On Feb 16th, 2012, Hot Coffee, the documentary feature film Variety magazine calls an “Eye-opening indictment of the way big business spins the media”, will be screened for the first time in Vancouver at the Ridge Theatre.
The screening is sponsored by Cross Border Law, US Lawyers in Vancouver, with all proceeds from ticket sales going to the StreetoHome Foundation. Tickets are by donation with a suggested minimum of $5.
The film starts at 7pm and will be followed by a panel discussion of legal experts discussing the topics covered in the film and how they relate to Canadian residents and the law.
The next time you assist an American citizen involved in a motor vehicle accident that occurred in British Columbia, you should note that PIP liens are not recoverable in British Columbia.
Say you manage to settle a client’s BC mva claim for $25,000 all inclusive, with a subrogation lien of $5,000 by your client’s PIP insurer; the insurer is not entitled to recover the PIP benefits they paid to your client.
In British Columbia, the deemed release provisions contained in s. 83 of the Insurance (Vehicle) Act state that an out-of province insurer may not recover through the courts in British Columbia accident benefits it has paid.
Out-of-province insurers can have no greater rights than the person who obtained those benefits, and the insured is deemed to have released the claim to the extent of those benefits.
See Schaffer v. McPherson (1997), I C.C.L.I (3d) 88 (B.C.S.C.), and Matilda v. MacLeod (1997), I.C.C.L.I (3d) 94 (B.C.S.C.), both affirmed on appeal 2000 BCCA 1. A deemed release applies whenever the accident benefits paid by the out-of-province insurer are provided under a contract or plan of automobile insurance and are similar to the benefits paid under the appropriate Regulation in British Columbia. See Gurniak (Guardian ad litem of) v. Nordquist, 2003 SCC 59.
So the next time you settle a claim that happened in British Columbia, you can save your client from surrendering thousands of dollars of their own money and protect yourself from a potential malpractice claim.
Ten-Minute Course
Avoiding Legal Malpractice Claims in Canadian P.I. Cases (or Can You find the Missing $865,000?)
By Greg Samuels*
The Fact Pattern:
John Smith is a Washington resident, insured by GEICO, who was catastrophically injured as a passenger in a motor vehicle accident in Vancouver, B.C. The Defendant, Jane Doe, also a Washington resident and determined to be 100% responsible for the accident, is insured by Farmers’ with a minimum $25,000 third party liability policy. Mr. Smith has PIP coverage of $10,000 and UIM of $100,000 with GEICO. His future medical expenses alone will exceed $2 million. You have determined that Ms. Doe is insolvent, and you are now in a position to settle Mr. Smith’s case with the various insurance companies. How much do you settle for? Disregarding exchange rates, if you said $135,000, do yourself a favor and buy more malpractice insurance.
The Proper Analysis:
The Insurance Corporation of British Columbia (“ICBC”) provides minimum third party liability coverage to every B.C. driver of $200,000. ICBC also grants $150,000 in no-fault medical and rehabilitation benefits (“Part 7 Benefits”), as well as $1 million in UIM or “UMP” coverage, subject to certain deductions. Owing to a certain Power of Attorney and Undertaking (“PAU”) which Farmers’ filed with the Canadian Council of Insurance Regulators (“CCIR”) on September 26, 2002, Farmers’ is obligated to increase the minimum limits offered to its policyholders for all classes and kinds of coverage, whenever one of its policyholders is involved in an accident in British Columbia. These classes and kinds of coverage include tort, PIP and UIM.
In other words, you can disregard Mr. Smith’s and Ms. Doe’s limits of coverage and look instead to ICBC’s minimum limits. You should settle Mr. Smith’s tort claim with Farmers’ for $200,000 plus an additional $150,000 for PIP or “Part 7 benefits”. You should then settle Mr. Smith’s UIM claim with Farmers’ (and possibly GEICO) for $650,000 ($1 million less amounts received in tort and Part 7, as well as any other applicable deductions). Continue reading →
In every civil case, the plaintiff has the burden of proving the basic elements of negligence—duty, breach, causation and damages—and such proof is required by “a preponderance of the evidence”. This is defined as “more probable than not” or “more likely true than not true” or “on a 51% basis”. The reality is that a plaintiff must be prepared to show proof on a much more significant basis than 51%, as a juror is unlikely to award significant damages without substantial proof of injury and loss.
However, there are some cases that impose a different burden on a plaintiff—notably Products Liability cases in the US are governed by Strict Liability. In such cases, a plaintiff who was injured by a defective product must prove that the product was defective. Once the product is shown to have been manufactured defectively, the defendant manufacturer is liable, period. If, for example, a family is driving down the road and one of the tires on the vehicle suffers a sudden loss of air or “blowout”. The vehicle flips, passengers are ejected and all suffer serious personal injuries and losses. At trial, the injured parties must prove that the blown out tire was manufactured defectively, and once proven, their burden stops there. The manufacturer of the defective tire is then liable for any damages that are proven.
In BC, a plaintiff’s burden of proof for a defective products case is much more onerous. There a plaintiff must prove that the defendant manufacturer was negligent in the way it designed or manufactured the product. This is a significant burden and good reason why there are very few products cases that proceed to judgment in British Columbia.
In both the US and Canada, personal injury law, a subset of the law of Negligence, is based on the English system of Torts. While much of the procedural law governing personal injury litigation, including the types of damages recoverable, is controlled by the laws of individual states and provinces, the two countries share much of the same substantive law.
Notwithstanding there are some cases governed by strict liability (which will be discussed in a future blog), the law of Negligence requires a showing that a defendant owed a DUTY to someone to behave in a particular way, that the defendant BREACHED that duty by failing to act in that particular way, that such breach CAUSED someone to be injured, and that the person thereby incurred DAMAGES, either to his person or to his property. These four elements must be proven in every civil lawsuit involving personal injury, whether the lawsuit proceeds in the US or Canada.
For example, Driver Alan is proceeding down Broadway and crosses Pine Street on a green light. As he drives through the intersection, Driver Barbara, proceeding in the opposite direction down Broadway, suddenly turns left in front of him, causing Alan to smash his vehicle into her, and causing Alan himself to lurch forward, striking his head on the windshield in front of him. Alan suffers a brain injury and is no longer able to work as an accountant.
Whether on Broadway and Pine in Vancouver, BC or the same intersection in Seattle, WA, the elements which Alan must prove are the same—that Barbara owed other drivers a DUTY to heed the rules of the road, including yielding the right of way to a “favored” (US) or “dominant” (CDN) driver; that Barbara BREACHED that duty by turning her vehicle directly into the path of the oncoming driver; that, as a direct and foreseeable consequence of her action, Barbara CAUSED Alan to be injured and his vehicle damaged; and that Alan suffered DAMAGES, in this case including loss of enjoyment of life, lost wages, medical expenses and property damage.
I’m a lawyer facing a forum non conveniens challenge from a bicycle manufacturer based in Connecticut, about a Canadian resident who was injured during a Seattle bike race, when the frame of her bike fell apart and she lost control, severely injuring herself. The company is saying that the case should be tried in Vancouver, BC, where she lives and where all of her doctors and therapists are. Of course, the liability witnesses are all located in Seattle and Connecticut.
ANSWER:
Thank you for posing your question on our blogsite. In the interest of responding to your inquiry in a way that will benefit all of our readers, I’d like to direct you to an article, Extending American Products Liability Jurisprudence to Canadian Plaintiffs – Lessons from a Seven Year Battle, we published in 2004 which extensively discusses the issues you’re facing, regarding Choice of Law and the doctrine of “forum non conveniens”. The article tracks the procedural history of our case, Tepei v. Uniroyal, et al, which resulted in a $9.1 million verdict in Lewis County, Washington. More importantly for your purposes, the article discusses how the Michelin Tire Company applied (unsuccessfully) to have our case removed to British Columbia on the very same basis that your bike manufacturer is alleging.
A second article, Wrongful Death and Survival Actions in Washington State: Comparing Benefits from a Canadian Perspective, also addresses Choice of Law and fnc issues in our discussion of the Brooks v. Cytodyne case, which arose from an accident which occurred just north of the border, but involved a defective product (health food supplement causing psychosis) manufactured in New York and sold in Kirkland, WA.
On a selfish note, I have twice been called as an expert in such cases, to assist the court with a comparison of the laws on both sides of the border, and that may be appropriate in this case. I will contact you directly.
In a subsequent blog, I’ll tackle Americans Injured in Canada. In this piece, I’ll discuss how a claim for a Canadian is different when it proceeds in the US.
Most BC drivers assume that everyone around them is insured. When they travel in BC, they know that other drivers cannot register their vehicles or obtain license plates without proof of insurance, and the minimum third party liability coverage is $200,000. However, the very small difference in premiums for $1,000,000 in third party coverage means that most people opt for the million. Along with that third party coverage, every ICBC policy includes $150,000 in Part 7 no-fault medical expenses (known as PIP or “personal injury protection” in the US), provision for TTD (temporary total disability) payments to compensate for wage loss and $1,000,000 coverage for UMP (underinsurance, known as UIM in the US).
Not so in Washington State. There, the minimum legal level of third party liability coverage is only $25,000, and many drivers operate a vehicle without any insurance at all. It is a very rare policy that affords coverage of $1,000,000. That’s why one of the first things that a Canadian should do if involved in an accident in the US is find out how much insurance the defendant driver has. If you have a serious injury and expect to be off work for some time, you may find that the defendant cannot adequately compensate you for your injuries. Assuming he or she does not have personal assets besides the insurance, you may be forced to pursue ICBC under the UMP provisions of your own insurance policy.
Unfortunately, ICBC can force you to pursue your claim Continue reading →
Personal injury awards are governed by the law of Negligence, which always includes several basic elements—Duty, Breach, Causation and Damages—but one cannot look to a national set of awards to determine what an appropriate range of damages might be for a specific case. This is due to the fact that stare decisis, the common law principle that every case is determined by the law developed from cases that preceded it, requires a judge to give greater deference to a decision from his or her own state than one from a different state.
Even that explanation ignores the fact that most personal injury awards made at trial in the U.S. are determined by a jury. Still, one must look to other personal injury awards in the state and in the particular county in which the case will be tried to determine the appropriate range of damages.
Jurors from King County, Washington (Seattle) may have a completely different set of values than jurors from Riverside County, California (Palm Springs) or even from Whatcom County, Washington (Bellingham). Such factors as age, level of education, job, political bent, the economy, one’s own unique personal circumstances, and many other factors all contribute to the range of potential damages awarded for “pain and suffering”. Different lawyers’ abilities to tell their clients’ stories also contribute to this range.
How does one determine which county the case is likely to be tried in? The laws of “Personal Jurisdiction” and “Venue” require that the lawsuit be started in either the county where the accident occurred or the county in which the defendant resides. However, if started in the county where the defendant resides, the defendant could apply to the court to have the litigation transferred to the county where the accident occurred, particularly if that would be more convenient to the non-interested witnesses involved in the case (eyewitnesses to the accident, medical personnel on the scene, ER doctors and nurses).
In Washington State, one useful tool for attorneys is a publication called “Jury Verdicts Northwest”, which lists trial awards and settlements by type of injury, state and county, and even principal lawyers and experts. Determining appropriate settlement amounts for a particular injury is then more of an “art” than a “science”, as there are many factors that influence a settlement. First and foremost, as discussed in our blog entry of April 2, 2009 (Colossus Adjusting Software), is the type of adjusting software the defendant’s insurance company is using to evaluate the case. For many insurers, the claims representative can do little more than plug your data into the computer and wait for the Wizard to tell him or her how much to offer. Where the adjuster may have more discretion, there are other factors which will influence the size of the offer.
One of these factors is whether the injured party is represented by a lawyer in the jurisdiction in which the accident occurred. In other words, if the case cannot be settled, is the party able to advance a lawsuit in the courts? If not, then the insurance adjuster has been given no incentive to increase the size of the offer.
Let’s face it, no one wants to go to trial. (Personally, I love to be in a courtroom, but even I recognize the value of a sure settlement for reasonable value over the risk of a protracted lawsuit where a party’s fate may be sealed by a jury who cannot understand or appreciate the injuries and disabilities sustained). But sometimes, a defendant’s insurance company will offer so little to settle that no one would choose settlement over trial. If a defendant or his insurer truly wishes to avoid trial, they’ll consider the likely result at trial and then determine the amount that would persuade a party to forego that opportunity. Unless a person is represented by able counsel in the jurisdiction, then there’s no potential jury award even to provide a threat to the insurance company.
I try to keep track of the amounts of the last settlement offer received before trial and the ultimate jury verdict we have received (US cases only), excluding economic damages that are specific to the facts of each particular case (e.g., future wage loss depends on how much the person was earning and how much they’re unable to work in the future). In our experience, the verdict exceeds the offer by an average of 425%. The following chart is illustrative, and does not even represent the most egregious differences between offer and verdict.
My best advice to a person negotiating a personal injury settlement with an insurance adjuster?—ask a lawyer to review the settlement. Many personal injury lawyers are willing to sit down for a free half-hour consultation, and many work on contingency, where the fee is a percentage of the recovery. I frequently entertain arrangements with clients whereby I will take half of any amount I receive for them in excess of their offer, up to a maximum of 1/3 of the total recovery. In most cases, the ultimate attorney’s fee I charge is 1/3, meaning that the amount that the insurance adjuster offered them before they had a lawyer was less than 1/3 of the true settlement value.
The above article addresses ways to maximize claim value for smaller claims, where the difference between judgment value and settlement value is less than $20,000. Bear in mind that few adjusters will settle claims for more than fifty cents on the dollar without at least the threat of litigation, so it’s important to know when to engage U.S. counsel to avoid leaving significant value on the table.
The following factors will significantly increase the value of a U.S. claim over a similar B.C. injury claim: Continue reading →
Question #1:
Is it possible to bring a bad faith claim for acts which are not specifically proscribed by the Washington Administrative Code?
ANSWER: Absolutely. The WAC’s only set minimum standards for insurer conduct, and compliance with the WAC’s alone does not guarantee an insurer has avoided a bad faith claim. The duty to act in good faith is “fairly broad and may be breached by [a variety of] conduct short of intentional bad faith or fraud.” See Truck Insurance Exchange v. Vanport Homes, Inc., 147 Wn.2d 751, 764, 58 P.3d 276 (2002). The trier of fact – typically a jury – will be charged with determining if the questioned conduct rises to the level of bad faith. See Kallveig, supra.
Question #2:
These standards seem pretty amorphous and plaintiff-friendly. Is there any good news for insurers in the case law? Continue reading →
set of values than jurors from Riverside County, California (Palm Springs) or even from Whatcom County, Washington (Bellingham). Such factors as age, level of education, job, political bent, the economy, one’s own unique personal circumstances, and many other factors all contribute to the range of potential damages awarded for “pain and suffering”. Different lawyers’ abilities to tell their clients’ stories also contribute to this range.
