owner.

In 2013, the insurance industry established CANATICS, or Canadian National Insurance Crime Services, a not-for-profit organization focused on using state-of-the-art analytical tools to identify potentially suspicious claims in insurance industry pooled data, to facilitate further investigation by individual insurers. CANATICS recently added a 10th insurer as a member and now has access to data from 75% of the market based on direct written premiums in Ontario. CANATICS is expected to begin operations in 2015.

Health Claims for Auto Insurance (HCAI) has developed the Professional Credential Tracker to assist regulated health professionals in preventing their identities from being misused by health care facilities. HCAI continues to look at additional anti-fraud tools.

FSCO is well on its way to licensing health clinics that treat and assess auto insurance claimants and to sanction clinics that are not following FSCO's business-practice standards. FSCO has a wide range of sanctions at its disposal, including the ability to limit or curtail a facility's access to HCAI. The licensing system is expected to be operational in December 2014.

There are a number of other ongoing initiatives identified by the task force that the insurance industry is eager to see completed. FSCO continues to lead the work on developing treatment protocols for minor injuries that are based on scientific evidence. Meanwhile, the Ministry of Transportation is still working on its Electronic Collision System project.

MORE WORK TO BE DONE

Although it is anticipated that Bill 15 will pass, there are still a number of legislative and regulatory changes recommended by the task force that the government has not acted on. There still has been no legislation introduced to protect individuals who report suspected fraud from reprisals and retribution. The government has also not amended the regulation to permit insurers to collect a cancellation fee from claimants who fail to attend a medical examination without a good reason, and to suspend income replacement benefits when there is compelling evidence the claimant has submitted a fraudulent claim for medical or rehabilitation accident benefits.

There were also a number of recommendations that dealt with information sharing that have yet to be developed. There is a need for protocols for active information sharing about suspicious cases among the investigative divisions of FSCO, the Workplace Safety and Insurance Board, the Law Society of Upper Canada and the Ontario Health Insurance Plan. In addition, protocols are needed to permit FSCO investigators to exchange information with investigators from relevant federal entities (such as the Canada Revenue Agency). The insurance industry is still waiting for these regulatory bodies and agencies to begin work out these issues.

The task force report contained several recommendations directed at introducing greater transparency with respect to independent assessments that have not been implemented. This includes requiring insurers to disclose publicly how they choose and assess the performance of independent medical examiners they refer consumers to see. Health regulatory colleges are also expected to work together to develop professional standards, guidelines and best practices to improve the quality of independent assessments of auto insurance claimants conducted by their members.

The fight against fraud is far from over but progress has been made. Under prevention, consumer awareness has been enhanced and a new licensing system for service providers will soon be operational. The industry will be in a better position to detect fraud when CANATICS is fully operational next year. FSCO's powers have been expanded to allow for more effective fraud investigation and enforcement. All this would not have been possible without the co-operation of government, the insurance industry, police services and service providers.

Appeals Court reminds us that when it comes to insurance, it's usually Buyer Beware

In Kleycamp v. USAA Casualty Ins. Co., 86 Mass. App. Ct. 1113, 2014 WL 4799608 (unpublished), the Massachusetts Appeals Court affirmed summary judgment to a defendant insurer that had not recommended that the plaintiffs purchase underinsured coverage with their auto policy.

The plaintiffs had never specifically inquired of the insurer about underinsured coverage, and the insurer never made any specific assertions or representations about the adequacy of the plaintiffs' coverage. 

The court noted that the general rule in Massachusetts is that insurers and their agents do not have a general duty to recommend insurance coverage, or to guarantee that insurance policies are adequate for a particular insured's needs.  There is an exception only for special circumstances, such as reliance on specific assertions or representations concerning the adequacy of coverage. 

In a footnote the court noted that the same analysis might not apply to homeowner's policies.

In my view, underinsured and uninsured coverages are among the most important insurance you can buy.  They can't protect you against the risk that another driver's carelessness will injure you; but they do protect you against the risk that that careless driver doesn't have enough insurance to cover your injuries.