Presently there is no guidance as to how long this situation will continue. When trying to log in to the ACS portal you will get the following message:
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Thursday, July 30, 2015
Access to ACS and CQS is offline
The Office of Personnel Management hack has triggered another victim. OWCP claimants and their representatives and medical providers are no longer able to access the ACS web bill processing portal to look at the status of bills, authorizations, etc. The CQS portal is also gone. As it was explained to me, OWCP has locked down external log ins to their system due to the continuing concerns about hacking. This has sent OWCP back to the 1990s with all inquiries regarding the status of anything in the case reverting to telephone.
Presently there is no guidance as to how long this situation will continue. When trying to log in to the ACS portal you will get the following message:
Presently there is no guidance as to how long this situation will continue. When trying to log in to the ACS portal you will get the following message:
Monday, July 27, 2015
Insurance News - Monday, July 27, 2015
Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, July 27, 2015:
- Google self-driving car accidents show why humans don’t belong behind the wheel.
- Why the difference between self-driving and autonomous vehicles really matters.
- New towing rules in the Town of Richmond Hill are working.
- It's almost August and the Ontario's rate reduction promise will not be met.
- City revenues may fall drastically when driverless cars provide fewer fines.
- How Uber is ending the dirty dealings behind Toronto's cab business.
Friday, July 24, 2015
Liberty Mutual approved to use drones to assess property damage
The Boston Business Journal reports here.
My first thought was that the use of drones would allow insurers to make faster initial assessments of property damage after large- or largish-scale disasters. Although insurers have in place the ability to mobilize adjusters from all over the country to descend on a region that has been hit by a hurricane, severe winter storm, or other event, it can still take weeks to get an adjuster to a particular property to assess damages. Sometimes after one look the adjusters realize they are from the wrong department and they need someone who can approve higher reserves to come out.
Unfortunately, though, the reality appears to be that, if anything, the use of drones will slow down initial assessments because they will require two people per drone -- an observer of the drone and a licensed pilot. It's not clear whether the drone observer will also be an adjuster who can assess damages, including internal damage to a building; nor does the article say what type of specific training will be required for the drone-observer.
Unless insurers team up to use a single drone team after a disaster, use of drones is unlikely to add much to efficiency, since in any neighborhood many homeowner's or general liability insurers provide coverage for the various properties located there.
As the Boston Business Journal points out, however, use of drones will improve safety for adjusters and also allow photographs to be taken of otherwise inaccessible areas such as roofs shortly after the loss.
As with any technological change, we'll see how it plays out in practice.
My first thought was that the use of drones would allow insurers to make faster initial assessments of property damage after large- or largish-scale disasters. Although insurers have in place the ability to mobilize adjusters from all over the country to descend on a region that has been hit by a hurricane, severe winter storm, or other event, it can still take weeks to get an adjuster to a particular property to assess damages. Sometimes after one look the adjusters realize they are from the wrong department and they need someone who can approve higher reserves to come out.
Unfortunately, though, the reality appears to be that, if anything, the use of drones will slow down initial assessments because they will require two people per drone -- an observer of the drone and a licensed pilot. It's not clear whether the drone observer will also be an adjuster who can assess damages, including internal damage to a building; nor does the article say what type of specific training will be required for the drone-observer.
Unless insurers team up to use a single drone team after a disaster, use of drones is unlikely to add much to efficiency, since in any neighborhood many homeowner's or general liability insurers provide coverage for the various properties located there.
As the Boston Business Journal points out, however, use of drones will improve safety for adjusters and also allow photographs to be taken of otherwise inaccessible areas such as roofs shortly after the loss.
As with any technological change, we'll see how it plays out in practice.
Wednesday, July 22, 2015
No Duty to Defend Parents of Alleged Bully
The Court of Appeal has held that an insurer does not have a duty to defend its insureds with respect to claims that they failed to prevent bullying.
In Unifund v. D.E., 2015 ONCA 423 (C.A.), the insurer refused to defend parents of an alleged bully. In the underlying action, the plaintiff alleged that the parents' daughter had bullied her at school. The allegations against the parents were that they knew or ought to have known about the bullying, and failed to investigate it, take steps to prevent it or take disciplinary action. The Unifund policy contained an exclusion which provided as follows:
In Unifund v. D.E., 2015 ONCA 423 (C.A.), the insurer refused to defend parents of an alleged bully. In the underlying action, the plaintiff alleged that the parents' daughter had bullied her at school. The allegations against the parents were that they knew or ought to have known about the bullying, and failed to investigate it, take steps to prevent it or take disciplinary action. The Unifund policy contained an exclusion which provided as follows:
The application judge held that the exclusion was limited to an intentional failure to prevent physical abuse rather than negligence. The Court of Appeal allowed the appeal. Justice MacPherson held that by using the word "failure" in the exclusion clause, it extended to negligence. Unifund had no duty to defend or indemnify its insureds in the underlying action.We do not insure claims arising from:6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:(a) any person insured by this policy; or(b) any other person at the direction of any person insured by this policy;7.(a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or(b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.
Tuesday, July 21, 2015
Mass. Appeals Court holds insurer has 93A liability under doctrine of apparent authority
William Fiore worked as a bail bondsman as an agent for International Fidelity Insurance Company (IFIC). Under the agreement between Fiore and IFIC, Fiore was to collect and deliver to IFIC collateral and to collect bond premiums. Cash collateral received on behalf of IFIC was required to be held in a separate account and not comingled with other funds.
The plaintiffs utilized Fiore's services as bail bondsman to obtain their own releases or the release of a third party on bail. They each paid a premium and posted cash collateral.
Fiore instructed the plaintiffs that ten percent of the total bond amount constituted a nonrefundable cash bail bond insurance premium payment. According to the Massachusetts Appeal Court in Ramos v. International Fidelity Insurance Co., __ N.E.3d __, 2014 WL 10044905 (Mass. App. Ct. 2015)*, such practice violated rules governing professional bondsmen that prohibit charging fees in excess of five percent.
When, at the end of their criminal cases most of the plaintiffs sought return of their collateral, they discovered that Fiore had died without having deposited their collateral in escrow.
The plaintiffs sent 93A demand letters to IFIC. IFIC responded that Fiore was a contractor and that it was not liable for his wrongdoing. The plaintiffs sued for violation of ch. 93A and for breach of contract.
The trial court judge granted summary judgment to IFIC on the 93A claim, concluding that IFIC's response to the 93A demand letters, in which it asserted that Fiore was an independent businessman, did not cause the plaintiffs' harm.
The Appeals Court noted that a jury could find that the response letters from IFIC falsely denying the agency relationship were sent when IFIC knew that it had an obligation because of that relationship to return the plaintiffs' collateral, and in an attempt to cause the plaintiffs to decline to enforce their rights, and that such conduct constituted an independent 93A violation. But the trial court judge was correct that there was no evidence that such conduct injured the plaintiffs. They were not misled into failing to file suit before the expiration of the statute of limitations.
However, the court held, the overcharges themselves were violations of ch. 93A.
IFIC argued in the alternative that vicarious liability under ch. 93A was unwarranted because Fiore's actions were not motivated by a desire to benefit it and it was wholly ignorant of Fiore's actions. The court disagreed, holding that the doctrine of apparent authority applies to 93A claims.
* Westlaw still hasn't corrected its error in 2015 Massachusetts case citations, making it appear that such cases are 2014 decisions.
The plaintiffs utilized Fiore's services as bail bondsman to obtain their own releases or the release of a third party on bail. They each paid a premium and posted cash collateral.
Fiore instructed the plaintiffs that ten percent of the total bond amount constituted a nonrefundable cash bail bond insurance premium payment. According to the Massachusetts Appeal Court in Ramos v. International Fidelity Insurance Co., __ N.E.3d __, 2014 WL 10044905 (Mass. App. Ct. 2015)*, such practice violated rules governing professional bondsmen that prohibit charging fees in excess of five percent.
When, at the end of their criminal cases most of the plaintiffs sought return of their collateral, they discovered that Fiore had died without having deposited their collateral in escrow.
The plaintiffs sent 93A demand letters to IFIC. IFIC responded that Fiore was a contractor and that it was not liable for his wrongdoing. The plaintiffs sued for violation of ch. 93A and for breach of contract.
The trial court judge granted summary judgment to IFIC on the 93A claim, concluding that IFIC's response to the 93A demand letters, in which it asserted that Fiore was an independent businessman, did not cause the plaintiffs' harm.
The Appeals Court noted that a jury could find that the response letters from IFIC falsely denying the agency relationship were sent when IFIC knew that it had an obligation because of that relationship to return the plaintiffs' collateral, and in an attempt to cause the plaintiffs to decline to enforce their rights, and that such conduct constituted an independent 93A violation. But the trial court judge was correct that there was no evidence that such conduct injured the plaintiffs. They were not misled into failing to file suit before the expiration of the statute of limitations.
However, the court held, the overcharges themselves were violations of ch. 93A.
IFIC argued in the alternative that vicarious liability under ch. 93A was unwarranted because Fiore's actions were not motivated by a desire to benefit it and it was wholly ignorant of Fiore's actions. The court disagreed, holding that the doctrine of apparent authority applies to 93A claims.
* Westlaw still hasn't corrected its error in 2015 Massachusetts case citations, making it appear that such cases are 2014 decisions.
Thursday, July 16, 2015
Second Quarter Rate Filings Up 0.6 Percent
FSCO approved 30 private passenger automobile insurance rate filings during the second quarter of 2015. A total of 26 insurers submitted the filings. These 26 insurers represent 52.75 percent of the market based on premium volume. Approved rates increased on average by 0.60 percent when applied across the total market.
Rate changes since 2013 now total 6.45 percent. The government rate reduction strategy calls for a 15 percent reduction by August of this year.
Ongoing tinkering with the product is not working. It is time for the government to get away from tinkering with the system and eliminate the existing design flaws. A public debate is badly needed. See my plan for moving forward.
Rate changes since 2013 now total 6.45 percent. The government rate reduction strategy calls for a 15 percent reduction by August of this year.
Ongoing tinkering with the product is not working. It is time for the government to get away from tinkering with the system and eliminate the existing design flaws. A public debate is badly needed. See my plan for moving forward.
Wednesday, July 15, 2015
Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners
We previously posted on the Divisional Court's decision in Ziebenhaus v.Bahlieda (click here for our original post). In that case, the Divisional Court held that courts have inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner". In Ziebenhaus, the particular assessor was a vocational assessor.
The Court of Appeal has now confirmed the Divisional Court's decision at 2015 ONCA 471 (C.A.).
It held:
Ziebenhaus may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.
The Court of Appeal has now confirmed the Divisional Court's decision at 2015 ONCA 471 (C.A.).
It held:
[13] The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under s. 105, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.
Ziebenhaus may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.
Wednesday, July 8, 2015
Admissibility of Expert Evidence
The Supreme Court of Canada recently commented on the standards for admissibility of expert evidence. Although the case originated out of Nova Scotia, it is equally applicable to Ontario and should be taken into account when retaining experts.
In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 S.C.C. 23, shareholders started an action against the company's former auditors after a different accounting firm (Grant Thornton) identified problems with the former auditors' work. In response to the defendant's summary judgment motion, the plaintiffs hired a forensic accountant from Grant Thornton to prepare an opinion. The motions judge struck out the forensic accountant's affidavit on the basis that she was not an impartial witness; the Court of Appeal allowed the appeal.
The Supreme Court of Canada dismissed the appeal.
The inquiry for determining the admissibility of expert evidence is divided into two steps. First, the proponent of the evidence must establish the threshold requirements for admissibility (found in R. v. Mohan): relevance, necessity, absence of an exclusionary rule and a properly qualified expert. Second, the judge must exercise a gatekeeper function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits outweigh the risks. Concerns about an expert's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.
Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. Underlying the duty are three concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in that it does not unfairly favour one party's position over another.
A proposed expert's independence and impartiality goes to admissibility and not simply to weight, and there is a threshold admissibility requirement in relation to this duty. Once the threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis the judge conducts to carry out the gatekeeping role.
In the circumstances, the evidence should not have been excluded as there was no basis to conclude the expert was not able and willing to provide the court with fair, objective and non-partisan evidence.
In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 S.C.C. 23, shareholders started an action against the company's former auditors after a different accounting firm (Grant Thornton) identified problems with the former auditors' work. In response to the defendant's summary judgment motion, the plaintiffs hired a forensic accountant from Grant Thornton to prepare an opinion. The motions judge struck out the forensic accountant's affidavit on the basis that she was not an impartial witness; the Court of Appeal allowed the appeal.
The Supreme Court of Canada dismissed the appeal.
The inquiry for determining the admissibility of expert evidence is divided into two steps. First, the proponent of the evidence must establish the threshold requirements for admissibility (found in R. v. Mohan): relevance, necessity, absence of an exclusionary rule and a properly qualified expert. Second, the judge must exercise a gatekeeper function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits outweigh the risks. Concerns about an expert's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.
Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. Underlying the duty are three concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in that it does not unfairly favour one party's position over another.
A proposed expert's independence and impartiality goes to admissibility and not simply to weight, and there is a threshold admissibility requirement in relation to this duty. Once the threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis the judge conducts to carry out the gatekeeping role.
In the circumstances, the evidence should not have been excluded as there was no basis to conclude the expert was not able and willing to provide the court with fair, objective and non-partisan evidence.
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