Insurance News - Monday, February 29, 2016

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, February 29, 2016:

• Bramalea-Gore-Malton MPP Jagmeet Singh wants industry profits used to drive down auto insurance rates.
• The U.S. National Highway Transportation and Safety Administration told Google that the artificial intelligence system that controls its self-driving car can be considered a driver under federal law.
• Uber has agreed to pay $28.5 million to about 25 million passengers to settle two San Francisco class actions over the way it advertises its services.
• Google is killing off the car-insurance comparison tool that it rolled out last year.
• Uber's popularity is prompting Canadian insurance companies to introduce coverage for drivers carrying paying passengers in their personal vehicles.

Electronic Proof...Still Not in Canada

Three years ago, I wrote an article about the status of electronic insurance cards.  Despite the fact that smartphones, tablets and other technological gadgets are now part of everyday life, providing proof of auto insurance coverage is like a nostalgic trip back to the days of our parents or grandparents.  In Canada,insurance companies and brokerages continue to mail, fax and e-mail copies of the standard pink insurance slips to policyholders upon renewal or policy changes.

Back in 2012, the Property Casualty Insurers Association of America (PCIAA) reported that 11 U.S. states had laws or regulations on the books that allow for electronic insurance cards to be used for both vehicle registration and when being pulled over by the police.  The PCIAA now reports that 43 U.S. states have enacted legislation which permits some form of electronic proof of insurance including electronic delivery and the use of an electronic image as evidence of coverage.  Clearly, electronic insurance cards are well accepted in the U.S.

Why is the U.S. and Canadian experience so different?

For one thing, not all Canadian jurisdictions use the standard 'pink slip.'   The public insurers in British Columbia, Manitoba and Saskatchewan have combined the insurance card with and the provincial motor vehicle registration card.  Quebec is a little different because private insurers sell physical damage coverage and must provide an insurance certificate.  There is no colour requirement and the document can be emailed, although electronic proof of insurance is still not permitted.

In Canada, there has been a perception that electronic delivery of insurance cards or electronic proof of insurance might be more at risk to fraud.  In fact, the paper insurance card is quite susceptible to fraud.  Police officers have no way to validate whether a pink slip provided by a driver is valid and unexpired, and therefore are inclined to just accept it.  

There are also concerns regarding privacy and liability.  When a driver hands over his or her mobile device to a police officer to show proof of insurance, can the officer access other information on the device?  What happens if the police officer drops and damages a mobile device while verifying insurance coverage?  Who Is liable for damages?

The U.S. experiences provide numerous examples of statutory or regulatory approaches to addressing these issues.  In Canada, many legal barriers to e-commerce have been eliminated.  Yet the insurance sector has clung to paper insurance cards. 

In Ontario, there is no legislative requirement that insurance cards be in paper form.   The Compulsory Automobile Insurance Act (sections 3 and 6) requires that a driver must always have an insurance card in their vehicle and must make it available to a police officer for inspection.  It does not stipulate what the card is to look like.  The Ontario Superintendent of Financial Services sets out the content, size and colour of the insurance card through a bulletin.  Consequently, the Superintendent has the authority to approve an electronic insurance card.  No statutory amendment is likely required.

It is inevitable that electronic proof of insurance will come to Canada. The technology exists.  It just seems that no one particularly wants to be the first to make the move.

SJC holds worker's compensation lien does not apply to damages allocated to pain and suffering

Robert DiCarlo and Bernard Martin were both injured in the course of their employment and received worker's compensation benefits from Twin City Insurance Company.  They subsequently settled third-party claims.  Those settlements included damages for pain and suffering. 

The insurer sought reimbursement for itsworker's comp payments, including reimbursement from the pain and suffering portions of the third-party settlements. 

In DiCarlo v. Suffolk Construction Co., Inc. __ N.E.3d __, 2015 WL 10045032 (Mass. 2016), the Supreme Judicial Court of Massachusetts has held that the worker's comp lien does not extend to damages allocated to an employee's pain and suffering.

The SJC based its decision on  interpretation of the word "injury" in Mass. Gen. Laws ch. 152, §15, the statute allowing worker's comp insurers to recover "the gross sum received in payment for the injury." 

Insurance News - Friday, February 12, 2016

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Friday, February 12, 2016:

• Trial lawyers and victims group call for inquiry into the use of medical evidence by auto insurers in insurance claims.  Personally, I believe this is symptomatic of a much bigger problem.
• A startup at the Massachusetts Institute of Technology hopes to replace insurance agents with artificial intelligence and make buying auto insurance as easy as texting a photo of your license plate.
• Uber lost its bid to freeze a lawsuit bound for trial over California drivers’ demands to be treated as employees while the company appeals rulings that dramatically increased the stakes in the case.
• A recent Usage-Based Insurance (UBI) study forecasts that 380 million semi, highly or fully autonomous vehicles (AVs) will be on the road by 2030. In the decade preceding 2030, the penetration of active safety and autonomous vehicles will reduce the number of accidents by more than 30%, leading to a significant reduction in insurance premiums.
• Uber is piloting a new way to check the quality of its drivers — by monitoring their driving, speed and distractedness via their smartphones, using the devices’ geolocation information, accelerometers and gyrometers (which reveal whether a person is, for example, moving their phone around while driving) - essentially a telematics application.

Insurance News - Thursday, February 11, 2016

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, February 11, 2016:

• Developers of driverless cars promise fewer deaths and injuries from car accidents.That could also mean fewer cases for lawyers who handle auto injury litigation, but opinions differ on how much of a threat driverless cars pose to lawyers' livelihoods.
• The guy who solved Uber’s insurance problem has no insurance background.
• Google is disappointed to learn that driverless cars will need a driver in CaliforniaThe state's Department of Motor Vehicles wants someone behind the wheel in case something goes wrong.
• Meanwhile, the National Highway Transportation and Safety Administration told Google that the artificial intelligence system that controls its self-driving car can be considered a driver under federal law.
• Edmonton will become the first Canadian city to allow ride-sharing companies like Uber to legally operate after city council approves a ride-sharing bylaw.

Massachusetts Appeals Court affirms surcharge despite unrebutted testimony

Commerce Insurance Company imposed a surcharge against its insured following a motor vehicle accident.  The insured appealed to the Board of Appeal on Motor Vehicle Liability Policies and Bonds.

The insured testified that he was driving 35 mph, 60 to 70 feet behind another vehicle.  The driver of the other vehicle stopped and simultaneously activated the left directional.  The insured braked but rear-ended the stopped vehicle.  

The Board found that the totality of the evidence supported the presumption set out in 211 C.M.R. §74.04 that the operator of a vehicle shall be presumed to be more than 50% at fault when operating a vehicle which is in collision with the rear section of another vehicle. 

The Superior Court affirmed the decision of the Board, and the insured appealed to the Massachusetts Appeals Court.  In Markuns v. Commerce Ins. Co., 2016 WL 392987 (Mass. App. Ct.) (unpublished) the insured argued that the judge erred in not concluding that the Board should have credited his testimony because it was unrebutted.

The court disagreed, holding that the Board is not bound to accept unrebutted testimony. 

Drone insurance

New England Cable News covers the ins and outs of it in this story.

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U.S. District Court holds worker's comp carrier cannot intervene in third-party claim

Brian Goodrich brought a products liability case alleging that he was injured while using a machine in the course of his employment.  His worker's comp insurer, NorGuard, moved to intervene in the case, asserting that it has a subrogation interest in any potential damages recovered by Goodrich.

In Goodrich v. Cequent Performance Prods., Inc., 311 F.R.D. 22 (D. Mass. 2015), the United States District Court for the District of Massachusetts denied the motion to intervene. 


Fed. R. Civ. P. 24(a) allows a party to intervene if the party claims an interest relating to the property or transaction at issue.  However the rule has an exception if "existing parties adequately represent that interest." 




Mass. Gen. Laws ch. 152, §15 provides that sums recovered in a third-party claim where the worker's comp carrier has paid a claim for that same injury are for the benefit of the insurer up to the sum it paid.  The insurer has an opportunity to be heard on a motion for approval of any settlement of the claim. 


The statute also bars the insurer from bringing suit against a third party if the injured employee has already filed suit against that party.