ISAACS & CO. Marc Isaacs Arie Odinocki

Transcription

1 ISAACS & CO. Marc Isaacs Arie Odinocki

2 Accident Benefit Issues Priority Disputes Loss Transfer

3 Priority Disputes

4 Purpose of the Accident Benefits Scheme To ensure that anyone involved in a motor vehicle accident can receive benefits, including: occupant of a vehicle involved in an accident non occupant (pedestrian or cyclist)

5 Priority of Benefits A claimant can be insured under more than one policy of insurance. A priority dispute may arise between insurers as to which company should administer and pay Accident Benefits.

6 Example: John owns a car and insures it with ABC Insurance. Mary owns a car and insures it with XYZ Insurance. John is a passenger in Mary s car which is involved in an accident. John is injured and applies for Accident Benefits. Which insurer is ulomately responsible to pay? The answer is determined by examining the priority rules.

7 DefiniOons A person can be: a named insured, or an insured, or a deemed named insured.

8 Named Insured A person is specifically named in an automobile policy of insurance. He or she is the holder of the policy.

9 Insured Insurance Act A person insured by a contract, whether named or not, and includes every person who is enotled to receive Statutory Accident Benefits under the contract whether or not that person is described in the contract as an insured person.

10 Insured Person Accident Benefits Schedule The named insured Any person specified in the policy as a driver of the insured automobile The spouse of the named insured Any dependant of the named insured or spouse For accidents in Ontario, a person who is involved in an accident involving the insured automobile For accidents outside Ontario, a person who is an occupant of an insured vehicle and a resident of Ontario or was a resident during the 60 days before the accident.

11 Deemed Named Insured A person is a deemed named insured under a policy of automobile insurance if: the insured automobile is being made available for the individual s regular use by a business; or the insured automobile is being rented by the individual for a period of more than 30 days (this applies only if the person is ordinarily a resident of Ontario).

12 Made available This concept is significant in cases of independent owner operator arrangements vs. fleet vehicles (i.e. trucking firms) While the vehicle may appear to be owned by a large trucking company, the driver s company is the actual owner of the vehicle which he makes available to the trucking company. The trucking company does not make the vehicle available to the driver and his company. In this case, the driver would not be a deemed named insured.

13 Regular use The individual regularly uses a described automobile in a normal, habitual and long standing manner and in a predictable Ome and manner. The individual does not need to have a personal use component. Common indicia that will be considered: DuraOon and pa^ern of use. Exclusivity of use. Whether the individual requires permission to use the vehicle on each occasion. Whether the individual is permi^ed to take the vehicle home.

14 More definioons Spouse two persons who are married to each other; have lived in a common law relaoonship for not less than 3 years; are in a relaoonship of some permanence if they are natural or adopove parents of a child.

15 DefiniOons Dependant For the purpose of the SABS, a person is a dependant of another person if the person is principally dependent for financial support or care on the other person or on the other person s spouse.

16 DefiniOons Occupant the driver a passenger in or on a vehicle a person gebng into or out of a vehicle

17 First to Receive Must Pay The first insurer to receive a completed applicaoon for accident benefits is obligated to pay statutory accident benefits to the insured unol there is an order relieving it of its obligaoon to pay benefits. This is to ensure that the claimant is paid benefits promptly and is not lec waiong for the insurers to decide which insurer is to respond.

18 Sufficient nexus There must be a sufficient nexus between the claimant and the insurer to create a duty to respond to a claim for Accident Benefits. Where an insurance company licensed to write business in Ontario receives a completed applicaoon form under a parocular policy which the claimant states was in force at the Ome of the accident, the insurer must respond.

19 Sufficient nexus A court held that even though a policy of insurance had lapsed 4 months prior to the accident, there was a sufficient nexus between the claimant and the company to provide for immediate payment of benefits. This insurer may not ulomately be liable under the priority dispute rules, but was required to pay interim benefits unol this dispute is resolved.

20 Sufficient nexus If the insurer does not comply with its obligaoons to pay benefits under this regulaoon, it risks exposing itself to a bad faith claim.

21 Priority Rules SecOon 268(2) of the Insurance Act sets out the priority rules to be applied to determine which insurer is liable to pay Statutory Accident Benefits.

22 Priority Rules For occupants of a motor vehicle involved in an accident: 1. The occupant of a motor vehicle has recourse against the insurer of an automobile in respect of which the occupant is an insured.

23 Priority Rules 2. If recovery is unavailable under (1), the occupant has recourse against the insurer of the automobile in which she was an occupant.

24 Priority Rules 3. If recovery is unavailable under (1) or (2), the occupant has recourse against the insurer of any automobile involved in the accident from which the enotlement to Statutory Accident Benefits arose. For example, if the individual is occupant in an uninsured vehicle, she can claim against a third party vehicle.

25 Priority Rules 4. If recovery is unavailable under (1), (2), or (3), the occupant may recover from the Motor Vehicle Accident Claims Fund. The Court of Appeal has ruled that the fund is an insurer.

26 Priority Rules The same set of rules applies to persons other than occupants of a vehicle involved in a motor vehicle accident (pedestrians, bicyclists), except that for subsecoon (2), the non occupant may claim against the insurer of the car which hit him (rather than the insurer of the car in which he was an occupant).

27 Which Insurer Responds? If a person has recourse against more than one insurer for the payment of SABS under subsecoons (1 insured) and (3 any other vehicle), that person in his or her absolute discreoon may decide the insurer from which he or she can claim benefits.

28 Which Insurer Responds? However, if a person is a named insured under a motor vehicle policy or the person is the spouse or a dependant of the named insured, that person shall claim accident benefits against the insurer under that policy. If more than one insurer fits this category (individual has more than one insurance policy on different cars or a motorcycle), that person may decide, in her discreoon, the insurer from which she will claim benefits. However, if the person at the Ome of the accident was an occupant of an automobile in respect of which she is the named insured (or spouse or dependant of the named insured), the person shall claim benefits against the insurer of the vehicle in which she was the occupant.

29 Which Insurer Responds? This is where the issue of deemed named insured commonly arises.

30 How Does an Insurer Dispute Priority? If the first insurer believes that another insurer is higher in priority to pay benefits under the rules, the first insurer must put the other insurer on nooce of the priority dispute.

31 How Does an Insurer Dispute Priority? The insurer must also noofy the insured of the priority dispute. An insured has 14 days thereacer to object to the transfer of the claim. If the insured objects, he or she is enotled to parocipate in the priority dispute arbitraoon as a party. If the insured chooses not to parocipate, then he or she is no longer enotled to nooce of any further steps in the proceeding and will be bound by the arbitrator s decision.

32 Time Limit to Provide NoOce of Dispute No insurer may dispute its obligaoon to pay Accident Benefits unless it gives wri^en nooce within 90 days of receipt of a completed ApplicaOon for Accident Benefits to every insurer who it claims is required to pay.

33 The first insurer need not determine with certainty that another insurer is liable before pubng the second insurer on nooce. If the first insurer has determined that another insurer may have priority, it must give nooce.

34 Duty to invesogate promptly Unless nooce is given within 90 days, the first insurer is obliged to cononue to adjust and pay the accident benefits claim. The 90 day period may be extended if: 90 days was insufficient to determine if another insurer has priority; and the insurer made reasonable invesogaoons to determine if another insurer was liable within the 90 day period. An insurer must saosfy both of these requirements in order to extend the 90 day nooce period (Axa v. Co operators, May 1, 2000 Arbitrator Jay Rudolph).

35 An insurer will not be held to a standard of perfecoon in invesogaong whether another insurer has priority, but insurers will be held to a high standard and are expected to conduct a thorough invesogaoon (Federated Insurance of Canada v. CGU, September 2, 2003 Arbitrator Stephen Malach).

36 However, it is unlikely that a deadline will be extended. Courts have held that insurers are sophisocated enooes and there is need for consistency in the rules. Insurers are enotled to rely upon the precise requirements of the AB scheme.

37 Where the first insurer believes that it is the wrong insurer and that the insured person is not enotled to benefits, it must respond to the claim on two separate fronts: by issuing the nooce to the insurer it believes responsible under s. 268, and by following the procedures for denying a claim through the normal dispute resoluoon mechanism at the Commission.

38 Duty to InvesOgate Thoroughly Insurers should verify all informaoon given to them by claimants and their family members. When assisong the claimant to complete the ApplicaOon for Accident Benefits, great care should taken to ensure that it is completed accurately.

39 Duty to InvesOgate Thoroughly Insurers should verify all informaoon given to them by claimants and their family members. When assisong the claimant to complete the ApplicaOon for Accident Benefits, great care should taken to ensure that it is completed accurately.

40 PotenOal problem areas Is the claimant a spouse (may be a named insured under another policy). Is the claimant a dependant (get employment informaoon, receipt of benefits from other sources, informaoon on relaoonships between persons in the household). Is the claimant a dependant of someone who has a spouse? Was the claimant driving his employer s car? Is the claimant in their teens or early 20 s (dependency quesoons, parocularly relaong to place of residence). Was the claimant in a rental vehicle? Was the claimant on public transit? Was the claimant a pedestrian? Is there any missing informaoon on the ApplicaOon for Accident Benefits?

41 Steps to Commence a Priority Dispute ArbitraOon If insurers are unable to resolve the priority dispute, the first insurer must inioate the arbitraoon within one year of the date that the first benefit payment was made. If not commenced within one year, the first insurer must cononue to adjust and pay the claim.

42 Steps to Commence a Priority Dispute ArbitraOon Disputes between insurers are to be resolved through private arbitraoon and not at FSCO. The arbitrator is agreed to by the insurers. Usually it is a senior lawyer familiar with the Accident Benefits scheme or a reored judge.

43 Steps to Commence a Priority Dispute ArbitraOon An arbitraoon is commenced by serving a nooce to the other insurer demanding that the dispute be resolved in accordance with RegulaBon 283/95 and requesong that the other insurer parocipate in the appointment of an Arbitrator. AlternaOvely, counsel may apply to the court for the appointment of an arbitrator.

44 Steps to Commence a Priority Dispute ArbitraOon If an insured person has given nooce that he or she objects to the transfer of the claim, the insured person, or his or her representaove, may take part in the arbitraoon of the dispute.

45 Items Recoverable in a Priority Dispute Priority determinaoon involves an actual shic in the administraoon and payment of the benefits from one insurer to the other. RegulaBon 283/95 is silent as to the recovery of these expenses.

46 Items Recoverable in a Priority Dispute There are conflicong decisions with respect to the ability of the insurer to recover expenses for handling and processing the claim. In Certas v. Allstate (November 10, 2004 Arbitrator Stephen Malach) the Arbitrator held that expenses for handling of the claim including office administraoon, disbursements, invesogaoon, surveillance, insurer examinaoons, adjusong expenses etc. are not recoverable.

47 Items Recoverable in a Priority Dispute However, in Wawanesa v. Kingsway (April 2005 Arbitrator Guy Jones) the Arbitrator held that expenses such as IMEs, DACs and surveillance should be reimbursed because otherwise, there would be a disincenove for the adjusong firm to spend money properly adjusong the file if they were not going to be reimbursed for these costs and there would be a disincenove for the proper insurer to take over the case before such expenses had been incurred.

48 Example John owns a car and insures it with ABC Insurance. Mary owns a car and insures it with XYZ Insurance. John is a passenger in Mary s car which is involved in an accident. John is injured and applies for Accident Benefits. Which insurer is ulomately responsible to pay?

49 LOSS TRANSFER

50 Basics of Loss Transfer What is Loss Transfer? Introduced in Allows insurers to recover AB payments from the insurers of at fault vehicles. ExcepOon to the no fault rule of ABs. The purpose is to transfer ABs to higher risk vehicles. There are two specific scenarios where it applies:

51 Scenario #1 Basics of Loss Transfer The insurer of a motorcycle or a motorized snow vehicle is enotled to Loss Transfer from the insurer of another vehicle that is partly or fully at fault and is not a motorcycle, motorized snow vehicle or an off road vehicle. Can apply even if the motorcycle/motorized snow vehicle is not involved (depending on the vehicles insured under the policy).

52 Basics of Loss Transfer Scenario #2 The insurer of an automobile that is not a heavy commercial vehicle is enotled to Loss Transfer from the insurer of a heavy commercial vehicle that is partly or fully at fault. Must fit the definioon of a heavy commercial vehicle.

53 Basics of Loss Transfer Other important points SomeOmes referred to as a Request for IndemnificaOon. Meaning of first party insurer and second party insurer. Based on the insurance policy from which ABs are being paid.

54 Basics of Loss Transfer Amount of IndemnificaOon Depends on degree of fault. Fault DeterminaOon Rules set out predetermined degrees of fault for different types of accidents. Weather, road condioons and other factors not relevant (usually)

55 Relevant LegislaOon S.275 of the Insurance Act The insurer paying ABs can claim re imbursement from the insurer of an at fault vehicle (when certain types of vehicles involved). RegulaOon 664 to the Insurance Act Sets out the types of vehicles that have to be involved.

56 Relevant LegislaOon RegulaOon 668 to the Insurance Act These are the Fault DeterminaOon Rules. Set out various accident scenarios and list the degrees of fault. No reference to circumstances (weather condioons, road condioons, etc.). If more than one rule applies, the rule that a^ributes the least degree of fault to the insured is to be used. If accident not described in the rules, refer to ordinary rules of law. If first party insured driver is charged, refer to ordinary rules of law. Various accident scenarios are described with diagrams.

57 DeducOble There is a $2,000 deducoble for Loss Transfer.

58 What Can and Cannot be Claimed What can be claimed All AB payments made. Interest on payments. Cost of ArbitraOons. DAC assessments (Liberty Mutual v. Zurich, August 2005 Arbitrator Guy Jones). What cannot be claimed Interest on overdue AB payments. Special awards and puniove damages. Claims related expenses (administraove costs etc.) (Allstate v. AXA, May 7, 1999 Arbitrator Bruce Robinson). Medical examinaoons (State Farm v. ING, February 16, 2005 Arbitrator Craig Brown).

59 Payment Issues Payments from the second party insurer to the first party insurer to be made on an ongoing basis (when invoiced by the first party insurer). Second party insurer not enotled to withhold payment to first party insurer unol claim closed. The first party insurer does not transfer the claim handling to the second party insurer.

60 Does Loss Transfer apply to Non Ontario Accidents? If both the first party and second party insurance policies issued in Ontario, loss transfer applies (Royal v. Wawanesa, Ontario Superior Court of JusOce, December 21, 2006). If the second party insurer does not conduct business in Ontario, loss transfer does not apply (Unifund Assurance Co. v. Insurance Corp. of BriBsh Columbia, Supreme Court of Canada, July 17, 2003).

61 EXTRA PROVINCIAL LOSS TRANSFER An ocen overlooked source of loss transfer is with respect to extra provincial insurers. An insurer from outside of Ontario will be required to treat its policy as an Ontario policy, with all consequent statutory accident benefits, provided that it has filed a Power of A^orney and Undertaking ( PAU ) at the Canadian Council of Insurance Regulators and/or is licensed to write automobile insurance in Ontario (PoSs v. Gluckstein (1992), 8 O.R. (3d) 556 (Ont. C.A.)).

62 EXTRA PROVINCIAL LOSS TRANSFER By signing a PAU, the foreign insurer subjects itself to the Ontario loss transfer provisions (I.C.B.C. v. Royal Insurance [1999] O.J. No (Ont. C.A.)). AddiOonally secoon of the Insurance Act states that an insurer that issues motor vehicle liability policies in another province or territory of Canada, the United States, or a jurisdicoon designated in the Schedule may file an undertaking with the Ontario Superintendent of Insurance providing that the insurer s motor vehicle liability policies will provide at least the coverage provided in the Schedule.

63 Forms NoOfy the second party insurer via the NoBficaBon of Loss Transfer form. Request indemnificaoon on ongoing basis via the Request for IndemnificaBon form. List the applicable Fault DeterminaOon Rule.

64 Second Party Insurer EnOtlement to InformaOon The second party insurer is enotled to: The NoBficaBon of Loss Transfer form and the Request for IndemnificaBon forms. A summary of ABs paid. InformaOon confirming AB payments. Basic informaoon about the claimant. Relevant medical informaoon.

65 What Happens When There is a Dispute? Dispute over the claimant s enotlement to ABs Second party insurer is not enotled to intervene in AB payments by first party insurer to the claimant. Either insurer can refer disputes to an ArbitraOon. First party insurer is presumed to be acong reasonably (Jevco Insurance v. Guardian Insurance, August 28, 2000 Arbitrator Malach. Upheld on appeal by the Ontario Superior Court of JusOce, November 20, 2000). Onus to prove AB payments were unreasonable is on the second party insurer.

66 What Happens When There is a Dispute? Disputes typically involve disagreement over the applicable Fault DeterminaOon Rule. Either insurer can refer to Private ArbitraOon. The decision of an Arbitrator can be appealed to the Superior Court of JusOce only on a quesoon of law, or as otherwise agreed by the paroes. A further appeal lies to the Court of Appeal with leave of that Court. Most loss transfer decisions are rarely appealed due to the very specific and comprehensive set of fault determinaoon rules.

67 LimitaOon Period What is the limitaoon period? Case law originally set out a 6 year limitaoon (old LimitaBons Act). Now 2 years effecove January 1, 2004 (new LimitaBons Act, 2002). The limitaoon period begins from the first payment by the first party insurer to claimant (Jevco v. Guardian, February 6, 2000 Arbitrator Stephen Malach. Affirmed on appeal to the Superior Court of JusOce, November 20, 2002). A new limitaoon period arises with each subsequent payment. (State Farm v. Dominion, Court of Appeal, December 22, 2005) The first party insurer should request loss transfer funds from the second party insurer as soon as statutory accident benefit payments are made.

68 LimitaOon Period Must commence ArbitraOon (Loss Transfer nooce is not sufficient). Generally, an ArbitraOon will be held to have commenced once the first party insurer delivers to the second party insurer either an agreement in wriong by both paroes to arbitrate, a wri^en agreement to appoint an arbitrator, an applicaoon to the Superior Court of JusOce to appoint an arbitrator, or a nooce to arbitrate.

69 LimitaOon Period Single limitaoon period or rolling limitaoon period? The latest case law = Rolling LimitaOon Period (State Farm v. Dominion, December 22, 2005 Ont.C.A.). A rolling limitaoon period means that every payment made by the first party insurer to the claimant (for which indemnificaoon can be claimed) creates the start of a new limitaoon period with respect to that payment. Previously, the Courts have held that there was a single limitaoon period, so that the first payment made by the first party insurer to the claimant started the limitaoon period with respect to the enore AB claim (i.e. any and all future AB payments).

70 Checklist Determine if there is a heavy commercial vehicle, motorcycle or motorized snow vehicle involved in the accident and assess whether Loss Transfer applies. Refer to the Fault DeterminaOon Rules. Submit a NoBficaBon of Loss Transfer form and submit ongoing Request for IndemnificaBon forms. Remember to apply the $2,000 deducoble. Keep track of the rolling 2 year limitaoon period for ArbitraOng.

71 Example Scenario Facts Vehicle A (an 18 wheeler tractor trailer) rearends Vehicle B (a passenger car) while both vehicles are moving in a forward direcoon. The driver of Vehicle B is injured and receives ABs from the insurer of his passenger car. The insurer of Vehicle B is the appropriate payor of ABs to the driver of Vehicle B.

72 Example Scenario Loss Transfer analysis Vehicle A is a heavy commercial vehicle. Vehicle B is not a heavy commercial vehicle. The Fault DeterminaOon Rules state at secoon 6(2) that where a vehicle is struck from the rear where that vehicle is stopped or travelling in a forward direcoon, the striking vehicle is 100% at fault. The insurer of Vehicle B can therefore claim Loss Transfer from the insurer of Vehicle A for 100% of AB payments made to the driver of Vehicle B (minus the $2,000 deducoble).

73 Thank you