1st Circuit holds insurer did not discriminate by not basing sober house premiums on three-family house premiums

PSI operates two sober houses for individuals suffering from substance abuse.  Each house has three floors and capacity for 30 residents.  Prior to the buildings becoming sober houses they were three-family rental properties. 


PSI sought insurance from Nautilus Insurance. Nautilus based the premiums on the category of "Halfway Houses -- Other Than Not-For-Profit."  Just as with shelters, rooming houses, transitional housing for the formerly homeless, student housing, etc., premiums were calculated according to the number of beds at the property.


PSI  sued Nautilus, alleging that its calculation of premiums violated the Fair Housing Act.  It alleged that Nautilus should have provided PSI with insurance rates applicable to three-family houses.


The FHA makes it unlawful to discriminate in the sale or rental of a dwelling because of a handicap, including substance abuse. 


In PSI, LLC v. Nautilus Ins. Co., 2014 WL 740 (D.Mass. 2014), the court first held that PSI had standing to bring the FHA suit because it properly alleged it was harmed by Nautilus's allegedly discriminatory rates.


The court held that Nautilus was not liable for discrimination on the basis of disparate treatment of PSI.  Nautilus  had a nondiscriminatory reason for classifying the sober houses as halfway houses rather than three-family dwellings: they were not operating as three-family dwellings and therefore posed a different liability risk.  The sober houses would have more foot traffic and higher turnover of tenants.  The premium determination was not made because of disability of the residents but on the same formula that applied to other types of housing such as boarding houses and rooming houses.


The court held that Nautilus also could not be liable under a disparate impact theory.  PSI alleged that because premium calculations for three-family houses are not based on the number of occupants, Nautilus' occupancy-based premium calculation for sober houses was facially discriminatory and disadvantageous to the disabled.  The court held that there was no evidence that the challenged practice caused a discriminatory effect, and that Nautilus had provided a legitimate, nondiscriminatory reason for its rates. 


The court held that the request for lower premiums was not a reasonable accommodation and was  unnecessary to allow the residents to enjoy the housing in question where there was no evidence that cost-savings would be passed on to residents. 


Finally, the court held that PSI's allegation that Nautilus violated the Americans with Disabilities Act must fail for the same reasons as the FHA claims must fail. 

Negligent drivers liable to rescuers for injuries that are reasonably foreseeable

A recent summary judgment motion dealt with the extent of the duty of care owed to rescuers.

In Maguire v Padt, 2014 ONSC 6099 (S.C.J.), the defendant, Suzanne Padt, was driving in whiteout conditions when she lost control of her car and rolled into a ditch. Several passing motorists pulled over to rescue Padt from her car. After placing Padt safely in a police cruiser, the rescuers were preparing to return to their vehicles when another passing car lost control and drove into them. Two of the rescuers were killed and a third was seriously injured.  They commenced an action against Padt.

Padt brought a motion for summary judgment, arguing that the duty of care that she owed to her rescuers concluded at the end of the rescue and that the rescue had concluded when she was removed from imminent peril and was safe in the police car.

In its decision, the court first reviewed and affirmed the established legal principle that negligent parties who cause themselves or others to be placed in danger owe a duty of care to the responding rescuers.

The court stated that the rationale underlying this duty was that injury to rescuers was a reasonably foreseeable consequence of the negligent conduct that led to their involvement. The court stated that the negligent party should be liable for any injury that was a reasonably foreseeable consequence of the negligent conduct – not just for injuries that occurred while the person being rescued was in peril. The court put it this way: “It is foreseeability, not the end of the peril, that sets the limits of the liability.”

Given the whiteout conditions on the road, the court found that the second accident was a reasonably foreseeable consequence of Padt’s negligent conduct. The court dismissed Padt’s motion and, under the assumption that Padt was negligent in causing the first accident (which was accepted for the purpose of the motion), granted partial summary judgment in favour of the plaintiffs.

Insurance News - Monday, January 12, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, January 12, 2015:

• As the number of car fatalities falls Americans are now more likely to die from getting shot than in car accidents.
• This is incredible.  With all the articles and warnings about distracted driving, a website operated by the Toronto Star is suggesting that drivers exercise in their car while stopped at red lights.
• Is it a good idea to lower the cost of auto insurance and risk under-insuring yourself?
• China’s transport ministry has banned taxi hailing apps such as Uber from using cars and drivers without taxi licences in a bid to regulate the rapidly growing sector.
• Driverless car technology will rollout gradually. The first driverless cars will likely allow the car to self-drive in stop-and-go highway traffic, but when traffic clears the driver takes the wheel again.

Insurance News - Saturday, January 10, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Saturday, January 10, 2015:

• A British insurer may be the first in the industry to offer driving lessons for drivers’ weaknesses based on telematics data.
• Florida auto insurance anti-fraud reforms that become effective on January 1, 2013 has created a drop in the number of personal-injury protection claims filed and dollars sought.
• GM and OnStar will be partnering with a U.S. insurer allowing new car owners to opt into a service that will track driving habits during a 90 day span.
• Google may be moving into the U.S. auto insurance market with a shopping site for people to compare and buy policies, as it continues to shift its attention to the automotive industry.
• A Towers Watson study suggests that claim supervisors spend too little time reviewing files of direct reports which is impacting on profitability.

Insurance News - Thursday, January 8, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, January 8, 2015:

• Will Google cars eviscerate the personal injury bar?
• With an aging population and reduced driving, what will happen to the industry if auto claims keep dropping?
• California to offer low-cost car insurance (under $450) and drivers licences to illegal immigrant drivers to reduce the number driving uninsured.
• The private company hired by the province to conduct all driving exams was failing to properly road test tractor-trailer drivers.
• Ridesharing and Car Insurance: A little white lie?
• It’s not just drunk and distracted drivers that are dangerous but drowsy drivers as well.

Municipality Has No Duty to Negligent Drivers

The Court of Appeal recently held that there is no duty on the part of a municipality to keep its roads safe for those who drive negligently.  It also rejected an argument that there is a different standard for rural and urban drivers.

In Fordham v. Dutton-Dunwich, 2014 ONCA 891 (C.A.), the 16-year-old plaintiff was seriously injured when he came to a rural intersection, ignored a stop sign and drove through the intersection at 80 km/hr.  He lost control on a curve and crashed into a concrete bridge abutting the road.  The trial judge found the municipality 50% responsible for failing to post a checkboard sign warning of the change in the road's alignment.  She held that it was local practice for rural drivers to go through stop signs and the municipality should have known that ordinary rural drivers do not always stop at stop signs.

The Court of Appeal allowed the appeal and dismissed the action.  Laskin J.A. held that a municipality's duty of repair is limited to ensuring its roads can be driven safely by ordinary drivers exercising reasonable care.  In addition, there cannot be one standard of reasonable driving for rural drivers and another for city drivers.  There is one standard of reasonable driving and that standard requires drivers to obey traffic signs.

Fordham helps define a municipality's standard of care: although ordinary reasonable drivers are not perfect and may make mistakes, they are not negligent.

OWCP and reports from someone who is not considered a physician

In a federal workers compensation case, reports must be from a physician. A physician includes  a podiatrist for a foot condition, a psychologist who has a Ph.D., and a chiropractor ONLY for the condition of subluxation. The Employees Compensation Appeals Board has held that a report from a non-physician will be considered medical evidence if countersigned by a qualified physician. This is also found in the Procedure Manual, at Chapter 2.805.3a(1) (January 2013).