The Definition of "Dependency" Under the SABS

Does an adult child attempting to become self-supporting qualify as a "dependent" under the SABS? The answer may be "yes", depending on the person's circumstances at the time of the accident.

In State Farm v. Bunyan, 2013 ONSC 6670 (S.C.J.), Mr. Bunyan was a pedestrian who was catastrophically injured in a motor vehicle accident.  He moved out of his mother's house after high school, lived with a girlfriend and had a child.  He moved twice to Alberta to find work, but came back to his live with his mother each time.  At the time of the accident he had $0.24 in his bank account and was covering his daily expenses with money from his mother.  He had problems with alcohol.  Corbett J. was satisfied that Mr. Bunyan would have continued relying on his mother's support until she refused help or he obtained help with his alcohol issues.

Corbett J. held that "dependency" must be assessed looking at four factors:

1.  Amount of dependency;
2.  Duration of dependency;
3.  Financial or other needs of the alleged dependent; and
4.  The ability of the alleged dependent to be self-supporting.

Corbett J. held that Mr. Bunyan was principally dependent on his mother: although he was seeking to become self-supporting, more than half of his day-to-day expenses were covered by his mother, he had not found permanent accommodation, had not obtained transportation, had not established that he could keep steady employment, was not paying child support, had no savings, and had problems with alcohol.  He therefore qualified as an "insured person" under his mother's policy.

US District Court holds that damages from faulty workmanship are not an occurrence

UMass hired Five Star to upgrade the HVAC system in the Morill Science Center.  As part of its work Five Star sometimes penetrated the building roof and installed temporary patches to protect the building until permanent patches and flashing could be installed.

During a severe rainstorm several temporary patches failed and rainwater penetrated the roof, causing damage to insulation and to the interior of the building and its contents. 

Five Star sought coverage from its general liability insurer, General Casualty.  General Casualty agreed to cover most of the loss, but denied coverage for damage to the roofing system. 

The first issue before the court was  whether faulty workmanship is an "occurrence," an issue over which there is much disagreement around the country.  In General Casualty Co. of Wisconsin v. Five Star Building Corp., 2013 WL 5297095 (D. Mass.), the United States District Court for the District of Massachusetts held, not in so many words, that the question was irrelevant, because the rain damage itself was an occurrence whether or not faulty workmanship was an occurrence. 

Assuming that Five Star engaged in faulty workmanship, its workmanship extended only as far as the installation of temporary patches and not to the roof itself.  Thus, Five Star does not seek coverage for faulty workmanship itself, but rather coverage of the damage resulting from the rainstorm even if such allegedly faulty workmanship contributed to the leaking.  The rain damage to the roofing system, therefore, is an "occurrence" under the policy.

SJC seeks amicus briefs on attorney's fees for PIP cases

The Supreme Judicial Court of Massachusetts is seeking amicus briefs in the following case:

SJC-11561     
Barron Chiropractic & Rehabilitation vs. Norfolk & Dedham Group

Whether an insurer can be liable for costs and attorney's fees in an action pursuant to G. L. c. 90, � 34M, on a claim that it failed to pay PIP benefits in accordance with the statute, if the insurer, allegedly for business reasons unrelated to the merits of the litigation, tenders payment of the full amount of the disputed benefits after the commencement of the action but before a judgment has entered against it.

Scheduled for March argument.

The Standard of Care in Parking Lots

The Divisional Court recently considered an appeal involving the standard of care in a parking lot.  The primary conclusion is that the Highway Traffic Act does not generally apply to parking lots.

In Bossio v. Ramsahoye, 2013 ONSC 6878 (Div. Ct.), the parties were in a motor vehicle accident in a GO Train station parking lot.  The plaintiff was driving northbound in the centre lane of the parking lot, and the defendant was westbound in one of several exit lanes.  The trial judge's charge referred to the location of the accident as "a completely neutral intersection". The jury dismissed the action and the plaintiff appealed.

The plaintiff alleged that the trial judge erred by failing to instruct the jury that the common law duties of drivers approaching an uncontrolled intersection set out in the Highway Traffic Act would apply.  The defendant submitted that:

47. The absence of any reference to the Highway Traffic Act at first instance was not inadvertent. The Highway Traffic Act generally has no application to private parking lots. While the Act and the rules of road therein have been found to apply to certain peculiar parking lot situations (i.e. where the parking lot has a dual function as a thoroughfare, or where the Act provision at issue does not use the word “highway” or any word that incorporates the word “highway in its definition), this was not the case at hand and there was never any dispute as between the parties on this point.

48. The authority cited by the Plaintiff does not support her assertion that there are duties at common law equivalent to those found in the Highway Traffic Act, applicable where the Act is silent. At most, the “rules of the road” are distillations of what amounts to reasonable care and offer guidance to situations not covered by the Act.

49. Had the Highway Traffic Act applied, this would have been to the benefit of the Defendant, not the Plaintiff. Under the rules of the road, and specifically subsection 135(3) of the Act, when two vehicles enter an uncontrolled intersection of highways at approximately the same time, the driver on the right (the Defendant in this case) has the right of way.

The Divisional Court agreed with the defendant's submissions and dismissed the appeal.  

 

Attendant Care Benefits under SABS-2010

Can an insurer pro-rate attendant care benefits payable based on the hours of work lost by the attendant care provider?

Tyrone Henry was left a paraplegic after a motor vehicle accident in September 2010. His mother took an unpaid leave of absence from work to provide the full-time care he required. Gore Mutual Insurance took the position that the attendant care payments were limited to the number of hours that Tyrone Henry’s mother had been working as a proportion of the total attendant care hours assessed as reasonable.

Tyrone Henry brought an Application before the Ontario Superior Court (Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687) taking the position that he was entitled to the total attendant care hours. The judge agreed. At issue was the interpretation of the Statutory Accident Benefits Scheduleeffective September 1, 2010 (“SABS-2010”). Justice Ray commented that the intent of SABS-2010 was “to prevent a member of an insured’s family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway and would have looked after the injured person without compensation”. This was not the case with Tyrone Henry’s mother who was employed full-time. Justice Ray held that Gore Mutual was obliged to pay to Tyrone Henry all reasonable and necessary attendant care expenses he was obliged to pay his mother, not limited to the economic loss she sustained from leaving her 40 hour per week job.

Gore Mutual appealed to the Ontario Court of Appeal (Henry v. Gore Mutual Insurance Company 2013 ONCA 480). The appeal was dismissed. The Court held that Justice Ray was correct in concluding economic loss was a threshold for entitlement to, but not a measure of, reasonable and necessary attendant care benefits to be paid by an insurer. Once Tyrone Henry’s mother sustained an economic loss, attendant care benefits were payable with respect to all the care she provided to him.

As a result of this case, regardless of the attendant care provider's amount of lost income, as long as they experience a loss of income, they will receive the entire benefit.  This will result in some attendant care providers earning more than they would have if they had not left their employment and others earning less. 

Damages for Intentional Tort Survive Bankruptcy

The Court of Appeal recently released a decision that looks at the interplay of tort law and bankruptcy.

In Dickerson v. 1610396 Ont. Inc. (c.o.b. Casey's Pub & Grill), 2013 ONCA 4955 (C.A.), a jury awarded the plaintiff damages against the defendant in excess of $1 million arising out of an assault.  The defendant punched the plaintiff once in the head, causing the plaintiff to lose consciousness, fall to the ground and sustain brain damage.  As a result of the judgment, the defendant declared bankruptcy.  The plaintiff brought a motion for an order that the award of damages survived bankruptcy, based on s. 178(1)(a.1) of the Bankruptcy and Insolvency Act, which provides:

178(1) An order of discharge does not release the bankrupt from 

 (a.1) any award of damages by a court in civil proceedings in respect of 

(i) bodily harm intentionally inflicted, or sexual assault or 

(ii) wrongful death resulting therefrom.

The motions judge held that although the jury found the defendant "deliberately punched the plaintiff in the head", the verdict did not provide a framework to assess whether it was an "intentional infliction of bodily harm". She dismissed the motion and the plaintiff appealed.

The Court of Appeal allowed the appeal, holding that s. 178(1)(a.1) will apply where there is direct proof of intentional infliction of bodily harm or where it can be reasonably inferred.  As long as there is intent, the section will apply; there is no requirement to show the circumstances were sufficiently offensive to social mores to justify withholding the protection of bankruptcy.

Still fighting to get releases of liability removed from Boston Public Schools permission slips

I have posted here, here, here, and here on my efforts to have releases of liability removed from field trip permission slips Boston Public School parents are required to sign.

This past Wednesday I returned to the Boston School Committee.  I spoke during the public comment period and pointed out that last February the BSC had requested that the BPS legal department report back to it on whether other school systems in Massachusetts require similar releases of liability.  That report has not happened yet.  I again requested that the releases of liability be removed from permission slips. 

The following is the handout I gave to the School Committee members (slightly redacted to protect the privacy of my children): 

 FOLLOW UP ON RELEASES OF LIABILITY IN FIELD TRIP PERMISSION SLIPS

 

THE ISSUE:  Boston public school permission slips require parents to sign a release of all rights if their child is injured on a field trip. 

 

The release includes “any acts of negligence or otherwise from the moment that my student is under BPS supervision and throughout the duration of the trip.” 

 

In the release, parents agree “to indemnify and hold harmless BPS and any of the individuals and other organizations associated with the BPS in this field trip from any claim or liability arising out of my child’s participation in this field trip.” 

 

PREVIOUS COMMENT BEFORE THE SCHOOL COMMITTEE, AND LACK OF PROMISED FOLLOW UP

 

I spoke during the public comment period on this issue at the School Committee meeting of February 27, 2013.

 

My written comments are attached. 

 

Schoolcommittee member Mary Tamer requested a report back from the legal department on what other school systems in Massachusetts are doing.

 

I sent a follow up email in the spring and was told by Chairperson O’Neill that the School Committee would reach the issue but not before the conclusion of the current (2012-2013) school year.

 

I sent another email a few weeks ago to which I received no reply.

 

I am therefore here to again request that releases of liability be removed from field trip permission slips.

 

WHAT DO OTHER SCHOOL DISTRICTS DO?

 

First, this is not the right question to be asking.  Boston is the largest and the best school district in Massachusetts, and has among the most resources to determine what is right.  We should lead other school districts, not follow them.

 

Second, there is a great deal of variation; however, I am not aware of any school district that has a release as comprehensive as Boston’s.  I have attached permission slips from Brockton and from Chicago, which contain no waiver of liability.  I have also attached a permission slip from New York City, which releases liability “except if due to the negligence of school officials.” 

 

MASSACHUSETTS LAWYERS WEEKLY ARTICLE

 

I have attached an article in Massachusetts Lawyers Weekly which covered the issue on April 18, 2013.

 

BPS spokesperson Lee McGuire was quoted in the article.  He made two statements with which I disagree.

 

First, he stated that Massachusetts courts have upheld school releases of liability.  That is incorrect.  The case he cites, Sharon v. City of Newton, 437 Mass. 99 (2002), upheld releases in voluntary afterschool activities -- in that case, cheerleading.  It specifically reserved the question of whether a release of liability would be upheld in the context of a required school activity.

 

More importantly, McGuire asserted that the waivers of liability allow the schools to continue to offer field trips.  That is simply the wrong approach.  The BPS and its students are best protected by insurance, which is a cost of doing business, not by a waiver which allows entities to avoid responsibility for their own negligence.  If a child is seriously injured on a field trip and liability has been released, then ultimately that child will be taken care of by taxpayers through public programs that assist people with disabilities.  In the meantime the child’s family has not only suffered as a result of the child’s injury but has possibly been bankrupted by the cost of care.  It is much fairer and better for everyone -- the BPS, the students, the parents, the taxpayers -- to simply require insurance. 

 

 

CONCLUSION

 

The release of liability should be removed from field trip permission slips.  Instead, the BPS should require that its partners have adequate insurance to protect students in the event that they are injured as a result of negligence.

 

REQUEST FOR RESPONSE

 

I request that the school committee get back to me with a response by December 1, 2013.

 

ABOUT ME

 

I am a lawyer who specializes in liability insurance issues (“insurance coverage”).  As such, I spend a lot of time thinking about the purposes served by insurance,  about how risk should be reasonably delegated, and about the devastating impact on individuals and families when risk is not delegated reasonably.