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Insurer ‘playing hardball’ scores hefty fine

Oct 25, 2010

The Ontario Court of Appeal has hit an insurer with a $40,000 penalty for refusing to mediate a dispute it considered to be under the statutory threshold for personal injury damages, a move that reinforces the notion that even private mediation is in fact mandatory.


The dispute in Keam v. Caddey arose out of a motor vehicle accident in which Glen Keam suffered personal injuries. The defendant’s insurer defended the action.


In the meantime, Keam’s representatives sent two formal requests for private mediation that referred to cost consequences for refusal. The first request was completely ignored.


The second elicited a response claiming the insurer didn’t believe the injuries met the threshold test under s. 267.5(5) of the Insurance Act.


The trial judge, Superior Court Justice Alan Whitten, found the claim met the statutory threshold but accepted the insurer’s position as legitimate and declined the appellant’s request for substantial indemnity costs.


He referred to the Supreme Court decision in Young v. Young, which said that the type of conduct necessary to attract substantial indemnity costs must be “reprehensible, scandalous or outrageous.”


He also differentiated between a refusal to mediate or settle based on an apparently reasonable assessment and high-handed behaviour.


Both levels of court characterized the insurer’s tactic as “hardball,” but the trial judge found it wasn’t malevolent. The appeal court decision, written by Justice Kathryn Feldman, took a different approach.


She said there are two obligations on the parties: to participate in mediation and to attempt to settle as expeditiously as possible.


She also found there are no exceptions to the obligations and no legitimate reason to refuse given that “it is this approach that the legislature has disavowed by making mediation mandatory.”


As a result, Feldman found the insurer’s non-compliance attracted a significant penalty by ordering a $40,000 increase in the costs to reflect the court’s censure and provide a significant recovery for the appellants.


Lawrence Hatfield, a partner at Flaherty Sloan Hatfield in Hamilton, Ont., who represented the plaintiff, feels the court has enforced what the legislature intended.


“Both parties are required to settle out of court, and insurers have an even higher onus to do it in a reasonable manner because of the inequity between insurers and accident victims,” he says. “When insurers lose cases, they write a cheque. When a plaintiff loses, it’s a financial disaster.”


Hatfield hopes the outcome will now change the insurer’s attitude. “To meet the threshold to successfully bring a lawsuit, you need to show that an injury is permanent and serious.


What happens is that when clients with soft-tissue injuries miss a minimal time from work, some insurers won’t pay at all. My clients have bought an insurance policy and paid premiums.


There is a fiduciary duty to assist, and when there is almost automatically an adverse attitude, it’s exasperating.”


In addition, Hatfield has observed that when his clients have assets, they are more likely to have to go to court. “The approach is to go after what I call vulnerable clients to whom going to court represents a huge risk. There needs to be something to check that sort of behaviour.”


Hatfield conveyed this sentiment to the appeal panel when it asked him whether it should send the matter back to the lower court. “I told them my personal opinion was that this insurer needed to be sent a message and not by a lower court,” he says.


“Now, if the insurer takes that approach and loses, it loses hard. That’s a powerful message. I say, ‘If you live by the sword, you die by the sword.’”


Hatfield adds that while the refusal to mediate was an important part of the appeal court’s decision, it was the insurer’s denial on the threshold issue that swayed the ruling in favour of the plaintiff.


Tom Ozere, regional leader of the insurance and tort liability group at the Ottawa office of Borden Ladner Gervais LLP, thinks the decision will have a limited effect in jurisdictions that have mandatory mediation.


“The sanctions in the rules are dramatically different from what the Court of Appeal said,” he notes.


“In jurisdictions that don’t have mandatory mediation, the effect will be that parties must participate if one of the parties requests it. It goes both ways. An insurer could request it, and I would expect the same result will follow.”


Brian Goldfinger, directing lawyer at Goldfinger Personal Injury Law, is hopeful the decision could lead to more reasonable behaviour and quicker results but considers the $40,000 sum a mere slap on the wrist.


“To an accident victim who was making $40,000 a year before the accident and now making nothing, it’s a hell of a lot of money, but you’re talking about companies that report billions of dollars in profits every year.”


Goldfinger is also concerned that even though the court’s intention in reinforcing the mandatory nature of mediation is good, the practicality doesn’t always work out. “Mediation takes two to tango,” he says.


“There’s such a thing as bad-faith bargaining, where they set up mediation just for the sake of fulfilling the statutory requirement. They hire the cheapest mediator and sit at the table but offer zero dollars the whole time.”


In that scenario, Goldfinger thinks the parties may be better off waiving mediation altogether. “It’s a waste of everybody’s money if they are not taking it seriously.”


Ozere, meanwhile, points out that the appeal court didn’t define participation in mediation. “What happens at mediation is absolutely confidential,” he says. “An insurer could take a position similar to this case. Even if it makes a zero offer, it could still be participating.”


In Ozere’s view, such behaviour might not amount to bad faith. “We have an adversarial system,” he says. “The insurer may take a tough position and have a legitimate defence. It’s a matter of risk analysis.”


by Judy Van Rhijn


originally published Oct. 18, 2010 – Law Times

11 May, 2015
We are paying something for nothing. The mandatory accident benefits policy in Ontario provides minimal coverage for the vast number of people injured in car crashes. Presently, over 90% of victims are restricted to payment of a maximum of $3,500.00. They are forced by law to pay hundreds if not thousands of dollar PER YEAR for this coverage. Ask yourself. Would you voluntarily pay $1,000.00 per year of $3,500.00 worth of life insurance? Of course not. But the Government of Ontario forces you to pay for this very poor product. It’s time to speak to your Member of Provincial Parliament. See the full facts here. http://truthaboutinsurance.ca/drs-lazar-prisman-report/
11 May, 2015
The Ontario Trial Lawyers Association has prepared a series of blogs identifying current issues with the recent budget and how it impacts people injured by Motor vehicles. Please read the full blog here. http://otlablog.com/hidden-costs-of-the-provincial-budget/ Part One of a Three-Part Series on the 2015 Ontario Budget Last month, the Ontario Liberal government revealed its latest budget entitled “Building Ontario Up” but what it does to our auto insurance benefits is actually the opposite by significantly slashing benefits available to accident victims. This follows promises that tout more affordable insurance but do not disclose the true cost to those who find themselves in need of the coverage now, and those who will unfortunately need the protection in the future. The rationale of the Liberal government is that the reduced benefits will lower claim costs which will then be passed on to the consumer in the form of savings on premiums. A promise to reduce rates by 15% was made about two years ago but in reality, and by their own admission, has not been realized. It is estimated that since 2013 rates have decreased by only about 7%, and many of us still have not seen that reduction. On the other hand, the cuts to benefits will be effective immediately once the budget is passed. The reduced premiums come at the cost of a 50% slash to (or total elimination of) many benefits that were once part of mandatory insurance coverage prior to the 2010 reforms. The erosion of available benefits is disproportionate to any rate decrease and is unfair to consumers. According to the Liberal budget, “…costs in Ontario’s auto insurance system remain too high,” While a reduction in claim costs is welcomed by consumers and stakeholders alike, it can be achieved through other means. For example, as discussed on the OTLA blog following the release of Justice Cunningham’s review of the Dispute Resolution System late last year, insurers spent thousands of dollars on Independent Medical Assessments which account for roughly 25% of total health claims expenses. Despite this, the Liberal government made the choice to save costs by reducing available benefits rather than regulating insurer practices. The insurance industry has been crying poor through persistent lobbying (that also comes at a great cost), while profits have been on the rise since the initial cuts began in 2010. The latest benefit cuts will surely continue to boost these margins. Data released by the General Insurance Statistical Agency (GISA) suggests a dramatic reduction in Accident Benefit claims from $3.8 billion in 2009 to a low of $1.9 billion in 2012. While claims over the past year were projected to rise to $2.2 billion they are still down overall. This has allowed insurers to reap massive profits at the expense of those who need it most: accident victims. Profits remain high, payments to claimants remain low, and benefits are further restricted with trivial savings that may never end up in the consumer’s pocket. What additional cuts can we expect from this budget? The budget combines the medical and rehabilitation benefit which currently offers $50,000 of coverage and the attendant care benefit which currently offers $36,000 of coverage into one cumulative coverage limit of $65,000 – a reduction of more than $20,000. In the case of the catastrophically injured, attendant care and medical and rehabilitation benefits have been reduced from $2 million to a combined total of $1 million. This begs the question: is a 50% reduction in benefits worth a 7% reduction in premiums to some consumers in Ontario? The real kicker is that Ontario NDP leader Andrea Horwath – whose party propped up the Liberal minority in exchange for the 15% reduction to auto premiums – has publicly opposed the proposed changes stating, “…if you are talking to the insurance industry, they are going to try to paint it in a way that looks like they are really struggling. I don’t think anyone in this room believes that for a minute and I certainly don’t.” She went on further to say that “…in 2010 the (Liberal) government made changes to the policies around insurance and all that did, instead of creating an opportunity for reductions, is it created an opportunity for insurance companies to pocket more money.” So what has the Liberal government and the insurance industry offered the public in exchange for the slashing of benefits? A mandatory discount for winter tires. Think about that the next time you’re shopping for a set of Michelins. This blog post was contributed by Michael Giordano, Junior Partner and Monty Dhaliwal, Associate Lawyer of Sal Guzzo LL. B.
23 May, 2014
Ontario auto insurance: How much worse can things get for victims? Changes in 2010 created windfall profits for insurers by slashing coverage for the vast majority. We need to restore fairness and impose a moratorium on further reductions in coverage! In September 2010, the Ontario government introduced sweeping changes to auto insurance in response to pressure from the insurance industry to contain injury costs despite the industry’s long-standing failure to address systemic fraud in the system. The MIG: Minor Injury Guideline for victims The main feature of the so-called reforms was the MIG – the Minor Injury Guideline. What did it mean? Coverage for the vast majority of policyholders was slashed from $100,000 for medical and rehabilitation treatment to the paltry level of $3,500 maximum for medical and rehab needs following an accident. The MIG currently captures up to 75 per cent of all accident victims in Ontario, often without regard for the seriousness of the injuries involved. OTLA members report that many clients in the MIG typically exhaust their maximum benefit of $3,500 very quickly, leaving them without access to needed treatment. Clients are often forced in the Minor Injury category despite having injuries that could not reasonably be considered as “minor” e.g. serious fractures and brain injuries. The MIG: Major Income Generator for insurance companies It’s really no surprise what happens when premiums are increased and insurance payments are dramatically reduced for most injured accidents victims. In fact, the “good news” for insurance companies started to become apparent almost immediately. Here’s what one insurance CEO quipped, perhaps a bit too candidly, mere months after the changes: “We are starting to see the benefits of the 2010 auto reforms in Ontario, which is combining with our recent focus on proactive broker management and underwriting discipline to generate stronger results.” The early trend that this CEO was talking about here materialized and, by the end of 2012, total auto insurance claims were down more than 20 per cent or a reduction of $4 billion. The tally for auto insurers was more than $3 billion in profits in the first two years following the 2010 changes. Early indications for 2013 indicate that auto insurance companies in Ontario continue to enjoy strong results to this day. It should come as little surprise to anyone that insurance companies are doing extremely well under this model: then again, you can’t lose when you’re charging more and paying out a lot less. Ontario, now the worst coverage in the country As a result of the September 2010 changes, Ontario emerged as the only jurisdiction in the country with a special category of insurance for so-called “minor” injuries. And, significantly, Ontario has the lowest level of compensation for this category of injury. Even the insurance industry’s own data supports this contention with average claims payouts down dramatically from previous levels and more claimants than ever being captured by the MIG. But how much worse can things get for victims? Once again, columnist Alan Shanoff has documented the steady slide in coverage over the past few years in Ontario. Read his comments here. He ends his article this way: “One thing is certain. The current system can’t get much worse for accident victims. Victims need timely, adequate accident benefits even more than they need premium cuts.” Help make things better for victims! As a candidate, here’s how you can help ensure that the system doesn’t get any worse for victims: Demand that your party impose a moratorium on further auto insurance coverage reductions It’s time for our politicians to stop worrying about how to allow insurance companies to make more money, and start concerning themselves with how to restore fairness in our automobile insurance system.
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