Singer, Kwinter

No Crash No Cash: An unfair trade-off for transit riders

As of May 10, 2011 the rules changed for riders injured on transit buses and streetcars where there is no collision. Previously, riders were able to make claims for Accident Benefits from their own insurer or the transit authority’s insurer.  These no fault benefits included medical/rehabilitation, income replacement, housekeeping, and attendant care. Additionally, riders could sue any at-fault parties including the transit authority for any third party losses such as pain and suffering and additional income losses.  The third party claim was subject to the threshold and deductible just like most other car accident claims in Ontario.

Bill 173 as part of the Better Tomorrow of Ontario Act changed this.  Now if there is no collision, riders cannot claim accident benefits.  It does not matter if you have your own automobile insurance or how seriously you are injured.

In exchange, riders are still able to sue the at-fault parties including the transit authority but they are no longer subject to the threshold or deductible. In other words, the transit authority and its driver are no longer “protected defendants”. However, the other vehicle that may have caused the “almost collision” would still get these protections.

The changes are the result of lobbying efforts by various municipalities and transit authorities, claiming increases in the costs of claims and difficulty in investigating these types of accidents.

These changes are a mixed bag for accident victims. On the surface they eliminate the need to claim for accident benefits which have been significantly limited by recent government amendments and increasing denial rates on treatment plans. They allow the victim to make a pure tort claim without a $30,000 deductible or requirement that they have a serious and permanent injury.

However, a variety of issues may arise for this sub-group of victims. The at-fault party may be a pedestrian or cyclist who may be unidentified or have no insurance. The at-fault party may be a second motorist who does have the protection of the threshold and deductible. Further, the victim will have to fund any treatment and is without any compensation from the defendants until settlement or judgment. This can pose further barriers for many victims whose condition may worsen without much needed therapies.

Going forward it will be interesting to see if future government amendments to the auto insurance regime increase tort rights to injured victims while eroding their accident benefits.

By Jason Singer

The content of this article or blog posting are of general nature and do not constitute legal advice, and are not intended to be a full and complete analysis of the topic. Before applying the concepts or any content of this article or blog it is imperative that you consult your legal advisor. The author of this article nor Singer, Kwinter cannot accept any responsibility for financial or loss or gain of any other nature should the reader not take advice from their legal advisor.

Why the Insurance Company Wins by Simply Denying a Claim

Do you know that by simply denying a claim the insurance company usually wins? Why you may ask? The reason is that when the insurance company denies a claim the policyholder has only one of 3 choices.

1. The policyholder simply walks away figuring they can’t take on a financial giant like an insurance company.

2. The policyholder can accept whatever amount the insurance company decides it wants to pay just to get rid of the claim. “Oh well, it’s better than nothing.”

3. The policyholder can fight. But how many people have the resources, stamina, energy and years to fight an insurance giant?

When I address a jury in a claim against an insurance company I open with this statement. I tell the jurors that my client has chosen the 3rd option because the actions of the insurance company are wrong.

At Singer, Kwinter we represent those who may not be in a position to take on an insurance company. We have done so on many occasions and I am pleased to say we have had numerous successes which no doubt has led to our firm being named as one of the top 5 personal injury firms in the country by Canadian Lawyer magazine.

We do not allow our clients to walk away and we do not allow our clients to take whatever amount the insurance company decides to put on the table hoping to close their file. We will fight for our clients because we are known as a firm that has taken so many cases to trial, we now find that in most cases our clients receive fair offers which avoid the need for a trial. In fact at Singer, Kwinter we settle over 95% of our claims because insurance companies know that only a fair offer will be accepted.

Please see the cases listed on our website (Rodrigues v Allstate, Oldfield v Transamerica, Plester v Wawanesa, Pereira v Hamilton Township Farmers Mutual, Leonard v Manulife, Kamin v. Kawartha Dairy) where our clients have not walked away, have not accepted the low-ball offer, but allowed us to fight for them and win.

By Alfred M. Kwinter

The Nullification Doctrine—Update

      In Cabell v. The Personal Insurance Company, 2011 ONCA 105 (“Cabell”), which can be read at this location http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0105.htm, the Ontario Court Appeal applied the nullification doctrine to find coverage for the Plaintiffs under their homeowner’s insurance policy for damage to their in-ground swimming pool. 

      In Cabell, the Plaintiffs purchased an endorsement to their homeowners’ insurance policy to obtain coverage for damage to their pool which was not available in the policy.  After making a claim to their insurer for damage to their pool, the insurer denied the claim on the basis that despite the endorsement a common exclusion in the policy applied to deny coverage. 

     After a Judge dismissed the Plaintiffs’ application for a declaration of coverage, they appealed to the Ontario Court of Appeal.  The Court of Appeal found that despite being an offshoot of the principle that ambiguities in the policy are interpreted against the insurer, the nullification doctrine was a stand-alone principle that voids an exclusion clause, even without ambiguity, when the exclusion clause would nullify coverage for the obvious risks that a policy is issued for. 

       The Court of Appeal concluded that application of the common exclusion in Cabell would nullify obvious risk that the endorsement was obtained to cover, in this case damage to the swimming pool.  As a result, the Court voided the exclusion clause and declared coverage under the policy for damage to the swimming pool. 

        Cabell is a significant case because the Court of Appeal addressed the evidentiary burden required for application of the nullification doctrine.  The Court found that Courts are able to determine whether an exclusion clause would nullify coverage without evidence.  The Court advised that once a Court determines on an objective basis that an insurer’s interpretation of the policy would negate coverage for the most obvious risks, the tactical burden shifts to the insurer, and the insurer is then required to lead evidence showing that its interpretation of the policy would not negate coverage. 

Shane H. Katz, B.A., J.D.

SINGER, KWINTER

Personal Injury Lawyers since 1974

The Polo Centre

1033 Bay Street, Suite 214

Toronto, Ontario

M5S 3A5

T:416-961-2882

F:416-961-6760

Email: skatz@singerkwinter.com

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