The Ontario Superior Court of Justice has found that the City of Toronto was not negligent in its operation of a public archery range, at which one friend catastrophically injured another in a bizarre plan to retrieve arrows.
The two friends went on a picnic during the fall of 2000 and ended up playing a casual game of archery at an open, public archery operated by the City of Toronto.
After having trouble locating arrows they had shot that had missed their targets, the two concocted a plan whereby one of them would shoot an arrow over the top of the target while another stood down range to see where the arrow would land. In this way, they would find their lost arrows.
In conducting this experiment, Patryk Stankiewicz accidentally shot an arrow that hit Wieslaw Galka, who was standing downward of the target, in the eye and lodged in his brain. Galka sued Stankiewicz and the City of Toronto for $3 million after suffering partial deafness, blindness, reduced mobility and profound psychiatric needs.
The archery range had one entrance, near which a sign was posted. Among other things, the sign said:
• "1. All persons to be clear of range before shooting can commence."
• "3. Arrows must be aimed and released at Target (butts) only."
The plaintiff, who acknowledged he was mostly at fault, basically argued the city was negligent because even though it had posted these rules, it was aware of the fact that people broke these rules all the time. Since the city did nothing to stop the rules from being broken, it must have reasonably foreseen that a stray arrow would hit someone.
Ontario Superior Court Justice Deena Baltman said the argument had "superficial appeal," but nevertheless did not "bear up under closer scrutiny."
Baltman noted in her judgment that the lawyer for the city "admitted seeing archers shooting while players at adjacent butts (targets) were on the field, [but] she never witnessed - or heard of - archers shooting while another archer was down range of the very same butt. The reason for that is likely because the danger is so obvious that no right thinking person would attempt it."
Baltman thus concluded: "The incident in question was so unpredictable that the City could not have been expected to foresee or prevent it."
Wednesday, May 26, 2010
OPP lay charges in alleged staged collision
Ontario Provincial Police have laid fraud charges against 11 people for allegedly staging a collision on Highway 400 north of Toronto in June 2009, the National Post reports.
According to the paper, nine occupants of a car and minivan, as well as two tow-truck drivers staged an early-morning collision on June 22, 2009 on Highway 400 in King Township.
"According to police, investigators became suspicious when accounts of the collision did not match the type of damage apparent on the vehicles, leading officers to believe that the collision and injuries had been staged," the National Post reported.
Canadian Press said the police investigation included information provided by insurers.
According to the paper, nine occupants of a car and minivan, as well as two tow-truck drivers staged an early-morning collision on June 22, 2009 on Highway 400 in King Township.
"According to police, investigators became suspicious when accounts of the collision did not match the type of damage apparent on the vehicles, leading officers to believe that the collision and injuries had been staged," the National Post reported.
Canadian Press said the police investigation included information provided by insurers.
Tuesday, May 18, 2010
Insurer successfully proves arson as the cause of a car fire
The Ontario Superior Court of Justice has dismissed a claim for damages resulting from a vehicular fire, determining instead that arson caused the fire.
In Salihi v TD General Insurance Company, Najib Ullah Salihi attempted to sue his auto insurer for $40,000 for breach of contract.
A fire occurred in the interior of Salihi’s Toyota Camry on Oct. 29, 2007. The damage arising from the fire exceeded the market value of the car. Salihi made a claim under his auto policy and TD General Insurance denied it.
TD General maintained that the fire was deliberately set.
At trial, TD General called on an independent expert specializing in forensic engineering and vehicle fire investigation.
The expert found the fire had been set with a combustible substance in the front passenger foot well. He also found the fire had died out from a lack of oxygen because the windows were shut tight.
Evidence at trial indicated that two nights before the accident, Salihi got into a minor vehicle collision that he did not report to the police or his insurer.
Also, a TD employee testified that this accident would have been the third in a six-month period. TD had indemnified Salihi for the previous two.
In October 2007, TD sent Salihi a notice of cancellation for non-payment of premiums, effective Nov. 25, 2007.
Evidence at trial also indicated that the car was locked at the time of the fire with no indication of a forced entry and that Salihi was the only person with keys to the vehicle at the time.
“I found the plaintiff not to be a credible witness,” wrote Ontario Superior Court Justice Wailan Low, who noted that when Salihi called 911 to report the fire, he asked specifically for a police officer, but not the fire department.
Low found Salihi had a financial motive to set the fire —including a heavy debt load and monthly car payments of $610, not including insurance — and that he was the only one with access to the car.
“In my view, the only reasonable inference to be drawn, given the origin and cause of the fire, the fact that the plaintiff had the sole opportunity to set the fire and the presence of financial motive to do so, is that the plaintiff set the fire.”
As a result, TD General has met the onus to establish its defence of arson.
Justice Low dismissed the action and awarded TD General Insurance $25,000 in costs.
In Salihi v TD General Insurance Company, Najib Ullah Salihi attempted to sue his auto insurer for $40,000 for breach of contract.
A fire occurred in the interior of Salihi’s Toyota Camry on Oct. 29, 2007. The damage arising from the fire exceeded the market value of the car. Salihi made a claim under his auto policy and TD General Insurance denied it.
TD General maintained that the fire was deliberately set.
At trial, TD General called on an independent expert specializing in forensic engineering and vehicle fire investigation.
The expert found the fire had been set with a combustible substance in the front passenger foot well. He also found the fire had died out from a lack of oxygen because the windows were shut tight.
Evidence at trial indicated that two nights before the accident, Salihi got into a minor vehicle collision that he did not report to the police or his insurer.
Also, a TD employee testified that this accident would have been the third in a six-month period. TD had indemnified Salihi for the previous two.
In October 2007, TD sent Salihi a notice of cancellation for non-payment of premiums, effective Nov. 25, 2007.
Evidence at trial also indicated that the car was locked at the time of the fire with no indication of a forced entry and that Salihi was the only person with keys to the vehicle at the time.
“I found the plaintiff not to be a credible witness,” wrote Ontario Superior Court Justice Wailan Low, who noted that when Salihi called 911 to report the fire, he asked specifically for a police officer, but not the fire department.
Low found Salihi had a financial motive to set the fire —including a heavy debt load and monthly car payments of $610, not including insurance — and that he was the only one with access to the car.
“In my view, the only reasonable inference to be drawn, given the origin and cause of the fire, the fact that the plaintiff had the sole opportunity to set the fire and the presence of financial motive to do so, is that the plaintiff set the fire.”
As a result, TD General has met the onus to establish its defence of arson.
Justice Low dismissed the action and awarded TD General Insurance $25,000 in costs.
"Scope for more flat-fee arrangements" with lawyers handling claims: procurement manager
Although 95-98% of insurers’ legal bills for handling claims files still follow a billable-hours fee structure, “there is scope for more flat-fee arrangements,” Lori Brazier, claims procurement manager for Aviva Canada, told a seminar at the CIP Society Symposium 2010 in Toronto.
But to establish a fair flat fee, an insurer would need to collect data from a detailed breakdown of legal costs. And right now at least, insurance companies and law firms do not have the IT systems required to support that type of data collection.
Insurers, financial institutions and pharmaceutical companies in the United States tried to develop a task-based code for analyzing legal fees about 15 years ago.
“They use lawyers a lot and pay a lot of money in the defence of litigation matters,” Brazier said. “The idea was to know what different categories of files should cost, do some benchmarking and see what the averages were.
“It never really went anywhere, because nobody had the systems to do the analysis, to collect the data properly and analyze it.”
Brazier knows of one situation in which a Canadian insurer retains a single law firm, BLG [Borden Ladner Gervais LLP]. BLG has a system for generating data that lets its insurer client know how many hours they are billing for certain files.
The insurer then uses this data in the preparation of its company growth plans. The insurer pays BLG a monthly fee, which is adjusted as needed, Brazier said.
“That’s pretty innovative,” she said. “I’m not aware of any other insurers doing that.”
Brazier said an insurer could try and create a system of its own to generate the data, based on an analysis of invoices for legal fees, but it would be onerous.
“We had some projects where we actually had folks sitting down in a room with boxes of files and creating the database, by entering data,” she said. “And then you can start to see a picture. You can start to see how a file is being staffed, and see whether you really have the right mix of [lawyers working on a file], or is it too senior? It’s useful to get that data.”
The complexity of producing detailed data sets has impeded many insurers from moving to a flat fee structure, Brazier suggested. And so “the hourly rate, the death of which has been predicted for 20 years, is still alive and well.”
But to establish a fair flat fee, an insurer would need to collect data from a detailed breakdown of legal costs. And right now at least, insurance companies and law firms do not have the IT systems required to support that type of data collection.
Insurers, financial institutions and pharmaceutical companies in the United States tried to develop a task-based code for analyzing legal fees about 15 years ago.
“They use lawyers a lot and pay a lot of money in the defence of litigation matters,” Brazier said. “The idea was to know what different categories of files should cost, do some benchmarking and see what the averages were.
“It never really went anywhere, because nobody had the systems to do the analysis, to collect the data properly and analyze it.”
Brazier knows of one situation in which a Canadian insurer retains a single law firm, BLG [Borden Ladner Gervais LLP]. BLG has a system for generating data that lets its insurer client know how many hours they are billing for certain files.
The insurer then uses this data in the preparation of its company growth plans. The insurer pays BLG a monthly fee, which is adjusted as needed, Brazier said.
“That’s pretty innovative,” she said. “I’m not aware of any other insurers doing that.”
Brazier said an insurer could try and create a system of its own to generate the data, based on an analysis of invoices for legal fees, but it would be onerous.
“We had some projects where we actually had folks sitting down in a room with boxes of files and creating the database, by entering data,” she said. “And then you can start to see a picture. You can start to see how a file is being staffed, and see whether you really have the right mix of [lawyers working on a file], or is it too senior? It’s useful to get that data.”
The complexity of producing detailed data sets has impeded many insurers from moving to a flat fee structure, Brazier suggested. And so “the hourly rate, the death of which has been predicted for 20 years, is still alive and well.”
Tuesday, May 11, 2010
Compu-Quote launches Web-based rating tool for recreational vehicles and motorcycles
Compu-Quote has launched its Motorcycle and Miscellaneous Vehicles quoting module to brokers in Alberta, Ontario and Quebec.
The Motorcycle and Miscellaneous Vehicle (ATVs, snow vehicles, campers and trailers) Quoting Module is a Web-based service embedded in AutoRater. It provides full underwriting and rate comparisons.
The tool permits brokers to gather specific underwriting and rating data, develops the class automatically and offers a choice of policy coverages and limits.
Jevco Insurance Company, York Fire & Casualty Insurance Company, Axa Insurance Company, Pafco Insurance Company, L’Unique General Insurance, Pembridge Insurance Company and Aviva Group (Elite), have made their rates available.
The Motorcycle and Miscellaneous Vehicle (ATVs, snow vehicles, campers and trailers) Quoting Module is a Web-based service embedded in AutoRater. It provides full underwriting and rate comparisons.
The tool permits brokers to gather specific underwriting and rating data, develops the class automatically and offers a choice of policy coverages and limits.
Jevco Insurance Company, York Fire & Casualty Insurance Company, Axa Insurance Company, Pafco Insurance Company, L’Unique General Insurance, Pembridge Insurance Company and Aviva Group (Elite), have made their rates available.
Friday, May 7, 2010
Size matters in commercial lines: MSA/Baron Report
Size does matter when it comes to writing commercial lines, although the effects vary depending upon whether Canadian commercial insurers are writing property or liability insurance, according to the Q4-2009 MSA/Baron Outlook Report.
In her article ‘Commercial Lines — Does Size Matter?’ author Barb Addie notes that “over the years, there has been an ongoing debate on which part of the market is most profitable: big, medium or small.”
“The results would indicate that the large risks are indeed the most profitable for commercial property,” Addie concludes. “The smallest risks were the least profitable (very few risks).”
For example, companies writing commercial property premiums averaging higher than $100,000 reported a five-year loss ratio of only 44.2%. In contrast, companies writing premiums averaging less than $1,000 reported a five-year loss ratio of 73.2%.
But the results for medium to large risks were much more variable, Addie added.
In fact, the five-year loss ratio for companies writing commercial property premiums averaging between $5,000 to $10,000 was only 49.6% — much lower than the 61-63% range for companies writing premiums averaging between $10,000 and $100,000.
On the commercial liability side, however, “the largest were the least rather than the most profitable,” Addie observed.
In fact, the mid-sized risks — including large liability writers such as Arch, Ace, XL Insurance and Zurich — were the most profitable, with not a lot of variability.
Overall, Addie notes, “at the current loss ratios, both commercial property and liability are profitable.”
And although “there is some talk of rates inching upwards,” Addies says, “evidence suggests that the commercial market in Canada remains soft.”
In her article ‘Commercial Lines — Does Size Matter?’ author Barb Addie notes that “over the years, there has been an ongoing debate on which part of the market is most profitable: big, medium or small.”
“The results would indicate that the large risks are indeed the most profitable for commercial property,” Addie concludes. “The smallest risks were the least profitable (very few risks).”
For example, companies writing commercial property premiums averaging higher than $100,000 reported a five-year loss ratio of only 44.2%. In contrast, companies writing premiums averaging less than $1,000 reported a five-year loss ratio of 73.2%.
But the results for medium to large risks were much more variable, Addie added.
In fact, the five-year loss ratio for companies writing commercial property premiums averaging between $5,000 to $10,000 was only 49.6% — much lower than the 61-63% range for companies writing premiums averaging between $10,000 and $100,000.
On the commercial liability side, however, “the largest were the least rather than the most profitable,” Addie observed.
In fact, the mid-sized risks — including large liability writers such as Arch, Ace, XL Insurance and Zurich — were the most profitable, with not a lot of variability.
Overall, Addie notes, “at the current loss ratios, both commercial property and liability are profitable.”
And although “there is some talk of rates inching upwards,” Addies says, “evidence suggests that the commercial market in Canada remains soft.”
Monday, May 3, 2010
FSCO outlines transition rules for Ontario's new auto reforms
As of Sept. 1, 2010, as a general rule, the New Statutory Accident Benefits Schedule (SABS) enshrined in Ontario’s new auto insurance reforms “will govern claims processing relating to old accidents,” as well as “the determination of amounts payable by insurers on account of expenses paid to establish benefit entitlements arising out of old accidents,” the Financial Services Commission says in a recent bulletin.
“Old accidents” are defined in the bulletin as automobile accidents occurring on or after Nov. 1, 1996 and before Sept. 1, 2010.
Old SABS will continue to apply, however, to the calculation of benefit entitlements for old accidents.
FSCO’s bulletin outlines some of the transition rules in play when the Ontario auto insurance reforms are implemented on Sept. 1, 2010. The bulletin is available at: http://www.fsco.gov.on.ca/english/pubs/bulletins/autobulletins/2010/a-04_10.asp
Coverages and coverage limits available in accordance with the Old SABS under any automobile insurance policy in effect prior to Sept. 1, 2010 will remain unchanged until the policy expires or is terminated. “The only exception is if the named insured and insurer agree otherwise in writing,” FSCO’s bulletin notes.
In the following sample situations, New SABS will apply to the processing of old claims [A complete list is found in the bulletin.]:
• The accident benefit claim forms currently in use will no longer be approved for old claims. Only the revised forms will be approved.
• An application for determination of catastrophic impairment (OCF-19) must be prepared by a physician or, if the impairment is only a brain impairment, by a physician or neuro-psychologist.
• An assessment of attendant care needs (Form 1) must be completed by an occupational therapist or a registered nurse.
• Interest on amounts that become overdue on or after Sept.1, 2010 with respect to old accidents will accrue at the New SABS rate of 1% per month and be compounded monthly.
But in calculating benefit entitlements, Old SABS will apply to old accidents in the following scenarios (to name a few):
• Income replacement benefits will continue to be calculated at 80% of net income.
• Coverage limits (e.g., $100,000 for medical/rehabilitation benefits) will continue to be governed by the Old SABS.
• Entitlement to caregiver, housekeeping and home maintenance benefits will continue to be governed by the Old SABS.
• Attendant care benefits will continue to be based on the hourly rates that are in effect on the date of the accident.
• The "minor injury" definition, Minor Injury Guideline and $3,500 medical and rehabilitation limit referred to in the New SABS will not apply to old accidents.
• For the purposes of old accidents, references to the Minor Injury Guideline in the New SABS will be deemed to be references to the Pre-approved Framework Guidelines under the Old SABS.
“Old accidents” are defined in the bulletin as automobile accidents occurring on or after Nov. 1, 1996 and before Sept. 1, 2010.
Old SABS will continue to apply, however, to the calculation of benefit entitlements for old accidents.
FSCO’s bulletin outlines some of the transition rules in play when the Ontario auto insurance reforms are implemented on Sept. 1, 2010. The bulletin is available at: http://www.fsco.gov.on.ca/english/pubs/bulletins/autobulletins/2010/a-04_10.asp
Coverages and coverage limits available in accordance with the Old SABS under any automobile insurance policy in effect prior to Sept. 1, 2010 will remain unchanged until the policy expires or is terminated. “The only exception is if the named insured and insurer agree otherwise in writing,” FSCO’s bulletin notes.
In the following sample situations, New SABS will apply to the processing of old claims [A complete list is found in the bulletin.]:
• The accident benefit claim forms currently in use will no longer be approved for old claims. Only the revised forms will be approved.
• An application for determination of catastrophic impairment (OCF-19) must be prepared by a physician or, if the impairment is only a brain impairment, by a physician or neuro-psychologist.
• An assessment of attendant care needs (Form 1) must be completed by an occupational therapist or a registered nurse.
• Interest on amounts that become overdue on or after Sept.1, 2010 with respect to old accidents will accrue at the New SABS rate of 1% per month and be compounded monthly.
But in calculating benefit entitlements, Old SABS will apply to old accidents in the following scenarios (to name a few):
• Income replacement benefits will continue to be calculated at 80% of net income.
• Coverage limits (e.g., $100,000 for medical/rehabilitation benefits) will continue to be governed by the Old SABS.
• Entitlement to caregiver, housekeeping and home maintenance benefits will continue to be governed by the Old SABS.
• Attendant care benefits will continue to be based on the hourly rates that are in effect on the date of the accident.
• The "minor injury" definition, Minor Injury Guideline and $3,500 medical and rehabilitation limit referred to in the New SABS will not apply to old accidents.
• For the purposes of old accidents, references to the Minor Injury Guideline in the New SABS will be deemed to be references to the Pre-approved Framework Guidelines under the Old SABS.
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