The Court of Appeal for Ontario has held that the failure to give statutory notice within 10 days to the municipality, arising out of a slip and fall on an icy municipal sidewalk, is not a bar to an action where the injured person waited four months to give notice because (i) he had a serious injury, (ii) he didn't know about the law requiring him to give notice and (iii) he was depressed. He did not give notice to the City until he was contacted by a lawyer four months after the slip and fall.
At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."
Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."
The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.
The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.
Sabtu, 27 Februari 2010
Rabu, 17 Februari 2010
Unprotected Defendants Entitled to Deduct Collateral Benefits under s. 267.8
Burhoe v. Mohammed (2010), 97 O.R. (3d) (391) (S.C.J.)
The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.
The court held that both unprotected and protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.
This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.
The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.
The court held that both unprotected and protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.
This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.
Rabu, 10 Februari 2010
How to Review Your Homeowners Insurance Renewal Statement
For most of us, our home is our single largest and most important investment. Many of us have poured thousands of dollars and countless hours into maintaining, improving and (hopefully) paying off our homes. Many people own their homes free of any mortgage. These assets are pure equity. Certainly its worthwhile to invest 15 minutes a year to be sure it's properly insured.
Thankfully, the insurance company offers you a perfect reminder and opportunity in sending out your annual renewal statement. Even if your insurance is paid by your mortgage company as part of your impound account, the insurance company still mails you a statement of renewal every year to update you with your current coverage limits and deductible.
Here's a few important steps you can take to be sure that HOME SWEET HOME is properly protected.
1. Check the basics. Check your name, address and any other description of the insured property. Make sure there's been no change of vesting or ownership that needs to be updated. Check your address to be sure no numbers are transposed.
2. Check the mortgagee clause. Here's where you can be sure that the current mortagee on your home is listed correctly. Check the lender, address and your loan number. Be sure there's no old information there. Maybe you had a HELOC (Home Equity Line of Credit) or a second mortgage that no longer applies. Be sure to get them removed.
Thankfully, the insurance company offers you a perfect reminder and opportunity in sending out your annual renewal statement. Even if your insurance is paid by your mortgage company as part of your impound account, the insurance company still mails you a statement of renewal every year to update you with your current coverage limits and deductible.
Here's a few important steps you can take to be sure that HOME SWEET HOME is properly protected.
1. Check the basics. Check your name, address and any other description of the insured property. Make sure there's been no change of vesting or ownership that needs to be updated. Check your address to be sure no numbers are transposed.
2. Check the mortgagee clause. Here's where you can be sure that the current mortagee on your home is listed correctly. Check the lender, address and your loan number. Be sure there's no old information there. Maybe you had a HELOC (Home Equity Line of Credit) or a second mortgage that no longer applies. Be sure to get them removed.
HEADS UP: Whenever you have a significant claim, the mortgage company will be one of the payees on your claim settlement check. Just that alone can be an inconvenience. But it becomes a major hassle when one of the institutions listed no longer has a vested interest in your home. The insurance company is bound by contract to include the mortgage company on all settlement checks beyond a stated threshold.
*3. Check the coverage on your home (dwelling or building). This is without question the single most important coverage to examine, consider and adjust whenever necessary. Having been an agent during the two raging firestorms in San Diego, CA in this decade, I can tell you that underinsured homes are just NO FUN! Two of my clients lost their homes in the 2003 fires and fortunately they were both adequately insured. (we call all our homeowner clients once a year to review their coverages and suggest improvements and adjustments) But I can tell you that there were literally hundreds of people in the area that were not so fortunate. Many were underinsured by over $100,000! Contractors were giving rebuilding bids on homes for $400,000 with insurance policies with limits less than $300,000. See if that doesn't tweak your financial well-being just a little. Here's the solution.Get an accurate rendering of the square footage of your home. Check county records, take a look at zillow.com, call your favorite Realtor, or get a tape measure and do your thing. Usually you don't include the garage in this calculation. Once you get your square footage, then you need to determine the building cost per square foot in your area for a home like yours. Call a local contractor for a quick estimate or you can call your insurance agent. Average costs in San Diego run about $200 per square foot. With that, a 2000 square foot would take about $400,000 to rebuild. Custom homes can be significantlly more. For a more complete discussion of this, check out: How Much Homeowners Insurance Do You REALLY Need?
Your contents coverage is usually 75% of the amount you have on your home. For example, if you have $400,000 on your home, you'll have an additional $300,000 to cover your personal property (furniture, clothing, dishes, TV, collections, shoes, tools, etc) Usually this is enough, but think through it anyway. If you have antiques, art, collections of any kind then you may need more. Ask your agent for help if you need to.
4. Look at your Personal Liability Coverage. This is the coverage you need when you get sued. Little Johnny runs across your front yard and trips on one of your sprinklers and ruins his chances to become America's Next Top Model and his parents sue your for $250,000. Make sure you don't scrimp here. It's not too expensive to get $500,000 or even $1 Million of liability coverage. If you have $100,000 or less, you could be setting yourself up for a mess just waiting to happen. Put a really big checkbook between your assets and someone who sees an injury as a lifetime paycheck. You might even consider a Liability Umbrella.
5. Check your 'special limits'. This is a REALLY BROAD subject that I just can't do justice to here in this post. Simply stated, there's limits on many things such as cash, computers, cameras, jewelry, furs, goldware, silverware, tools, etc. Call your company and ask for a review. You can increase many of these limits for just a few dollars a year. Sometimes the available increase isn't enough. That's the perfect time to consider a Personal Articles Floater (or it's called many different names) It's a policy that's designed to place stated amounts of coverage on many items from jewelry, business tools, iPods, hearing aids, cameras, musical instruments and on and on. If you have more than 'the average Joe' of ANYTHING, then check this out FOR SURE!
6. Check your deductible! This can be a tremendous cost-control tool in your insurance spending. Simply stated: The larger your deductible, the greater your savings. Usually you can save close to $100 per year just by going from a $500 deductible to $1000. Pick the largest number you can stand without losing sleep at night and ask your agent or company the savings you'd realize by changing. If you have a $250 or smaller deductible, it's definitely time to change it UP! Keep in mind that you usually hit a point of 'diminishing returns' once you get to $4000 or more. This means that you'll save less and less for each additional $1000 you choose. It might make sense to go from $1000 to $2000 if you save $85 a year by doing so, but not from $5000 to $6000 if you only save another $21 by making that jump.
Monitoring your insurance costs and coverages can result in a lot of savings AND peace of mind. Be sure you keep notes and file your thoughts and changes from year to year. These recoreds will make your annual call quicker and easier each year.
Feel free to contact me anytime if you have questions.
Till next time...
It's a Good Life !
Dennis Volz Insurance Agency
10791 Jamacha Bl, Suite 1, Spring Valley, CA 91978
OFFICE: (619) 670-1000 - FAX: (619) 670-1121
eMail:Dennis@DennisVolzInsurance.com
Websites: Company Site: DennisVolzInsurance.com
Municipality not liable for failing to erect signs
Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (S.C.J.)
The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.
Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:
I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)
Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.
The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.
Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:
I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)
Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.
Kamis, 04 Februari 2010
Calculation of Housekeeping Losses
McIntyre v. Docherty [2009], 97 O.R. (3d) 189 (C.A.)
The Court of Appeal recently commented on the proper method of calculating housekeeping losses.
The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.
The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.
In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.
The Court of Appeal recently commented on the proper method of calculating housekeeping losses.
The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.
The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.
In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.
Selasa, 02 Februari 2010
New Summary Judgment Rule Results in Dismissal of Claim
Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
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