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.