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Effective Claims Management: The role of the crisis communication strategy
November 04, 2011

Crisis communication is a strategic component of an organization's overall operational response to a crisis. The significance of the communication plan, in the over all crisis management model, is many times under estimated. During a crisis, effective messaging to shareholders, stakeholders and the public, can be determinative as to how an organization's reputation, ie. it's brand and image, will be maintained. In addition, any crisis represents the potential for findings of liability down the road. As such, it is crucial to ensure that the messages of today never become the evidence of tomorrow, which will be used against the insured at a trial in the future.

Effective Claims Management: Managing the Legal Journey with Your Counsel
November 04, 2011

Today, preparation for and seeking opportunities to avoid litigation prior to the loss even occurring is an integral part of the claim management process. It has become more complex not only because insurers and their insureds are more educated but they also, separately and together, want to be involved and understand the litigation process. It is also important to highlight that insureds, in particular, have developed higher expectations not only of the information they receive, but also the service they receive and the overall experience from the time they report the claim until resolution.

Effective Claims Management: Ambiguous Policy Wordings and Court Interpretations
November 04, 2011

Insurance policies must be interpreted in accordance with the well-established rules of policy interpretation... ambiguities in insurance contracts are to be construed against the insurer. This paper will give you tips and samples on watching for industry jargon, fancy grammar, consistency and broad terms.

Enforcing Letters Rogatory: A warning to connected businesses operating in multiple jurisdictions
October 31, 2011

Courts are sensitive to the increasingly international nature of business and the inextricable links between connected corporate entities. International business entities should be aware of this decision and note the liberal approach to requests for judicial assistance. This case is significant because it confirms the broad powers of our courts to enforce letters rogatory and compel corporations within Ontario to produce and appear in U.S. proceedings, notwithstanding that the corporation is not a party the proceedings. Details...

Case Study: Zurich Insurance Company Ltd. v Ison T.H. Auto Sales Inc
October 27, 2011

The Ontario Court of Appeal recently released this important decision on the position of an insurer whose subrogated claim is combined, as it must be, with the insured's uninsured loss claim in a single action.

The underlying action arose out of a fire and explosion as a result of which numerous new cars belonging to the insured, an automobile dealer, were damaged.

The matter was somewhat complicated by the fact that a class action had been commenced as a result of the loss event, and the insured had opted out of that class action, although the separate action commenced by the insured was ordered to be tried together with the class action and the two actions were being jointly case-managed.

Attempted car-jacking qualifies as an accident pursuant to the Statutory Accident Benefits Schedule (SABS)
by Michael Kennedy
October 22, 2011

A plaintiff drove his vehicle into a gas station and was assaulted by multiple attackers while his engine remained running. The plaintiff was ultimately able to put his vehicle into gear and escape, but not before sustaining serious injuries. Worthy of note is that the plaintiff's insurer paid him $73,061.27 in accident benefits before taking the position that the plaintiff was not involved in an accident, consequently seeking repayment of all amounts paid. Is a car jacking considered an "accident"?

Reckless driver solely at fault for single-vehicle accident despite poor road construction
by Michael Kennedy
October 22, 2011

A driver was speeding along an under-construction roadway that transitioned from asphalt to loose gravel. The motorist's velocity greatly exceeded that of both temporary and permanent speed advisory signs. The driver ultimately lost control upon the gravel road and was tragically killed. The motorist's family sued the regional municipality and road maintenance company for allegedly failing in their duties to properly maintain the road. Who's at fault?

Repairing a vehicle is not an ordinary use to which vehicles are put
by Michael Kennedy
October 22, 2011

The claimant was hired to effect body work repairs to a truck that he normally operated. The claimant's last memory was standing on the hood of the truck. He was found the next morning in a pool of blood and awoke in the hospital a few days later. He had sustained serious fractures and a brain injury. Arbitrator Feldman inferred from the evidence that the claimant had fallen from the truck while attempting to effect repairs to the roof. Is this an accident as defined by the Schedule?

Change in circumstances permits multiple applications for determination of catastrophic impairment
September 26, 2011

In McLinden v. Payne (2011 ONCA 439), the Ontario Court of Appeal considered whether s. 40(4) of the Statutory Accident Benefits Schedule precludes a person from making more than one application for a determination that he or she suffered a catastrophic impairment.

Legal determination that an at-fault motorist is underinsured is required before a plaintiff's OPCF 44R coverage is triggered
September 26, 2011

In Maccaroni v. Kelly (2011 ONCA 441), the Ontario Court of Appeal set aside an order dismissing an insured's action against her insurer, ING, for damages claimed pursuant to an OPCF 44R underinsured motorist endorsement. In this particular case, both the tortfeasor's insurance policy and the appellant's OPCF 44R endorsement had coverage limits of $1,000,000.00.

In the original action arising from the motor vehicle accident at issue, Co-operators General Insurance Company added itself as a statutory third party pursuant to s. 285 of the Insurance Act, R.S.O. 1990 c. I.8. Co-operators took the position that its insured (the tortfeasor) was in breach of the statutory conditions of his policy and that, as a result, the insured's policy limits were reduced to $200,000.00 pursuant to s. 258(11) of the Insurance Act.

Clarifying pollution exclusions in commercial insurance policies
August 18, 2011

The Ontario Court of Appeal recently delivered a decision interpreting the pollution exclusion commonly found in commercial general liability (CGL) insurance policies. Such exclusions typically preclude coverage for the insured's liability for the release or escape of pollutants at or from the insured's premises.

Motor and Marine Carrier Cargo Claims
by Stephen Barbier
June 06, 2011

Shipment of goods from one place to another involves complex networks of players, from shippers to cargo carriers, load brokers to stevedores, consignors to freight intermediaries, and so on. Given the volume and value of goods being shipped daily across the country and the world, international and domestic laws have been developed in order to ensure that the interests of the various parties are protected in the event that the goods are damaged while in transit.

Product Liability: Jurisdictional Issues In Canada
May 31, 2011

The proliferation of international trade and commerce has led to increasingly complex product liability litigation with potential parties located across all parts of the globe. Simply stated, a person could be hurt in Ontario by a product designed in Germany, sold in Pennsylvania, and assembled in India with parts manufactured in Japan. With each party in the chain of commerce a potential defendant, there are important jurisdictional issues which arise in the product liability context.

In cases of multi-jurisdiction litigation, three issues frequently arise...

Identifying and Addressing the Limitations of Waivers and Permission Forms in a School Setting
April 14, 2011

It is common practice for schools to offer enhancements to the curriculum in the form of field trips and extra curricular activities. These trips and activities may have certain risks associated with them depending on the activity. Examples of activities with risks associated are football, rugby, ski trips and climbing.

Two options to manage the risks associated with these types of activities are waivers and permission forms.

Suspending the Ability to Litigate
April 14, 2011

Difficult and tenacious litigants are individuals who are exceedingly dedicated and vindictive in their litigation. They are individuals who often have multiple actions against the same or different individuals or corporate entities, frequent appeals, actions against employees of corporations, actions that are obviously not going to succeed, frequent interlocutory motions and failing to pay costs. These individuals in many cases, are unrepresented or if represented, they may frequently change counsel. This type of litigant will become a source of frustration and for opposing counsel and they will increase the cost of the litigation. It is important for counsel to have a strategy to dispose of this type of claim expeditiously.