SJC holds that under PIP statute any licensed health care practitioner can conduct IME

I posted a few months ago, here, about a Massachusetts Appeals Court decision in Ortiz v. Examworks, Inc. in which plaintiff Flor Ortiz sued his insurer for having an IME for a PIP claim conducted by a physical therapist.  The Appeals Court dismissed the claim on the basis that Ortiz suffered no damages, and did not address whether the insurer had acted in bad faith. 




In Ortiz v. Examworks, Inc., 2014 WL 7930423 (Mass.), the SJC has now taken up that question. 


The SJC quoted the PIP statute, Mass. Gen. Laws ch. 90 §34M, which provides that an injured person claiming PIP benefits "shall submit to physical examinations by physicians."  The SJC held that the word "physicians" in the statute refers not only to medical doctors, but also to "additional types of licensed health care practitioners."  The court stated, "We interpret the statute to intend the broader definition of the word because it is the one most consonant with the statutory purpose." 

No Costs Awarded to Either Party

A recent decision confirms the decision a court has to make no award of costs to either party.

In Swatridge v. Waters Estate (2014), ONSC 5333 (S.C.J.), the defendant in a motor vehicle action made an offer to settle of $5,000 all inclusive.  The plaintiff's offer was for $85,000 ($55,000 net of the deductible) plus costs and disbursements.

At trial, the jury awarded $10,000 gross for general damages, and $0 for loss of income, housekeeping/home maintenance and medical/rehabilitation expenses.  After the deductible was applied, the new result to the plaintiff was $0.

Justice Ferguson declined to award costs to either side, holding that "The court cannot be blinded by the somewhat artificial characterizations of both the offer to settle and the trial result."  The reality was that an offer to settle amounting to zero dollars was made and rejected, and a trial was held and the result was a judgment for zero dollars. 

Appeals Court affirms trial decision on commissions due to insurance agent

Marguerite Cocco owned an insurance agency.  In 2002 she contracted with another insurance agency, LJM, to refer customers to it in exchange for fifty percent of commissions received from her referrals.


After a number of years LJM reduced the percentage of commissions paid and then abruptly ceased paying all commissions.  Cocco sued.


The trial judge allowed LJM's motion to preclude any evidence of unpaid commissions owed prior to August 13, 2004, based on the six year statute of limitations for breach of contract. 


After the jury-waived trial the judge found in favor of Cocco and awarded her damages for commissions due from and after August, 2004.  The judge offset the amount due by $2,000 on the ground that LJM had paid that amount in 2008. The total amount awarded was $23,058.57 plus interest. 


Cocco appealed the preclusion of evidence and the offset. 


In Cocco v. LJM Ins. Agency, Inc., 87 Mass. App. Ct. 1106, 2015 WL 709623 (unpublished), the Massachusetts Appeals Court affirmed the rulings of the trial court.


The Appeals Court held that, contrary to Cocco's argument, nothing in LJM's 2008 payment was intended to renew its promise to her so that the statute of limitations would be reset. 


The court also held that the judge properly offset the 2008 payment from the judgment.  Cocco argued that the payment should have been applied to payments due prior to 2004.  The court held, "as the judge excluded all evidence of debts prior to 2004 on statute of limitations grounds, there was no evidence properly before the court of debts prior to August, 2004."  This ruling only makes sense if Cocco made no proffer of evidence of the pre-2004 debt for the purpose of showing that the 2008 payment was for the older debts.  The exclusion of evidence of debts prior to 2004 for the purpose of recovering those debts does not equal the exclusion of debts prior to 2004 for the purpose of showing that certain payments were to offset those debts.


It is worth noting that the court also held that both of  Cocco's arguments were deemed waived as not properly preserved for appeal.   


One of the hats I wear is as an appellate lawyer.  This case serves as a reminder that the time to start thinking about an appeal is at the beginning of the case.

Government Begins FSCO Mandate Review

The Ontario government has launched a review of the mandates of the Financial Services Commission of Ontario (FSCO) and the Deposit Insurance Corporation of Ontario (DICO).

The mandate reviews were announced as part of the 2014 Ontario Fall Economic Statement.  A panel of experts has not been established to take the lead on the mandate reviews:

• George Cooke - former president and CEO of The Dominion of Canada General Insurance Company, and current chair of the board of directors of OMERS Administration Corp. 
• James Daw - former Toronto Star personal finance columnist who has written extensively about all facets of Ontario's financial system.
•  Larry Ritchie - Osler, Hoskin & Harcourt LLP partner and former vice-chair of the Ontario Securities Commission.

The FSCO mandate review is timely given a number of government actions.  In the fall, the government passed Bill 15 which includes provisions that when enacted will remove the auto insurance dispute resolution system from FSCO and create a new system at the Licence Appeal Tribunal.  In addition, the 2014 Auditor General report  proposed assigning the regulation of a number of entities (e.g., agents, adjusters and mortgage brokers) to industry associations. 

 The review will include broad consultations with the financial services sectors regulated by FSCO including the insurance sector and pension plans. As well, a consultation paper will be posted online and the public will be invited to comment on the issues being examined. The government will consider any necessary legislative changes based on the outcomes of the review. The government expects the review to be completed by early next winter.

No Duty on Municipality to Stop Teens from Climbing Trees

The Court of Appeal has dismissed an appeal from a trial decision which held that a municipality was not liable for a teenager who fell out of a tree and was rendered paraplegic.

In Winters v. Haldimand (County), 2015 ONCA 98 (C.A.), the 16-year-old plaintiff was "hanging out" with friends at a municipal park.  The tree from which he fell was one he and friends had climbed numerous times and was a type of willow found all over Ontario.  The evidence was that generations of teenagers had climbed the tree and there had never been a report of an injury before the plaintiff's incident, save when someone twisted an ankle getting out of the tree.  None of the park personnel who were at the park weekly observed anyone in the tree.  The plaintiff's mother had never seen anyone in the tree and was unaware her son and his friends used it.

The Court of Appeal held that there was no error in the trial judge's decision, stating:

[16]      Any danger posed by this tree was an obvious one.  If you chose to climb it you could fall and be injured. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond what the Township is doing at the time of this most unfortunate accident.

The Court also upheld the trial judge's decision to award costs against FLA claimants, holding that there is no general rule that no costs should be awarded against FLA claimants.

Congratulations to Sheila Handler and Brian McCall of McCall Dawson Osterberg Hanlder LLP, who were counsel at trial and on appeal.

Insurance News - Tuesday, March 3, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, March 3, 2015:

• IBC CEO Don Forgeron is suggesting that Ontario look at Nova Scotia on how to do auto insurance reforms.
• If 90% of auto accidents are due to human error, then who becomes liable when there are driverless cars on the road?
• In fact a University of Michigan study suggests that driverless cars will not be a panacea for road deaths, and could even worsen road safety for other drivers during the long transition period.
• Apple is being sued for poaching engineers to work on driverless car technology.
• A U.S. senator is urging the Justice Department to investigate insurance companies and auto repairs done at their 'preferred' repair shops across the country, because of safety concerns.

Insurance News - Saturday, February 28, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Saturday, February 28, 2015:

• The average auto insurance premium in Brampton is $2.393, the highest for Ontario cities, likely the highest in Canada.
• Lower gas prices will likely lead to more kilometers driven, more accidents and higher auto insurance rates.
• The U.K. is positioning itself to be the best jurisdictions for testing driverless cars with no geographic limits to test, no additional insurance requirements and no special licenses. Meanwhile Ontario has been taking over a year to decide what the rules should be.
• Old case but it show you how sophisticated staged accident rings can be. Peel police officer convicted of producing fake accident reports.
• It was only a matter of time, Geico is launching an insurance product for Uber and Lyft drivers in Virginia.
• Technology companies such as Google and Apple are unlikely to become mass car manufacturers, even if they have the potential to disrupt an industry increasingly focused on software and automated driving.