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Tort Reform For The Better: Adding Liquidity to Dry Judgements

Written by admin on . Posted in ICBC Brain Injury Cases, Tort Reform, Uncategorized. 61 Comments on Tort Reform For The Better: Adding Liquidity to Dry Judgements


Below is a brief article which was first published yesterday at Slaw.ca, one of Canada’s best read and most recognized legal blogs.  For your convenience I republish the article here in its entirety.  If you find this topic of interest I suggest you visit the original article and weigh in on the comments that follow.
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I’ve written many times that the phrase tort ‘reform‘ is often used in association with efforts to strip the rights of injury claimants.  Reform, however, is a neutral concept in and of itself.  Reform simply means change and the change could be for better or worse.  With this in mind  I’d like to share a tort reform idea for the better which recently crossed my mind.  In short the idea is to add a pool of liquidity to rectify the injustice of dry judgement.
The thought crossed my mind as I was reading reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.  In this week’s case (Saether v. Irvine) the Plaintiff was injured when the Defendant battered him.  The consequences were “profound and catastrophic” causing a brain injury that “severely compromised (the plaintiff) in virtually all facets of his life“.  Damages of $1,075,000 were assessed to cover the Plaintiff’s anticipated future care costs alone.  Given the fact that this case involves an intentional tort it is a safe bet that this judgement will be uninsured and likely (at least partially) dry.
Reading this reminded me of a 2005 case (Chow v. Hiscock) where the Court expressly recognized the injustice of dry judgement facing a plaintiff left “in a permanent semi-vegatative state” following a “brutal, unprovoked assault“.  The Plaintiff’s future care costs were anticipated to exceed $4,000,000.  Madam Justice Koensberg made the following comments hoping the Plaintiff would some day be able to receive some of these funds from the uninsured defendants:
[40]           Can I say that this is still a case where punitive damages should be awarded?  If I were to award punitive damages, it would be purely symbolic.  I have heard nothing which indicates that the magnitude of this award or even some small part of it is likely to be payable by any of these three young men.  One can hope that they find a straight path to earn a significant amount of money or that one even wins the lottery, so that the earnings could be available to increase Mr. Johnson’s quality of life.
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgments.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.

Talking BC Insurance Rates; Let's Be Intellectually Honest

Written by admin on . Posted in Tort Reform, Uncategorized. 47 Comments on Talking BC Insurance Rates; Let's Be Intellectually Honest


On October 28, 2011, Coquitlam Now published an article by Neil Mohinrda, the director of the Centre for Financial Policy Studies at the Fraser Institute.  The article was titled “Maintaining ICBC a disservice to BC drivers“.
In short Mr. Mohinrda discussed the perceived virtues of private insurance while criticizing the perceived short-comings of public insurance.  While I’m never opposed to a private/public auto insurance debate, or to scrutiny of auto insurance premiums, what the one-sided article is sorely missing is a discussion of what people get for their money in different Canadian Jurisdictions.
I’ve addressed this topic before.  A meaningful discussion of insurance rates simply can’t be had without looking at the product.  Furthermore the private insurance industry is quick to call for the stripping of victim rights in order to have a functioning system.  BC’s experience demonstrates this is far from necessary.
I was glad to see that Mr. Mohindra’s article was quickly called out for its short-comings.  You can click here to read the criticism raised by Kellee Irwin, ICBC’s Vice President of Personal Insurance who correctly points out that
Mr. Mohindra’s column mentions Alberta on a couple of occasions. While you may be able to get a cheaper insurance premium there, they fail to point out that our customers’ medical and rehab benefits are three times more than those offered in Alberta, New Brunswick and Ontario. In comparison to our $150,000 in medical and rehab coverage in B.C., those three provinces offer $50,000 while Nova Scotia provides $25,000.
If we’re making comparisons between provinces, which we agree is difficult to do, it should also be noted that drivers in Alberta, New Brunswick and Nova Scotia are limited in what payments they can receive. Those provinces have systems that are variously based on caps or deductibles on pain and suffering awards. This is not the case in B.C., where drivers are entitled to take the at-fault party to court for damages
For more analysis you can click here for a good overview from a BC lawyer who previously practiced in a private insurance jurisdiction and shares some observations of the private insurance industry.

Nova Scotia Looking to Undo the Damage of Tort "Reform"

Written by admin on . Posted in Tort Reform, Uncategorized.


Nova Scotia appears to be taking a step in the right direction to undo the harm caused by previously implemented tort ‘reform’ measures.
By way of background, Nova Scotia stripped the right of people injured in their Province to be properly compensated for soft tissue injuries caused by motor vehicle collisions.  The Province placed an artificial “minor injury cap” on these types of claims.  The cap was ultimately upheld as constitutional.
Just because something can be done, however, does not mean it should be.  After years of reduced compensation rights to the benefit of insurance company profits Nova Scotia realized that stripping accident injury victims of their rights was a poor move.
With this background in mind I was pleased to read a headline that Nova Scotia may be preparing to (at least partially) bring back tort rights for soft tissue injuries.  Canadian Underwriter reported the following on October 24, 2011:
An optional tort product appears likely to be offered in Nova Scotia in the future, according to Ken Meyers, former chair of the Insurance Brokers Association of Nova Scotia (IBANS).
“It appears clear now that there will be an optional tort product introduced,” he said at the 91st Annual Convention of the Insurance Brokers Association of Ontario (IBAO) in Toronto on Oct. 19.
The proposal for an optional tort product is contained in The Final Report Addressing: The Nova Scotia Automobile Insurance Review, published in May 2011.
By purchasing this option, an insured would not be subject to the $7,500 cap currently in place in Nova Scotia for soft tissue injuries.
“In the automobile insurance reforms of 2003 undertaken in Nova Scotia, some stakeholders felt that removal of the right to sue for pain and suffering had the impact of unfairly limiting their options and choice,” the report says in its analysis of the issue.
“Enabling consumers to purchase a full tort option would serve to restore that choice factor, the importance of which is a strongly held view of some consumers.
The article then goes further and states that “Recognizing that this ‘choice’ will inevitably carry a higher premium, it will be important that the product is priced so that there is no likelihood that it will be cross-subsidized by the non-tort product“.
This is where my positive reaction ends.  It is not necessary and wrong to require an individual to pay in order to access their tort rights.   As previously discussed, stripping injury victim rights is not necessary to have a profitable auto insurance system.  Suggestions to the contrary should be closely scrutinized by the press and public alike.  For the time being, however, I commend Nova Scotia for this small step in the right direction.

Wrongful Death Law Reform Public Awareness Events This Weekend

Written by admin on . Posted in Tort Reform.


On Sunday, September 25, 2011 two public awareness events will be held to bring attention to the need for wrongful death law reform in British Columbia.
The Events are scheduled at 2:00 pm in Vancouver at the backsteps of the Vancouver Art Gallery and at the same time at 1850 Shannon Lake Road in West Kelowna.  You can click here for more details.
I’ve written about the need for wrongful death law reform before.  If you are in Kelowna or Vancouver this weekend and would like to learn about the shortcomings of BC’s wrongful death laws and steps that can be taken to positively change this area of the law I encourage you to attend these important public awareness events.

Why Tort "Reform" Is Not Needed To Keep Frivolous Lawsuits Out of Court

Written by admin on . Posted in Tort Reform.

Every so often a sensational case makes headlines that gets dismissed after trial. Pundits and the press pick up on these stories.  Such cases can receive disproportionate media attention and are sighted as key examples for the need to have tort “reform“.  The other catchphrase that’s thrown around is “lawsuit abuse”.
“Reform“, however, is not necessary.  The BC Supreme Court already has tools built in to discourage litigation.  We have a “loser pays” system which exposes losing litigants to significant costs consequences.  Additionally, if a litigant continues to pursue actions without merit they can be locked out of the Court process entirely.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this tool in action.
In this week’s case (Keremelevski v. ICBC) the Plaintiff brought an application which the Court described as having “no sensible basis in law or fact” and had “absolutely no chance of success“.  The Plaintiff’s application was dismissed but the Court noted that “The current proceedings, wholly devoid of merit and lacking any possibility of success, are simply another chapter in a long series of proceedings launched by the applicant in this Court”
The Court went on to make a so-called vexatious litigant order and in doing so provided the following reasons:
[12] Mr. Keremelevski has clearly demonstrated that he has no real comprehension of the court process and he persistently files applications in this Court that are completely unmeritorious. As Mr. Justice Frankel observed in the above excerpt from the Houweling case, judicial resources are not infinite, and the filing of what could justly be described as a blizzard of applications does take up valuable court time that ought to be used to hear other matters that have substance. As Frankel J.A. also observed, while persons are entitled to have their day in court, they are not entitled to be always in court “day after day in the futile pursuit of remedies to which [they are] not entitled”. As I observed, Mr. Keremelevski has initiated a significant number of proceedings in this Court that have had no possibility of success. He has also sought unsuccessfully leave to appeal to the Supreme Court of Canada in some of the proceedings. As is the case with the instant proceedings, it appears these matters have been devoid of merit with no possibility of success. In these circumstances, it seems apparent to me that it is now requisite for this Court to take action to prevent the misuse of its process. It is time, and indeed probably past time, to make an order in the case of Mr. Keremelevski in the terms made in the earlier cases referred to that Mr. Keremelevski will be precluded from filing any further documents in this Court without leave first obtained from a justice of the Court in chambers. As I observed in the Booty case, such an order is requisite to prevent misuse of the litigation process.

Negligent Medico-Legal Opinion? Dr. Ford Says Experts Should be Sued

Written by admin on . Posted in Tort Reform, Uncategorized. 68 Comments on Negligent Medico-Legal Opinion? Dr. Ford Says Experts Should be Sued


Earlier this year I wrote about the UK Supreme Court decision stripping expert witnesses from immunity from lawsuits when they provide careless opinion evidence.
Some of my comments on this topic were picked up by the Law Times News where I exchanged my views that Canada should follow the UK’s example.  These views must have the medical community up in arms, right?  Surprisingly the answer appears to be no.
A follow up article published in the Law Times was recently brought to my attention where Dr. Michael Ford weighed in on the debate.  Interestingly he agreed that these lawsuits should be allowed arguing that they would bring an important element of accountability to the medico-legal process.  Specifically he stated as follows:
I like Britain’s approach because everyone, including expert witnesses, should be responsible for their actions.
That may seem simplistic, but if Canada adopted this approach, I would have no problem. It’s only fair. For example, if I assault someone on the street, I should pay the price.


By the same token, if I make an error or I provide care that’s below standard, I should be held responsible and I am. I don’t see why that responsibility should disappear because I’m now acting as an expert on the witness stand in court.
You can click here to read Dr. Ford’s full article.  As always, I welcome comments from any other doctors and lawyers (or anyone interested in this topic).  Feel free to weigh in on the debate.

Questionable Insurance Practices – Another Form of Insurance Fraud?

Written by admin on . Posted in Tort Reform, Uncategorized. 48 Comments on Questionable Insurance Practices – Another Form of Insurance Fraud?


Alan Shanoff of the Toronto Sun recently authored an interesting piece questioning whether insurance company practices could be viewed as insurance fraud.
When insurers catch customers defrauding the system the stories tend to make headlines.  That is a good thing.  Fraud should be weeded out and publicly condemned.  Alan suggests that these stories, however, may not be the only form of insurance fraud.  If insurers use practices that result in their customers being wrongfully deprived of their insured benefits can that constitute insurance fraud?  Should the media pay equal attention to stories of insurers short changing their customers?
As previously discussed, insurance fraud from either side of the fence deserves rebuke.   When claimants are unlawfully deprived of their insurance benefits they don’t have the deep-pockets that insurers have access to in order to find a legal remedy.  Alan makes some interesting observations in his article and I encourage anyone interested in the insurance fraud debate to review Alan’s article.

BC's Auto Insurance System: Not "Perfect" But Better than Most

Written by admin on . Posted in Tort Reform, Uncategorized.

In response to criticism of BC’s auto insurance rates ICBC’s CEO Jon Schubert recently commented that while BC’s auto insurance system is not“perfect” it works due to it’s robust compensation rights.   Jon provided the following comments:
You can travel across Canada and find a range of public and private auto insurance and diverse arguments both for and against each system. We believe our system in British Columbia works for a number of reasons. We know some provinces offer lower-priced auto insurance but we also know some others offer higher-priced auto insurance — including some with private insurance. Any discussion on insurance should be based not just on what you pay but what you get for your money. Our medical and rehab benefits, for example, are three times more than those offered in Alberta….
This is one instance where I agree with ICBC.  While I won’t get into the debate about whether a system of private auto insurance is better than public insurance, one thing BC has done right is keeping a full tort system in place.
While other Provinces have stripped the rights of those injured to the benefit of insurance company profits, British Columbia has continued to preserve the right of victims to seek full lawful compensation when injured through the fault of other’s carelessness.
It is artificial to compare BC rates to those of other Provinces without looking behind the rates to the rights of auto-collision victims to seek compensation.   As an example, if a person suffers severe soft tissue injuries in BC due to another person’s careless driving they can seek meaningful damages for pain and suffering and loss of enjoyment of life.
The same injuries have been artificially capped in Provinces such as Alberta and Nova Scotia.  Ontario has also limited collision victim compensation rights and in a double blow are looking to reduce access to no-fault benefits.  Other Provinces like Manitoba and Saskatchewan have gone so far as to strip collision victims of the right to to sue for damages and instead instituted a WCB-like no-fault system.
Low rates are a good thing and provided the Government does not continue to raid ICBC’s revenues there is no reason why British Columbians could not continue to enjoy competitive rates and meaningful compensation rights when injured through the fault of others.

What Do ICBC's 2010 Annual Report and Hot Coffee Have in Common?

Written by admin on . Posted in Tort Reform, Uncategorized. 55 Comments on What Do ICBC's 2010 Annual Report and Hot Coffee Have in Common?


ICBC’s 2010 Annual Report was recently released to little media attention.   Perhaps little attention accompanied the release because there were few exciting facts in the report.  At $361 million of Net Income last year alone ICBC continues to be very financially sound and stable.
This stability, however, is newsworthy on its own.  British Columbia has Canada’s fullest tort system for motor vehicle collision victims.  That means if you are injured through the fault of another you will have access to more meaningful compensation here than anywhere else in Canada.  The important underlying story here is that victim rights don’t need to be stripped (as other Provinces have done or proposed) to have a viable auto insurance system.
This story dovetails nicely into another newsworthy matter.  HBO’s much anticipated documentary Hot Coffee has now aired.  This movie documents, amongst other things, the infamous story of the 1990’s American lawsuit against McDonald’s after a patron burned herself with their coffee.  This is a classic example of frivolous lawsuits run a muck, right?  Watch the movie and decide for yourself.  You can click here to listen to my take on the Hot Coffee case as discussed with Charles Adler last year.
If you don’t have time to watch the documentary I’ll summarize one of the important points made.  Stories of a broken system and frivolous claims are often bandied about by the insurance industry.  These generate a lot more headlines than stories of financial insurance company stability.
The insurance industry often uses the momentum of these stories to argue that “reform” is necessary because the system is failing due to abuse.  As Hot Coffee illustrates, it is important to step back and scrutinize any claims that victim rights need to be stripped in order to have a functioning insurance system.  This usually is not the case.  When tort reformers ask for proof, point proudly to British Columbia’s full tort system and ICBC’s 2010 Annual Report.

What Do Psychiatrists, Wizards and the American Southwest Have in Common?

Written by admin on . Posted in Tort Reform, Uncategorized.

 
OK, this post is a little off-topic but when I came across this bit of legal folklore I had to dig deeper and find out if it was true.
Recently a regular reader of this blog shared a publication with me which stated that in the 1990’s a New Mexico politician became so fed up with psychiatric expert witnesses he proposed an amendment to a State Bill which would have required psychologists and psychiatrists to dress like wizards when giving expert evidence.   The Proposed law stated as follows:
When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong
A quick internet search fails to reveal any authoritative source verifying this story.  Nor could I find corroboration searching New Mexico’s Legislature’s website.
Having lived in The Land of Enchantment for close to a decade I thought I’d go the extra mile and see if I could verify this story myself.  This morning I went straight to the source and asked  former New Mexico State Senator Duncan Scott whether this bit of legal folklore was fact or fiction.  Mr. Scott, who is now in private practice in Albuquerque, NM, was kind enough to take my phone call.
Turns out the story is true.  Mr. Scott tells me that he tacked this amendment onto a Bill in 1995 and, despite its clearly satirical nature, it passed with a unanimous Senate vote.   The amendment was then removed from the Bill prior to receiving House approval so it never did become law.