Managing Liability Risk Financial Management Institute November

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1 Government Vehicles Managing Liability Risk Financial Management Institute November

2 Maxim No man hath endurance, as he that selleth insurance -anon 2

3 Our Organization and Role Acquisitions Branch Policy, Risk and Strategic Management Sector Acquisition Program Integrity Secretariat Risk Management Advisory Services Manage the risk assessment process for AB TB submissions and complex procurements Manage insurance tools and advise other departments and agencies on insurance management Provide advice to procurement staff on risk financing, risk assessment and limitation of liability 3

4 Today s Objectives Provide a general overview of automobile liability risk Understand the financial and legal implications of the risks Identify the measures that help build a strong risk management structure 4

5 Agenda Background Regulatory Environment Policy Environment Risk Finance Financial Exposures Legal Issues Managing the Risk Rental Car Issues Personal Considerations Q and A 5

6 Background 6

7 Injury Stats More than 2,000 people die in Canada each year as a result of motor vehicle collisions - over 170,000 are injured (2010). On the positive side, the trend is declining Over the past 20 years 3,690 fatalities in 1991 to 2,227 in 2010 Injuries are declining as well over the same period - 249,217 to 170,269 Highest risk groups for 2010: Fatalities ages 65+ (406) Injuries ages (30,734) Source: Transport Canada 7

8 Premiums and Losses In Canada, automobile insurance accounts for almost half of all private sector insurance premiums: $16.8B in 2007 Provincial government insurance regimes in QC, MB, SK and BC added another $5.6B in premiums Bodily injury claims in Ontario alone account for over $2B Non-government insurers pay over $4B in Third Party Liability claims and $2B in Accident Benefits Source: Insurance Bureau of Canada 8

9 Court Awards MacNeil v. Bryan: $18.4M Marcoccia v. Gill: $16M Gordon & Morrison v. Greig: $11.4M and $12.3M All three cases occurred in Ontario Source: CBC News 9

10 What s in an award? General Damages pain and suffering Special Damages: Damaged property Medical expenses, including cost of future care Lost income, including loss of future income, loss of opportunity Gross up for taxes Family Law Act loss of care, companionship and guidance Legal disbursements Legal fees - party-to-party and solicitor-client 10

11 Provincial Legislation Highway Traffic Acts Negligence Acts Motor Vehicle Acts Insurance Acts Workers Compensation Acts Labour Codes 11

12 Federal Legislation Department of Justice Act Financial Administration Act Government Employees Compensation Act Canada Labour Code Criminal Code of Canada 12

13 Policy Environment 13

14 Treasury Board of Canada Framework for the Management of Risk Policy on Claims and Ex Gratia Payment Policy on Legal Defence and Indemnification Motor Vehicle Operations Directive Directives on Fleet Management Travel Directive Guideline on Self-insurance 14

15 Risk Finance 15

16 Automobile Insurance The automobile insurance landscape is complex and highly regulated Automobile insurance is provincial responsibility and the insurance policies are all mandated by their respective Insurance Acts Each province has its own standard policy form specifying the coverage terms and conditions for the mandatory policy elements The policies govern the terms for: Third Party Liability Accident Benefits Uninsured Motorist coverage There are different Automobile insurance schemes, such as different forms of no fault insurance in Québec and Ontario Three other provinces, BC, SK and MB have crown corporations providing coverage 16

17 Automobile Insurance within the GOC The TB Framework for the Management of Risk permits the placement of insurance by Crown departments Automobile Liability insurance is mandatory for: Crown vehicles entering the US Crown Ministers fleet The insurance in place for both risks pertains only to third party liability The insurance premium is paid, and the policy managed by the department which purchased the insurance Other costs, such as deductibles, are the responsibility of the department 17

18 Self-Underwriting To self-underwrite is to retain and fund the risk of accidental loss Similar to self-insurance, except that a self-insured can transfer excess or catastrophic risk to an insurer The Crown self-underwrites its own risks, with some exceptions Financial losses are paid from a revolving fund and charged to the department incurring the loss Managing the risk of loss is crucial to self-underwriting schemes 18

19 Legal Issues 19

20 Priority of Payments Insurance Acts determine who pays first and when Principle applies in Accident Benefits and in some cases of third party injury In Québec, residents make compensation claims for injury directly to the SAAQ In Ontario, injured persons are required to claim for benefits against their own insurance policy Legislation in ON, AB and BC limits the liability of lessors and transfers the primary payment obligation to the driver 20

21 Protected v. Unprotected Defendant Protected defendant applies in no-fault (e.g. ON Insurance Act) cases where a a liable party cannot be sued Protected defendant can lose that status where liability can be imputed for negligence other than operation of the vehicle Cases of unsafe vehicle, defects can permit a plaintiff to sue for negligence related to product liability In such cases, the plaintiff is not restricted by no-fault legislation 21

22 Joint and Several Liability Principle in law that each and every defendant can be fully liable for a loss One party can be required to pay the full value of the loss despite being partially negligent In some cases, 1% of negligence can equal 100% liability Such cases can occur with uninsured or underinsured defendants and one deep pocket defendant 22

23 Non-Owned Liability Arises from the use of vehicles not owned by the Crown Common to rental vehicles, where the limit of insurance carried by the Lessor may be at the provincial minimum The Crown may be held liable for liability losses exceeding the insurance limit Exposure includes personal vehicles operated by government employees while on government business 23

24 Financial Exposures 24

25 Payment Obligations Catastrophic Loss: Liability for the value of the loss Statutory Accident Benefits: Liability for long term medical expenses and income replacement benefits Loss transfer: Liability for third party insurer costs for accident benefits where: Accidents involve the use of large vehicle; e.g. >5,000Kg Other liability, e.g. product liability, is imputed to the Crown Statutory Penalties: Liability for fines levied for late or non-payment of statutory benefits 25

26 Managing the Risk 26

27 Creating a Risk Profile Fleet size and composition Range and type of operations Operator training and permit requirements Maintenance requirements and service contracting Repair and service history Loss History Policies and Procedures on Vehicle Use 27

28 Loss Prevention Vehicle use restrictions Operator training, testing and abstracts Application of safe operation manuals Remedial training following infractions and accidents Circle checks before and after Preventative maintenance schedule Operator monitoring ( Black boxes, GPS) 28

29 Loss Reduction Loss reporting procedures In vehicle accident instructions and contact numbers Accident investigation Loss adjustment services Incident review 29

30 Risk Transfer Using contracts to transfer the risk of loss or requirement to insure Rental agreements can transfer the obligation of third party liability insurance subject to certain legislation If contractors use government vehicles, their own insurance policies can be endorsed to provide liability insurance coverage Loss adjustment and appraisal services can be used to reduce costs and focus resources in core areas 30

31 Risk Monitoring Policy and Procedure Oversight: Commitment and adherence by senior management Culture of Compliance: Reinforce best practices and recognize success Risk Profiles: Assigning process ownership and management responsibilities for assessing risk Loss data and reporting: Manage loss data, reporting and relationships with service providers Claim file audits: Audit claim files to ensure high performance standards 31

32 Rental Vehicles 32

33 Car Rental Issues Lessee has care, custody and control of the rental and is responsible for damage The collision damage waiver sold by rental companies is not insurance it is an agreement by the company to waive its right to claim against the lessee for damage GoC credit cards have physical damage coverage for rentals, but there are conditions based on type of vehicle, rental period, etc. Lessees in ON, AB and BC are responsible for third party loss (to varying degrees) In BC, the ICBC does not extend liability coverage to GoC employees renting in BC 33

34 Personal Considerations Automobile Liability is a common but significant risk Prudence and common sense can help avoid and prevent serious loss Low value measures can help contain high costs Lead by example Seconds can change a life! 34

35 Resources Canada Safety Council: Canadian Association of Road Safety Professionals: Insurance Bureau of Canada: Insurance Institute for Highway Safety: SMARTRISK: Transport Canada: 35

36 Q and A Questions? 36

37 Have a great day! 37

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