Insurance News - Monday, April 13, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, April 13, 2015:

• The Ajusto smartphone app By Desjardins Insurance is a significant step forward and is capable of tracking more of a driver's habits.
• Uber looks to beef up staff for self-driving car project at its newly created Advanced Technologies Center in Pittsburgh.
• A new study finds 12% of people will likely experience severe nausea while riding in a fully autonomous vehicle.
• While Uber is locked in an ongoing dispute with the City of Toronto over its right to operate, Toronto Police have cracked down on the ride-share service in their own way. In March, officers charged at least 11 UberX drivers with violations of the Highway Traffic Act.
• U.S. insurance regulators issue guidelines for ridesharing coverage gap.
• Every industry has a doomsday scenario. Usually it involves technology. For auto insurers, it's the driverless car.

Who Is Profiting Most From Ontario Auto Insurance?

If you are involved in the auto insurance sector, yesterday was an interesting day.  The Ontario Trial Lawyers Association released a study conducted on their behalf by two York University professors suggested that insurance companies make too much money.  The Insurance Bureau of Canada countered with accusations that trial lawyers make too much money.  Who do you believe?

A lot of people have profited from Ontario's auto insurance system over the past 25 years.  Few insurance companies have exited the Ontario market in that period of time so profits must be good.  In addition, there is no shortage of lawyers working in the system both on the accident benefits side and in tort.  There are rehabilitation clinics dying for more referrals.  Tow trucks drive around our highways ready to pounce on someone after a collision.  Yet everyone complains.  Drivers in this province continue to pay high premiums. They are the true victims in the system.

On June 22, 2015 it will be 25 years since the introduction of the Ontario Motorist Protection Plan or OMPP, the first no-fault auto insurance plan in Ontario.  It has been a rocky road.  In the May 2015 issue of Canadian Underwriter, I will look back at those 25 years and discuss what has gone wrong.  Please look out for it. 

Insurance News - Friday, April 10, 2015

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

• Report funded by Privacy Commissioner raises serious concerns about telematics and what cars know about drivers.
• Hackers looking to breach insurance carriers according to New York Department of Financial Services report.
• Michigan police can check whether you have car insurance by running your plate.
• Uber is the subject of new auto insurance regulations that may go into effect in the U.S., of which it is opposed to.
• Progressive Insurance in the U.S. announces that for the first time it is increasing rates for some bad drivers based on telematics data.
• Legislation in Georgia increases auto insurance requirements for ride-share firms.

U.S. District Court holds insurer's removal to federal court untimely based on information in underlying complaint

Addison Automatics filed a lawsuit in Suffolk Superior Court seeking a declaration that defendant Netherland Insurance Company had a duty to defend and indemnify Precision Electronic Glass Company in a class action lawsuit.  In the underlying action Addison alleged that Precision violated the law by sending junk faxes. 




Netherlands removed the case to the United States District Court for the District of Massachusetts.  Addison filed a motion to remand the case to state court, contending that the removal was untimely because it was not done within 30 days of service of the complaint.  Netherlands asserted that it was not until a decision of the Superior Court on a motion to dismiss that it knew that the suit was a class action suit that could be removed.


In Addison Automatics, Inc. v. Netherlands Ins. Co., 2015 WL 461958 (D. Mass.), the court held that there was enough information in the initial complaint for the defendants to ascertain that it was a class action suit.  Among other things, it referred to the complaint in the underlying litigation, which was a class action.  The defendants could have determined from that that Addison was seeking relief not just for itself but as a representative of the class. 

The Standard of Care for Grocery Stores

The Court of Appeal has once again confirmed that the standard of care for occupiers is reasonableness, not perfection.

In Saisho v. Loblaw Companies Ltd., 2015 ONCA 172 (C.A.) the elderly plaintiff was hit in 2007 by a customer pushing an overloaded shopping cart.  One customer (Beardy) paid for his purchases and loaded his cart.  His friend, Sakakeep, paid for his purchases independently as he was paying, Beardy loaded Sakakeep's purchases into the same cart.  As they moved toward the exit, Beardy bumped into the plaintiff.  The plaintiff suffered severe injuries and was in hospitalized from the date of the incident to his death in 2010.  The claim was dismissed at trial and the plaintiff appealed, alleging that the store should have had a specific policy on overloaded carts and required cashiers to specifically look to ensure customers did not overload the carts.

The Court of Appealed disagreed.  The store had a general policy to be alert for potentially dangerous activities.  Staff were aware that overloaded carts had the potential to cause injury or harm, and if they saw one, they would intervene.  The Court held that to require a standard specifically addressing the problem of overloaded shopping carts would present a standard of perfection, which is not what the law requires.

The trial judge concluded that it was not reasonable to expect a cashier to look behind her to ensure that two distinct customers were not loading their purchases into one cart.  He concluded it was reasonable for the cashier not to have intervened.   The Court of Appeal upheld the decision, holding that the standard of care is reasonableness in the circumstances, and the store met the standard.

Full Costs Awarded to Defendant Where Plaintiff Abandoned Case at Trial

Plaintiffs who make unsubstantiated allegations of fraud may be liable for substantial costs if they later decide to abandon their claim.

In Sienna v. State Farm, 2015 ONSC 786 (S.C.J.), the plaintiff sued her own insurer for failing to pay non-earners benefits.  The Statement of Claim sought $900,000 for punitive and aggravated damages caused by the defendant's bad faith.  It made allegations of "unlawful claims practices" and a "conspiracy" aimed at the plaintiff and other policyholders.  The matter was set for trial commencing January 26, 2015.  On January 14th, the plaintiff advised she was abandoning her case and would call no evidence.

The issue then became costs.  The defendant sought costs on a substantial indemnity basis, arguing the claim was without merit, it made a reasonable offer to settle, and the allegations against it were akin to fraud.  The plaintiff argued the allegations in her Statement of Claim were not outrageous and are commonly plead in accident benefits cases, that the defendant should have brought a motion to strike the allegations, and that the defendant should have ceased its trial preparation after a similar case ruled favourably for another insurer.

Justice Arrell did not accept the plaintiff's arguments.  He did not agree the allegations are common, when there is no foundation or evidence to support them.  They were akin to fraud.  The defendant should not be put to the expense of striking allegations made in the Statement of Claim; on the contrary, the plaintiff should have withdrawn the offensive portions.  There was no merit to the argument the defendant should have ceased trial preparation as the favourable analogous decision was being appealed, and the plaintiff had not abandoned her claim.

Justice Arrell awarded the defendant the total amount of its bill of costs, plus $2,000 for the costs motion, for a total of $35,92.97.

Insurance News - Monday, March 30, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, March 30, 2015:

• Ontario may increase mandatory reporting limit for collisions with no injuries to $2,000, from the $1,000 level set in 1998.  Five provinces have already increased their limits.
• Toronto Uber provides drivers with little information about insurance, including the name of their insurer.  Consumers should be aware that drivers' insurance policy may not provide them with coverage.
• New York’s top financial watchdog warned insurers this week about charging higher prices to customers least likely to shop around, the latest state to raise questions about how the industry uses data when setting rates.
• Alberta road safety bill has been passed by Legislature and will introduce demerit points for drivers convicted of distracted driving.
• Google explains why they created the driverless car.