Claims Canada December January 2015

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December/January 2015

GOING MOBILE Can apps work for independent adjusters?

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Contents DECEMBER / JANUARY 2015 • VOLUME 8 • NUMBER

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Cover Feature 12 Going Mobile The rapid take-up of mobile devices by newer generations of consumers may spell big changes for the claims management process. Mobile claims technology in the form of tablets and other tools have existed for some time for adjusters and insurance companies, but to date only a handful of insurers have experimented with mobile apps for customers.

How will mobile technology evolve for insurance companies, clients and adjuster partners?

BY CRAIG HARRIS

24

Spotlight 22 All in the Family Barrie, Ontario’s Georgian Claims Services has a unique commitment to quality that transcends the traditional employer-employee relationship.

BY CRAIG HARRIS

Education Forum 42 Condo Coverage Condo dwellers don’t always fully understand coverage issues, and adjusters may find themselves needing to explain some nuances.

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News Features 24 Diminished Value

34 Trends in Subrogation

Recent court decisions reveal a changing landscape in Alberta on determining how much a vehicle involved in an accident is worth.

Subrogation has historically been the forgotten corner of a claims department – it shouldn’t be, one lawyer argues.

BY JOHN GILBERT & SCOTT MATHESON

38 Liquor Liability

28 Lessons in Policy Language Ontario Court gives a plain and simple reading of the faulty workmanship exclusion.

BY MICHAEL TEITELBAUM

30 Is Anybody Home?

A British Columbia court clarifies the scope of vacancy exclusion in the homeowner’s insurance policy.

BY LAURA A. WRIGHT

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BY NEIL COLVILLE-REEVES

Some key concepts every adjuster and claims examiner should know when confronted with alcohol-related claims.

BY LORNE FOLICK & JESSICA HANBIDGE

38

Departments 4 First Notice 44 On The Scene

Columns 10 President’s Message 42 Education Forum

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• first notice FN IBC, Brokers pleased with passage of Bill 15 in Ontario The Insurance Bureau of Canada said November 20 it welcomed the news that the Ontario legislature has passed Bill 15, the Fighting Fraud and Reducing Automobile Insurance Rates Act. “It’s a great step and strikes a blow at those in the car accident business who have wrongly profited from the current auto insurance product,” said Ralph Palumbo, vice president for Ontario at IBC said in a statement issued shortly after the bill passed.

IBC says that Bill 15, which still requires Royal Assent to become law, provides the basis for: • Continuing the right of claimants and insurers to appeal decisions to the courts;

“Everyone – including the insurance industry – is in agreement on one thing: auto insurance in Ontario is far too expensive. We realize the financial hardship it can create for vehicle owners, particularly young people and those in northern and remote communities,” Palumbo noted. “Now we have an opportunity to begin fixing the system once and for all.”

In a statement also issued Nov. 20, the Insurance Brokers Association of Ontario also welcomed the passage of the legislation. “On behalf of the six million policyholder’s our brokers represent provincewide, IBAO is happy to see the passage of Bill 15,” Chris Floyd, the association’s president said. “This is a good step towards the responsible reduction in insurance costs by fighting fraud.”

“We are pleased that the Ontario government passed Bill 15 without issue, it is a good first step,” Karin Ots, senior vice president of regulatory and government relations for Aviva Canada, also noted in a statement. “But to truly affect long-term change for the Ontario auto insurance system, we need to reduce claims costs to be in line with other provinces.” l

BILL 15

• Establishing a more effective dispute-resolution system; • Continuing the right of claimants to pursue tort claims in court; • Reducing the prejudgment interest that can be awarded for non-economic losses to reflect current interest rates; and • Reducing fraud and abuse in the towing and vehicle storage industries.

Drug-related teen driver deaths on the rise The number of teen fatalities in auto collisions involving drug use rose significantly between 2000 and 2010, to a point that is as serious as drinking and driving, according to a new review from State Farm.

Based on secondary research from the Traffic Injury Research Foundation (TIRF), in 2000, a greater percentage of fatally injured drivers between ages 16 and 19 tested positive for alcohol (40.3%) than drugs (23.6%).

However, by 2010, that gap closed, with drug-related fatalities jumping to 39.2% and alcohol-related deaths dropping slightly to 36.6%. Overall, more males (at 43%) tested positive for drugs than females (25.4%) between 2008 and 2010.

Drugs found included illicit substances, prescription drugs and over-the-counter medications, and some were used in combination. Cannabis was the most prevalent, with 28.6% of fatally-injured drivers testing positive for its use.

“While drug-impaired driving isn’t necessarily new, this upward trend demonstrates that our society needs to increase awareness of the dangers, similar to what we have with alcohol,” Ward Vanlaar, vice president of research at TIRF commented in a statement. “Anybody looking at the data will understand why, especially when they see a peak year like 2006 where close to half, 43.7%, of fatally injured teens tested positive for drugs in their system.” l 4

Claims Canada

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December/January 2015

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• first notice FN Smart home technology gets mixed reaction from insurers Smart home technology offers significant promise in getting the number of losses down, but replacement costs must also be considered to capture a complete picture of its potential effect, Bob Tisdale, president and chief operating officer of Pembridge Insurance Company, suggested in Ottawa October 23.

The news is good from a frequency of loss standpoint, Tisdale noted of smart home technology during the CEO Panel at the Insurance Brokers Association of Ontario’s 94th Annual Convention in Ottawa. But as houses become smarter, he emphasized that replacement cost must be considered. Although there will be fewer losses, when a loss does occur, “it will be more expensive because that technology has also got to be replaced.”

Tisdale cited airbags as an example of the need to look at replacement cost.

While working with his company in Chicago, “we were writing these cars off because the airbag cost more than the car to replace it,” he relayed.

“We need to think of that as we bring technologies in, but certainly they will be tremendously beneficial in get-

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Claims Canada

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December/January 2015

ting the number of losses down (in homes),” Tisdale told attendees.

“If we think that installing an alarm reduces the exposure, what about installing technology that tells you before your water heater is going to burst, tells you when your heating system went down or that somebody should go home before the pipes freeze,” asked Greg Somerville, president and chief executive officer of Aviva Canada.

Jean-François Blais, president of Intact Insurance, pointed to pipeline technology and the use of sensors to measure pressure and prevent leakage. Blais’s hope is that the same can be done for oil tanks, water tanks and even pipes in the home, thereby ensuring the homeowner gets “the signal before we get the claim.”

What is happening with cars will happen with homes, Tisdale suggested. “The amount of sensors and different technologies we put into the cars for crash avoidance, lane changes, blind spots and all that kind of stuff, it’s not a stretch to think that’s coming to our houses,” he noted. l

CAT losses hit $14 billion for first nine months of 2014 North American catastrophe activity caused just more than $14 billion in insured losses in the first nine months of the year, Property Claims Services reported October 15.

PCS has designated 26 catastrophe events for the first nine months in the United States, on par with last year, though insured losses did rise 13% year-over-year, to $13.6 billion. However, losses will still be short of the 10-year average of $18.7 billion, PCS said.

Texas has been the state most affected this year, at $1.9 billion in losses, followed by Nebraska at $1.2 billion, then Illinois and Pennsylvania, both of which sustained catastrophe losses of approximately $1.1 billion, according to the report.

Personal losses made up 61% of catastrophe losses in the first nine months of 2014 ($8.3 billion), down from 63% for the first half of the year. Commercial losses rose slightly to 20%, up from 17% in the first half of 2014, due mainly to the earthquake that hit California in late August.

“In Canada, both frequency and severity were down significantly in what has been the quietest catastrophe year since at least 2009,” the report notes. “Insured losses from four catastrophe events reached only C$700 million, down almost 80% from last year’s record.”

The two third-quarter events in Ontario and Alberta resulted in insured losses of C$553 million. However, overall catastrophe losses fell 77% from last year, but 2013 was Canada’s most active, largely because of second- and third-quarter catastrophe activity, the report notes. l www.claimscanada.ca

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• first notice FN Collaboration key to EQ preparedness: government Earthquake preparedness demands taking steps now to build resilient communities that can better withstand and recover from the impacts of natural disasters and other emergencies, Steven Blaney, Canada’s minister of public safety and emergency preparedness, emphasized during a speech in Vancouver October 15.

Speaking at an earthquake symposium hosted by the Insurance Bureau of Canada (IBC), Blaney called on all levels of government, industry, academics and the public to work together on earthquake preparedness strategies.

“Canada’s evolving approach to emergency management means our government is shifting from a reactive model to one that allows us to better identify risks related to natural disasters, and to take steps to eliminate or reduce these risks and their impacts before a disaster strikes,” the minister noted.

As part of the Economic Action Plan 2014, the federal government has earmarked $11.4 million over five years for Natural Resources Canada to upgrade the earthquake monitoring system, including more advanced technologies that provide timely public alerts in high-risk and urban areas. Ottawa has also committed to providing $200 million over five years, starting in 2015-2016, to better protect Canadians and their homes through a National Disaster Mitigation Program.

Paul Aquino Publisher (416) 510-6788 paul@canadianunderwriter.ca

Steve Wilson Senior Publisher (416) 510-6800 steve@canadianunderwriter.ca

Elliot Ford Account Manager eford@canadianunderwriter.ca (416) 510-5117

Craig Harris Editor (905) 873-7691 craig@editinsight.com

Gary White Production Manager • (416) 510-6760

Christine Giovis Account Manager (416) 510-5114 christine@canadianunderwriter.ca

Michael Chimienti Art Director mchimienti@bizinfogroup.ca

Subscription inquiries (416) 442-5600 • 1-800-668-2374 Fax: (416)Indeépendent 442-2191 Official Journal of the Canadian Adjusters’ Association

www.claimscanada.ca Produced by the publishers of Canadian Underwriter magazine

A bi-monthly magazine (6x per year), Claims Canada is published by BIG Magazines LP, a div. of Glacier BIG Holdings Company Ltd. Business Information Group is located at: 80 Valleybrook Drive, Toronto, ON, M3B 2S9.

Claims Canada magazine is the Official Publication of the Canadian Independent Adjusters’ Association [CIAA] and through its editorial content and circulation brings together the ‘entire property & casualty insurance claims market nationally’ with information and insight into the profession, business and people of insurance claims and loss adjusting.

All key claims process stakeholders are reached as part of our readership community – including: both CIAA member and non-member independent claims adjusting firms; insurance and reinsurance company executive, claims management

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In related news, Canadians don’t generally believe a major earthquake here is imminent, and many are misinformed about how potential damages from such an event would be covered, according to a recent poll commissioned by the Insurance Bureau of Canada.

Those Canadians living in areas most vulnerable to earthquakes believe that the danger is at least 50 years away, the poll results suggest. The survey included roughly 2,000 residents of British Columbia and the OttawaMontreal-Quebec City corridor, and was conducted in the spring of 2014 by Pollara Strategic Insights.

More than two-thirds of respondents to the poll said they don’t have earthquake insurance (or don’t know if they have it), and awareness of earthquake insurance was particularly low in the Quebec region.

“Preparing Canadians for this type of major disaster is a strategic priority for our industry,” said Mary Lou O’Reilly, senior vice president of issues management and communications in a statement on the poll findings. “But before we can help those living in the most vulnerable regions, we need to know what they are thinking. When do people think an earthquake will happen? Are people prepared – both physically and financially – to deal with an earthquake? Do consumers have earthquake insurance? Why or why not? And what are their expectations around insurance coverage?” l

Claims Canada

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December/January 2015

Mike Wells Account Manager • (416) 510-5122 mike@canadianunderwriter.ca

and claims adjusting personnel; corporate risk managers and loss control professionals; insurance brokers; insurance law firms; forensic engineers and accountants; appraisal, restoration, rehabilitation and collision repair professionals; Insurance Institute chapters; insurance associations, regulators and related claims market recipients.

The contents of this publication may not be reproduced or transmitted in any form, either in part or in full, without the written consent of the copyright owner. Nor may any part of this publication be stored in a retrieval system of any nature without prior written consent.

www.claimscanada.ca

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Message from the President La Plume du Président ALBERT POON

As I pen this message the Christmas Season is just coming into full swing; however, by the time it is published all the festivities will have come and gone and many claims professionals from across Canada will be assembling at the CICMA/CIAA Ontario Chapters’ 48th Annual Joint Conference. Related meetings occur throughout the year in several regions across the country and have fittingly gained industry-wide recognition as “must attend” events, reinforcing the importance of “united and committed leadership through education, professionalism and communication.” I look forward to attending many of these events during my term as President and I commend the CIAA and CICMA members for their collaborative efforts in providing these forums to address and educate us on current and timely issues affecting our industry.

Achieving the goals and objectives of the association requires ongoing review in order to continually be value-added to you, our members. We have drawn on the expertise and experience of our Executive to refine our strategic action plan, charting our path over the next three years and beyond. By aligning our internal committee structure with strategic functional groups, our efforts will be consolidated with a strong focus on strengthening membership, representing your professional interests to Government and Industry while continuing to provide direct access to the resources and opportunities to perform well under the complex pressures Independent Adjusters face every day.

The claims profession requires constant attention to detail, a practice necessitating continuous professional development. Access to current and relevant publications, bulletins, research, seminars and conferences keeps CIAA members up to date on the latest trends, 10 Claims Canada

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Au moment où j’écris ces lignes, le temps des Fêtes approche à grands pas. Toutefois, au moment où ce message sera publié, les festivités seront terminées et de nombreux professionnels en sinistres du Canada se rassembleront à l’occasion de la 48e Conférence annuelle conjointe ACDSA/ ACEI des sections régionales de l’Ontario. De telles rencontres ont lieu dans plusieurs régions du pays au cours de l’année et ont acquis, au sein de l’industrie, une reconnaissance justifiée d’événements à ne pas manquer, réitérant l’importance d’un « leadership uni et engagé grâce à l’éducation, au professionnalisme et à la communication ».

Je participerai avec joie à bon nombre de ces événements durant mon mandat de président. Qui plus est, je tiens à souligner les efforts de collaboration dont font preuve les membres de l’ACDSA et de l’ACEI pour organiser ces forums qui nous permettent d’en apprendre plus et de rester informés sur les sujets d’actualité qui touchent notre industrie.

Pour concrétiser les objectifs de l’association, nous devons nous examiner constamment afin de nous assurer d’apporter sans cesse une valeur ajoutée à nos membres.

Nous avons tiré profit de l’expertise et de l’expérience de nos cadres pour peaufiner notre plan d’action stratégique, et avons tracé la voie que nous suivrons durant les trois prochaines années et au-delà. En harmonisant la structure de notre comité interne aux groupes fonctionnels stratégiques, nous consoliderons nos efforts et mettrons un fort accent sur la hausse des adhésions, sur la représentation de vos intérêts professionnels auprès du gouvernement et des acteurs de l’industrie, tout en continuant de vous offrir un accès direct aux ressources et de vous fournir des occasions d’obtenir un bon rendement malgré la complexité des pressions auxquelles sont soumis les experts en sinistres indépendants.

Le domaine des sinistres requiert de porter constamment une attention aux détails, et constitue une profession où le perfectionnement continu est nécessaire. L’accès à de la documentation pertinente actuelle comme des publications, des bulletins et des études ainsi que la participation à des séminaires et à des conférences permet aux membres de l’ACEI d’être au courant des dernières tendances, des plus récents défis et des nouvelles questions qui touchent le dowww.claimscanada.ca

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challenges and issues. CIAA’s website also offers members a vast resource.

Members advance their careers through an array of quality educational opportunities. From our online education program with a full stream of quality “claims” specific training at basic, intermediate and advanced levels to our accreditation programs leading to the CLA, FCLA and FCIAA designations, all enhancing the professionalism of CIAA Members.

Significant savings are offered through our group benefit programs. With the increasing rise in cyber-attacks, CIAA’s Professional Liability Insurance program is being extended to include Cyber/Privacy breach coverage via endorsement. As well, members have let us know of the value they have found through our Group Home and Auto Insurance program.

Rest assured, your Executive is working diligently in all areas to the continued benefit of all members. Stay tuned for exciting progress updates!

I wish all our industry partners the best for a collective, healthy and prosperous new year! n

maine. Le site Web de l’ACEI constitue de plus une ressource considérable.

Le cheminement de carrière de nos membres est soutenu par une vaste sélection d’occasions d’apprentissage de qualité.

Qu’il s’agisse de notre programme d’éducation en ligne offrant une diversité de formations sur les sinistres aux niveaux de base, intermédiaire et avancé ou de nos programmes d’accréditation menant à l’obtention des désignations d’expert en sinistres, de FCLA ou de FCIAA, ils ont ceci en commun : ils accroissent le professionnalisme des membres de l’ACEI. Des économies substantielles sont offertes par l’entremise de nos régimes collectifs. Puisque le risque de cyberattaque est en hausse, le programme d’assurance responsabilité professionnelle comprend maintenant un avenant de garantie contre la violation cybernétique ou la violation de la confidentialité.

Certains membres nous ont en outre fait part de la valeur que leur apporte le programme d’assurance habitation et automobile collective.

Soyez de plus assuré que votre équipe de direction travaille avec diligence dans tous les domaines au profit continu de tous les membres. Soyez à l’affût des nouvelles à venir au sujet de nos progrès!

Je souhaite à tous nos partenaires de l’industrie mes meilleurs vœux pour que la nouvelle année soit collectivement pleine de santé et de prospérité! n

NATIONAL EXECUTIVE 2014 - 2015 PRESIDENT Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com 1ST VICE-PRESIDENT Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA AMG Claims Inc. 535 North River Road, Unit 3 Charlottetown, PEI C1E 1J6 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca SECRETARY Monica Kuzyk, FCIP, CRM Curo Claims Services 125 Northfield Dr. W., P.O. Box 218 Waterloo, Ontario N2J 3Z9 Phone: (866) 952-2876 Fax: (519) 888-9704 E-mail: mkuzyk@curocanada.com

www.claimscanada.ca

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TREASURER John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca PAST-PRESIDENT John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca EXECUTIVE DIRECTOR Patricia M. Battle Canadian Independent Adjusters’ Association/ L’Association Canadienne des Experts Indépendants Centennial Centre, 5401 Eglinton Avenue West, Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Toll Free: 1-877-255-5589 Fax: (416) 621-7776 E-mail: pbattle@ciaa-adjusters.ca

DIRECTOR James B. Eso, CIP, CIOP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca DIRECTOR John Jones, BA Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@cl-na.com DIRECTOR Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com

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• cover story

GOING MOBILE

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The rapid take-up of mobile devices by newer generations of consumers may spell big changes for the claims management process. Mobile claims technology in the form of tablets and other tools have existed for some time for adjusters and insurance companies, but to date only a handful of insurers have experimented with mobile apps for customers. How will mobile technology evolve for insurance companies, clients and adjuster partners? Should insurer mobile apps be directed to customer, or adjuster, functionality?

And how will the integration process work for all parts of the claims value chain?

BY CRAIG HARRIS

I

n the world of shiny new apps for everything from celebrities to cooking to cars, the property and casualty insurance industry is, perhaps predictably, slowly playing catch up. Several insurance companies have recently launched mobile apps, mainly directed at consumer claim reporting capabilities.

The Co-operators was one of the first companies to hop on the mobile bandwagon, releasing an iPhone app called Mobile Assist in October 2010 that allows customers to submit home and auto insurance claims using any Mac mobile device. Other companies have followed, including RSA Canada’s launch of its online home and auto claim reporting feature directly through its mobile app on all three platforms – Blackberry, iPhone and Android. RSA customers can report a home or auto claim, locate their broker, access product information, find auto repair shops and contact emergency services, the www.claimscanada.ca

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company announced in February 2012.

Other insurance companies, including State Farm Canada, La Capitale General Insurance and Alberta Motor Association, have also introduced mobile apps with various features, including claims reporting.

In April 2014, Quebec-based insurer SSQauto upped the ante by releasing a mobile claims app available to the general public, not just the company’s clients. The free smartphone app includes three modules: the joint report (on the scene of the accident involving two vehicles), the auto insurance claim (one vehicle involved) and the home insurance claim, according to an SSQauto press release.

“We understand that any claim comes with its share of concerns. We make it our duty to offer effective and modern solutions for fast insurance claims settlement,” said Gilles Mourette, CEO of SSQauto. “Users of our mobile app will have access to the

equivalent of a claims adjuster at their fingertips, around the clock, propelling our quality customer service to new heights.”

Key Differentiator In a recent report on insurance trends, consulting and technology firm CapGemini said that mobile self-service tools, particularly for claims, could be a key differentiator for insurers in the years ahead.

“Claims services are the most widely available mobile self-service feature, and usage will increase sharply according to surveyed insurers – to 73% of providers in two years’ time from 16% now,” according to the GapGemini’s World Insurance Report - 2013.

“Investment is most likely initially in innovative and easy-to-use ‘apps’ that help customers to file and track claims (e.g., customers can upload pictures of an accident, follow a detailed accident checklist, connect with local agents, and call roadside

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assistance),” the research report noted. “Claims services on mobile should ultimately generate substantial ROI, but must be considered by insurers to be a ‘must-have’ rather than a ‘quick win’ since the development time is somewhat protracted (as well as the cost being high).”

There is little doubt that mobile technology, especially related to smartphones and apps, is growing in usage. In 2013, 83% of Canadian households had an active cell phone, up from 78% in 2010, according to Statistics Canada. StatsCan also noted that in 2013, 60% of households reported using a cell phone exclusively, up from 39% in 2010 and 26% in 2008.

Growing in Usage A recent report from comScore also shows a number of Canadian mobile stats. The annual report, called 2014 Canada Digital Future in Focus, reveals smartphone usage is up by 13% compared to 2013, now reaching three out of every four mobile users. The same report noted that

mobile subscribers grew by 5% in Canada year over year to more than 23 million.

In Canada, mobile data traffic will grow 900% from 2013 to 2018, a compound annual growth rate of 54%, according to Cisco.

Adjusters generally agree that mobile apps for insurance claims are only in the infancy of development when it comes to making a difference in customer experience.

The total number of apps users in 2014 is 18 million in Canada and 2 billion worldwide, expected to surpass 5 billion by 2019, according to a study by the Information and Communications Technology Council, The Appification Of Everything – Canada’s Apps

Economy Value Chain, 2014. Canada’s apps enterprises currently generate $1.7 billion in annual revenues. Annual revenues by 2019 are projected to be $5.2 billion.

“The insuring public in Canada has widely accepted the mobile device as a primary method of interaction, whether it be by email, voice, text or now via specific applications,” notes Jim Eso, senior vice president, property and casualty for Crawford and Company (Canada) Inc. “It is the application technology that is likely the best able to deliver the speed and security that insurers need to see to meet their goals.”

So while the mobile world is clearly set to expand, where exactly do insurance company claims apps fit in when it comes to usage and functionality?

“The success of mobile apps for claims has been moderate so far in Canada,” says Mukul Ahuja, senior manager at Monitor Deloitte. “The focus has been on basic features, such as FAQ, click-to-call, FNOL reporting and process updates. Most of these apps are currently disconnected apps

A catastrophic event

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that provide directions but not rich functionality.”

Infancy of Development Adjusters generally agree that mobile apps for insurance claims are only in the infancy of development when it comes to making a difference in customer experience.

“As much as there was hype about the launching of apps by (insurers), I would be very surprised if there was much uptake on those,” notes Fred Plant, president of Plant Hope Adjusters. “The image of someone standing beside their wrecked car calling up an application to start filling in forms might seem sexy in light of all the technical buzz in our lives right now; however, in reality, that person just wants to use that phone to call someone.”

“In some respects, it is smoke and mirrors with these apps in that they (insurers) are trying to plug into that younger demographic who are living on their phones,” says David Riddell, president, Canadian Claims Services. “But the question is really how

functional the apps are at this stage. I think it is still early days.”

According to an article in the June 2014 issue of Canadian Underwriter magazine (App for That by Greg Meckbach), in 2013, Deloitte Canada conducted a phone survey of Ontario

The integration of mobile technology to existing claims management systems, as opposed to serving as a mere standalone feature, has been a consistent challenge for insurance companies.

and Quebec residents who had purchased home and auto insurance, and asked them whether or not they had downloaded an app.

“Less than 2% of those surveyed had,” says Mark Patterson, senior manager at Deloitte Canada, as quot-

ed in the magazine. “When we asked the follow-up question, How many times have you used that app? Most of them said it was once. They downloaded it, they looked at it and never used it again,” Patterson adds.

For Plant, this relatively low rate of take-up shows that some of the hype around mobile claims technology belies the reality of the adjuster’s day-today job.

“Technology has created more immediately available information, in the form of pictures, video, text,” Plant says. “But I wouldn’t say it is better information or that it has changed what we do as adjusters. We have to be careful about how we document everything involved in a claim, the ‘five W’s’ of what happened. We have a saying here that: ‘email, and texting, are great ways to move information, but not necessarily the best means of communicating.’”

Several wrinkles have to be ironed out if claims apps and mobile technology in general are to become widely adopted and truly functional for clients and other parts of the claims

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process, according to sources. The three major issues are integration, functionality and a broader (or more “holistic”) view of the entire claims value chain.

Technology Integration The integration of mobile technology to existing claims management systems, as opposed to serving as a mere standalone feature, has been a consistent challenge for insurance companies.

“Challenges exist (in integration), yet there continue to be strides as a number of carriers are undergoing technology transformations today,” Ahuja notes. “As these reach completion, the required industry standards for mobility and connectivity will improve and be implemented consistently where integration and communication issues today will become less prevalent.”

Insurance company core systems are at least one contributing factor to the integration challenges of mobile claims technology, according to Riddell.

“Part of the problem insurance companies have is that they are dealing with legacy systems themselves,” says Riddell, who also notes he is aware of several insurers undergoing claims technology overhauls. “With acquisitions, some insurance companies find they are operating three 16 Claims Canada

p12-20 COVER STORY.indd 16

“Part of the problem insurance companies have is that they are dealing with legacy systems themselves,” says Riddell, who also notes he is aware of several insurers undergoing claims technology overhauls. separate systems. Until such time as insurers deal with their own technology issues, I can’t see something meaningful coming in terms of adjuster or other integration – they are just dealing with too many technology platforms right now.”

“There are integration challenges when Crawford is working for a large number of carriers with different claims platforms, security protocols and communication methods,” Eso notes. “But the future I think will include a breaking down of those barriers because of the focus on improving the customer experience.”

Degree of Functionality Another obstacle in the path of mobile technology take-up is the degree of functionality that apps or other tools can offer. Many of the existing mobile solutions for claims in

December/January 2015

Canada are limited by their degree of effectiveness in terms of improving cycle times and providing realtime customer self-service options.

However, other countries around the world are seeing more widespread adoption of mobile technology in insurance claims settings.

“There’s high potential for growth as indicated by global leading trends,” Ahuja points out. “We see interesting examples in the U.S. market (such as GEICO, USAA, esurance and State Farm) with multiple million downloads… The focus has been not only on providing immediate assistance and support, but effectively leveraging smartphone capabilities such as the GPS and camera, to offer capabilities such as video appraisal and image capture control, and access to ancillary services and partnership networks,” he notes.

Ahuja also observes that the quest for more functional, practical application in mobile claims technology will not stop there. “From a B2C perspective, there will be a shift from high touch to virtual touch (e.g., remote image capture, mobile video, proactive location-based advice) that balance customer’s desire for personal touch and interaction with convenience of service delivery and cost,” he says. www.claimscanada.ca

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One of the key questions is: Can that functionality extend to adjusters? Are adjusters an integral (or secondary) part of the business to consumer smartphone app integration?

Will there be more business-to-business apps that give adjusters hands-on functionality for reporting to insurance company partners?

Ahuja says that limited apps for claims adjusters are available in today’s market. “For example, it is possible to provide Guidewire claims

functionality on a tablet today, and tools exist that allow customers to act as the eyes of the adjuster,” he says.

Eso notes that while there are opportunities for adjusters and insurance company partners to work on common technology platforms, “mobile apps directed to consumers are in the short term more likely in the world of the insurer, rather than the independent adjuster.”

Crawford & Company’s work in this area has concentrated on effi-

ciency and avoiding duplication between multiple insurance company partners, according to Eso. “Our own development work in this area is moving toward a workflow solution that would allow our own applications to interact with the carriers claims platform or at a minimum send the information in a format that can be directly input to the insurers systems with minimal intervention,” he explains. “Elimination of double keying or having different parties requesting the same information again from the insured is a high priority.”

Eso cites the example of Crawford’s CMS Property Advantage, which provides field adjusters with tablets and wireless technology to remotely upload site visit reports and related documentation. “For our clients, the main impact on efficiency or cycle time when a CMS Property Advantage report is done is on the front end cycle time – getting coverage determination confirmed and repair work started more quickly means improved customer satisfaction and shorter repair time lines,” he says.

“In the last year we have refreshed our fleet of mobile tablet computers to our field adjusters and continue to review new technology solutions involving smartphones,” Eso adds. “In order to keep up with ever-changing technology and customer preferences, we are now actively pursuing smartphone solutions that will eventually make today’s tablet computers obsolete.”

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December/January 2015

Claims Value Chain Another shortfall of the current manifestations of mobile claims technology is the limited view of the claims value chain, according to some sources. Many of the necessary suppliers for insurance companies in auto repair or property restoration are not part of the app equation – at least yet. “(Mobile technology) is less prevalent in other areas such as restoration, auto repair, home inspection or appraisal services,” Ahuja says. “The opportunity exists to look at the claims ecosystem more holistically and bring together partners that can provide www.claimscanada.ca

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(In May 2014, FirstOnSite was one of the first property restoration services to launch a mobile app, called FirstOnSite SOS. Available for Android, Blackberry, and iPhone, the mobile app provides a direct connection between the company and its customers) “New mobile solutions that act as a portal for all of the vendors on the claim is coming as the next real advancement in mobile claims handling,” says Eso. “The use of smartphone technology that allows multiple parties in a claim to interact in real time will further drive improved

Mobile Investigations Another potential use of mobile technology is in the arena of claims investigations. While adjusters and claims investigators have widely tapped into social media to identify and check on suspicious claims, they have not been as diligent in accessing information from mobile devices. Given the increasing use of smartphones for everything from Instagram to Pinterest to Snapchat to Facebook, this could be a glaring oversight, according to at least one source.

“The bottom line: Social networking via mobile devices is on the rise,” notes author Pierre Khoury in a September 2014 article in the U.S.-

be augmented with searches based on a mobile device or a mobile operating system. Because the applications are based on location settings, GPS spoofing technology is required for accurate searches and investigations.”

Aside from potential investigative payoffs, mobile technology may be poised for bigger benefits in the entire claims management process, according to Ahuja. Some of these advantages have been documented to improve turnaround and reduce costs.

“When (mobile apps) are integrated with existing systems and offer rich functionality, our experience and Deloitte research indicates a reduction in cycle time by nearly 50% for non-complex claims,” Ahuja notes.

While adjusters and claims investigators have widely tapped into social media to identify and check on suspicious claims, they have not been as diligent in accessing information from mobile devices.

efficiency and customer experience.

We are now starting to see some take up at the insurers as they become more willing to try a very different approach to information gathering and sharing on a claim,” he adds.

Ahuja argues that this direction of collaboration and integrated platforms for all parts of the value chain is where the claims management process has to move in the years ahead.

“Future solutions will continue to focus on integrating multiple partners and streamlining the claims process to deliver transparency, speed and value,” he says. “From a B2B perspective, it’s about greater connectivity between preferred parties on a common, holistic application with real-time capabilities.”

20 Claims Canada

p12-20 COVER STORY.indd 20

based Claims Magazine, published

by PropertyCasualty360. “Investigators are not prepared for this shift and are missing information. If company investigators are not exploring these platforms, investing in the tools to conduct the investigations, and constantly tracking the shifts in technology, they may be neglecting a significant amount of investigative information.”

This change in the nature of online investigations requires a corresponding response from adjusters and investigators, according to Khoury.

“It is undeniable, the investigative shift is on,” he notes in the magazine.

“Investigators who don’t know the difference between iOS7 and Android 4.4 need to put on their reading glasses and start learning. Online searches need to

December/January 2015

While Riddell says it is still early on in the mobile claims technology evolution, “I would watch this space.

I think there is more to come; as we go along, the apps will get better and more sophisticated,” he notes.

How long that process of improvement will take on the mobile claims technology front is anyone’s guess.

“I think that in some ways B2B adoption tends to lag behind consumer adoption of new and innovative technology revolutions, so we may still be sending our reports and Excel spreadsheets off for inputting into claims systems for a while yet,” Eso concludes. “But the flow of information from a mobile device directly into the insurer systems will no doubt not be too far off.” 

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• spotlight S

All in the Family

Pippa

Georgian Claim Services Inc. has a unique commitment to quality that transcends the traditional employeremployee relationship.

BY CRAIG HARRIS

Georgian Claims Services’ Brian Polimeni, Anjelica Relic and Tristina Relic (seated)

A

family-run business has much more at stake than the standard corporate structure of bosses and anonymous co-workers.

It is not a 9 to 5 job, but instead both a way of life and a way to make a living. For Brian Polimeni and Anjelica Relic, the decision to start up Georgian Claim Services was one of the best they have ever made.

“It has worked out extremely well in terms of dynamics and working together,” Brian says of the firm, a partnership with his wife Anjelica and niece Tristina Relic. While they don’t focus on or advertise the family connection, they use it to their advantage to make their business successful.

“We don’t take the position that it is just ‘my claim’ or ‘your claim,’” Brian 22 Claims Canada

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notes. “It is the company’s claim and at the end of the day it is the customer’s claim. We don’t have any divisions of who is handling what. We do what needs to be done and when it needs to be done on a claim.”

In operation for seven years, Georgian Claim Services is a full service boutique adjusting company. Located one-hour north of Toronto in Barrie, they serve the surrounding area and travel across Ontario as far as Timmins, North Bay, Sudbury and Ottawa to handle claims.

The firm handles all types of claims, from accident benefits, liability, auto liability and property losses to detailed fatality investigations.

Starting at State Farm Insurance about 30 years ago, Brian remembers

December/January 2015

simply applying to an ad in the newspaper for an insurance adjuster position. “I told them I didn’t know what an adjuster was and they said ‘you’re hired,’” he recalls with a laugh. “If I had known, it might have been different perhaps.”

Brian says State Farm provided “some of the best training in the industry back then” sending him on multiple training courses on a range of subjects, including estimating, fire investigation and liability.

“I realize I was fortunate to have that kind of training, nobody does that today,” he points out. Brian continues his commitment to professional development and today he has an impressive set of certifications and designations, ranging from Chartered Insurance www.claimscanada.ca

14-12-11 10:30 AM

hat er-

www.claimscanada.ca

p22-23 SPOTLIGHT final.indd 23

justing and has since chosen adjusting as a career.” Tristina, a licensed adjuster, is working towards her CIP designation Both Brian and Anjelica understand the challenges of the profession today and the increasingly expansive “knowledge gap” facing the claims profession. “It takes many years to become a good adjuster, it is a complex business,” Brian observes. “I think today a lot of Insurers are not making an investment in education. They don’t have training programs, a victim of the many cost cutbacks over the years.

Having said that, we have over 50 years of combined experience, so we can offer that expertise to our clients and to Tristina.”

“

There are three of us who are adjusters, we are very much a team here; it is not and can never be just about any one person.

“

y

Professional (CIP) to Canadian Certified Fire Investigator (CCFI), Certified Fire and Explosion Investigator (CFEI) and Certified Fire Investigation Instructor (CFII).

After a ten-year stint at State Farm, Brian worked at two large national adjusting companies. By mid 2005, he and Anjelica were already considering going out on their own. “We decided we wanted to have more control over work and our lives,” he says.

Anjelica has more than 15 years of experience in the insurance industry, with a self employed background in worker’s compensation claims management. After deciding to switch careers from worker’s compensation claims to the insurance industry, she obtained her CIP in 18 months prior to becoming an adjuster.

Even with her CIP, she found it difficult to get into the industry. Although she received a great response to her resume, “insurers were all either ‘you are over qualified or (have) no experience handling claims,’” Angelica says. To get her foot in the door, she applied for a claims assistant position with Wawanesa Insurance and secured an accident benefit adjuster position.

Although her stay with the company was short, she credits Wawanesa with great training and insight into how claims should be handled.

After Wawanesa, she joined a national claims adjusting firm. “I remember having all of six months experience and was given a large volume of claims to handle. It was sink or swim.

I decided to swim,” she says.

Tristina joining Georgian Claim Services was not planned, say Anjelica and Brian. “She worked with us part time while at university and during that time ‘fell in love’ with Accident Benefit claims,” Anjelica says. “I remember I would ask her to respond to a submission on a claim and she would come into my office quoting a section of the SABS without the legislation in her hand…strictly from memory. We knew then and there we wanted her working with us, but it had to be her decision. It turned out she loved ad-

Georgian Claim Services’ success in the insurance industry is not a secret formula Anjelica says, but rather a simple matter of hard work and sacrifice. “On a continuous basis we give up nights and weekends to continue to learn and get the job done,” she says.

“There are three of us who are adjusters, we are very much a team here; it is not and can never be just about any one person.”

A steady stream of business tends to involve more intricate, complex claims that require knowledge and expertise. “We tend to do the larger more technical losses. We are not trying to compete with the national adjusting firms on a high-volume basis,” Brian says. “For us it is not a numbers game of ‘get them in, get them out.’

We tend to get bigger, more unusual claims or ones where Insurers need a thorough investigation and good claims handling.”

Over the years, Georgian Claim Services has handled a number of serious injury and fatality claims, some of which have involved vehicle accidents and municipal liability. “We do quite a bit of municipal work. We know many cities and towns are targets because of joint and several liability,” Brian points out. “They are often the only party that can pay and this results in fairly large exposures.”

Georgian Claim Services also provides special investigation services for fraud detection and prevention. “We are one of the few that has secured a criminal conviction for insurance fraud,” Brian says. “This does not happen very often because usually Insurers will not pursue it that far. They often deny an insurance claim and that’s it. I think the issue there is that there does not appear to be a downside to a person perpetrating insurance fraud. There’s no deterrent; they might as well try again next month with another insurance company,” he adds.

With a long career in the adjusting profession, Brian says he is well aware of the “cyclical” nature of the insurance industry. “Sometimes Insurers are pushing cutting expenses of adjusting, then the indemnity dollar goes up and then there is more money put to controlling indemnity,” he notes. “It is back and forth. We are fortunate in that we have not been affected by consolidation and market forces.”

The best solution to the sometimes random sway of market trends is an unwavering commitment to quality and service, according to Brian. “As a team, we are obsessed with quality and service,” he notes.

“Before something goes out, someone else will review the work to ensure quality. It is another opinion. It is another set of eyes, because we are handling multiple files and a second opinion adds tremendous value. Our business model is not for everyone, but it works very well for us and our clients.” 

December/January 2015

Claims Canada 23

14-12-11 10:30 AM

Diminished

VALUE

Recent court decisions reveal a changing landscape in Alberta on determining how much a vehicle involved in an accident is worth.

BY JOHN GILBERT AND SCOTT MATHESON

Approximately 11 months after Provincial Court Judge Skitsko provided his decision in the diminished value test case King et al v. Satchwell et al (2013 ABPC 358), the first appeal of a diminished value trial was heard in Alberta.

On November 13, 2014, Justice Crighton of the Alberta Court of Queen’s Bench, sitting in an appeal and cross-appeal from the Brown v.

Hermann et al (2014 ABPC 122) case rendered a decision. That decision, as explained below, must be viewed as a significant success for the defendant and for insurers defending other diminished value claims.

The History Diminished value claims are based on the notion that a vehicle that has been in an accident is not worth as much as a similar vehicle that has not been involved in an accident. This article focuses on the recent wave of diminished value trials in Alberta, particularly on the evidentiary bur24 Claims Canada

p24-26 FIELD LAW copy.indd 24

den plaintiff’s face in proving a claim for diminished value and the evidence that has recently been proffered at trial in support of diminished value claims.

In these recent decisions, the plaintiffs have provided reports by Mr. Ed Grieve in an effort to prove their claims. The first diminished value decision featuring Mr. Grieve that these authors are aware of was an unreported decision, Taylor v. Hrytsak (Action No. 1103600100). In Taylor, the Court accepted the evidence of Mr. Grieve and awarded diminished value.

Following Taylor, the next trial of the issues of diminished value came of the Satchwell test case. In Satchwell, Mr. Grieve’s qualifications and the standard for proving diminished value were put through the rigors of the common law. In his decision, Judge Skitsko found that Mr. Grieve was not an appropriate expert on diminished value, noting arbitrariness in his methodologies.

The court did apply Mr. Grieve’s methodologies in categorizing three types of diminished value: insurance, repair, and inherent. Judge Skitsko’s definition of each type was:

December/January 2015

1) Inherent: the value lost due to the “stigma” of having a vehicle involved in an accident; 2) Repair: the value lost due to the repairs not fully returning the vehicle to its pre-accident level; and 3) Insurance: the value lost due to the use of lesser parts during a repair.

After splitting (or “trifurcating”) diminished value into three heads, Judge Skitsko refused to award any amounts for insurance or inherent diminished value, but did award $3,500 for repair related diminished value on the stated bases of several factors, including the vehicle’s age, prestige, repaired damage (structural/cosmetic), reporting requirements and the quality of the repairs. This method of quantifying repair-related diminished value did not appear to be tied to Mr. Grieve’s report.

Following Satchwell, the Alberta Provincial Court saw at least five civil claims proceed to trial, with numerous others filed and presently awaiting trial. Three of the five post-Satchwell trials were presided over by Judge Skitsko, and in each of those three decisions, Judge Skitsko awarded repairrelated diminished value. Two of those decisions were subsequently appealed, www.claimscanada.ca

14-12-11 10:35 AM

with the Hermann decision being the only appeal heard to date. It was heard on November 13, 2014 and is discussed below.

In the two decisions not authored

by Judge Skitsko the respective judges rejected each plaintiff’s claims. In Purschke (Purschke v. Bell and Wawanesa, Action No. 1301500025), Judge Deck granted a non-suit application at the close of the Plaintiff’s evidence, In Gordon v. Elves (2014 ABPC 147), Judge Hess dismissed the plaintiff’s claim in its entirety at the close of all evidence.

Further, Judge Hess rejected the plaintiff’s proposition that the court quantify his damages by looking to other jurisprudence where diminished value was awarded. Essentially, the plaintiff asked for the court to quantify damages like it would for a claim for pain and suffering, but the court refused.

This left four decisions awarding repair related diminished value, two completely dismissing the plaintiffs’ claims, and none since Taylor award-

www.claimscanada.ca

p24-26 FIELD LAW copy.indd 25

ing what Judge Skitsko would consider inherent diminished value. The overarching theme developing between the cases was that “each claim for diminished value is unique and depends on its facts.” With this uncertainty as the backdrop, the Hermann appeal was heard.

The Appeal In Hermann, both the defendant and plaintiff appealed the trial decision of Judge Skitsko. Judge Skitsko found that Mr. Grieve was not an expert in diminished value, but that as the defendant’s expert could “not rule out structural damage to the C-pillar” of the vehicle that an award for repairrelated diminished value was appropriate.

The defendant appealed, among other things, on the grounds that Judge Skitsko erred in his application of the facts and burden of proof regarding the damage to the vehicle, and in assessing and quantifying damages to the plaintiff’s vehicle for repair-re-

lated diminished value. The plaintiff appealed on the grounds that Judge Skitsko erred by, among other things, failing to qualify Mr. Grieve as an expert, assessing evidence in a biased manner, failing to accept common sense and in failing to apply jurisprudence from other jurisdictions.

The defendant was largely successful with regards to arguments on diminished value. To start, Justice Crighton found that it was inappropriate to split (or trifurcate) diminished value into three heads of damage, and that it should be treated as one head, with the categories referred to being potentially useful in the quantification of that head of damage. Further, and of particular note, the court found that, as diminished value is a special damage, any damages claimed under that head must be “specifically claimed and strictly proven.”

As there was nothing inherently reliable in Mr. Grieve’s methodologies, Justice Crighton rejected the claim for

December/January 2015

Claims Canada 25

14-12-11 10:33 AM

repair-related diminished value (although she did award a small amount for repair fixes). In discussing the quantification of damages, the Justice noted that an analysis akin to general damages (where there is no clear pathway) should not be performed on special damages claims and should consider evidence with regards to the future use of the vehicle.

Moving Forward Hermann must be viewed as particularly valuable to defendants as it is a Superior Court decision and is binding on the Provincial Court – where the vast majority of these claims are being prosecuted. The decision leaves plaintiffs with the burden to prove their claim and rejects the argument that the Provincial Court can aid them in assessing a special damage, such as diminished value on the basis of common sense or gut instinct. The role of the court remains that of a gatekeeper of evidence and a trier of fact and law. The burden of proving a special damage claim and of quantifying that special damage claim remains with the plaintiff.

Besides the numerous Provincial Court matters currently pending, diminished value is slated to be heard

In discussing the quantification of damages, the Justice noted that an analysis akin to general damages (where there is no clear pathway) should not be performed on special damages claims and should consider evidence with regards to the future use of the vehicle. by the Court of Queen’s Bench again in 2015 on the Tardif case (Tardif v.

Bustos PC 1390303122). Until more

Provincial Court judges hear this matter, or until the Tardif appeal is heard, what will remain unclear is what evidence will be sufficient to properly prove a claim for diminished value in Alberta.

Moving forward, plaintiffs in Provincial Court must treat their claims as: (1) special damage claims subject to the burden to prove damages and quantify those damages, and (2) requiring appropriate expert evidence.

Whether plaintiffs are able to lead this evidence to the sufficiency required of the courts is a significant question that could have costs consequences.

Based on the decisions of Judges Skitsko, Deck, and Hess, as well as Justice Crighton, it appears unlikely that Mr. Grieve’s methodologies to date will be sufficient.  John Gilbert and Scott Matheson are associates with Field Law in Calgary and Edmonton, respectively. Both specialize in insurance litigation, with areas of focus including motor vehicle, property loss, personal injury, professional liability, fraud and bad faith claims.

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Lessons in Policy Language Ontario Court gives a plain and simple reading of the faulty workmanship exclusion.

BY MICHAEL TEITELBAUM

In Monk v. Farmers’ Mutual Insurance Co (2014 O.J. No. 3509), Ontario Superior Court Justice Koke summarily dismissed an action against the insurer, Farmers’ Mutual Insurance Co. (“Farmers’ Mutual”), and the broker, Muskoka Insurance Brokers Ltd. (“Muskoka Insurance”), by applying a plain and simple reading of the policy’s “faulty workmanship” exclusion.

The Facts The action arose when the insured, retained a contractor, Pleasantview Restoration Systems (“Pleasantview”), to perform some restoration work on her home, which was insured under a standard homeowner’s policy issued by Farmers’ Mutual and arranged by Muskoka Insurance. Pleasantview was retained to restore the exterior logs, board and structure of the house.

At the conclusion of the work, the insured discovered deficiencies in the work done by Pleasantview; namely, stains on the windows, light fixtures, and the carpeting, scratches and marks on the windows, damage to the wooden window frames, and the windows in the doors were sinking within the doors because of the deterioration of the silicone.

Ms. Monk allegedly went to Muskoka Insurance when she discovered this damage, and was informed that her policy did not cover work done by an independent contractor, and that the contractor hired would be responsible for the damage. Muskoka Insurance denied this.

Ms. Monk sued Farmers’ Mutual under her policy and Muskoka Insurance based on an alleged breach of Muskoka Insurance’s contractual and fiduciary duty to her by failing to advise her in a timely way that she had a valid claim against Farmers’ Mutual.

Farmers’ Mutual and Muskoka Insurance brought motions for summary judgment for a dismissal. The basis for the summary judgment motion by Farmers’ Mutual was that the insured’s claim constituted costs of repairing faulty workmanship caused 28 Claims Canada

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December/January 2015

by Pleasantview, which is specifically excluded by her policy. The issue to be determined was whether some or all of the property damage fell within the “faulty workmanship” exclusion and how that exclusion interacted with the “property excluded” exclusion in the insured’s policy.

Issues Before the Court The first issue before the court was the application of the “faulty workmanship” exclusion.

The “faulty workmanship” exclusion reads: “We do not insure … the cost of making good faulty material or workmanship.” The question before the court was what damages are included in the term “faulty workmanship?” The insured submitted that “faulty workmanship” extends only to work that was actually contracted by her to Pleasantview; the restoration of the exterior logs. The incidental, or corollary, damage from that workmanship, would not qualify as “faulty workmanship” under this exclusion.

The insured argued that a “faulty workmanship” exclusion is commonplace in standard homeowner’s policies; however, most policies further state that “resulting damage” is excepted. The insured submitted that other homeowners policies contained an exception in the “faulty workmanship” exclusion for any resulting damage.

The insured further argued that the “faulty workmanship” exclusion was developed in the context of the resulting damage exception, and therefore the resulting damage exception ought www.claimscanada.ca

14-12-11 10:38 AM

to be read into her policy. Her final argument for including an could not extend to resulting damage caused by faulty workexception for “resulting damage” in the “faulty workmanship” manship. He stated: exclusion was that it is plain and obvious to the persons reading “The terms of the faulty workmanship exclusion clause are the contract that the “faulty workmanship” exclusion should not clear and unambiguous; they exclude all damages resulting include “resulting damage.” from faulty workmanship and therefore they trump the excepFarmers’ Mutual and Muskoka Insurance argued that the tion for resulting damage in the property damage exclusion “faulty workmanship” exclusion is an unqualified exclusion, clause. Simply put an exception to an exclusion cannot overand does not contain an exception for “resulting damage.” Given ride the clear and unambiguous provision of another general this, they argued, there is no reason to read in or imply a “resultclause.” ing damage” exception. The Court agreed with their position.

Justice Koke reconciled these two provisions by explaining Justice Koke found that the damage in this case is that the policy concerns driving them are different. Damage oc“the exact type which, for policy reasons, should be curring to property while being worked on is not necessarily the excluded from [a] homeowners’ property insurresult of faulty workmanship as there can be other causes such ance.” Justice Koke referred to Insurance Law in as accidents. Therefore, that damage ought to be treated difCanada, which states: ferently than damage caused by faulty workmanship.

“This [faulty or improper workmanship or design] exclusion is intended to preclude coverage The Claim Against the Broker for the cost of repairing faulty work or design.

Ms. Monk alleged that in around April or May of It would be an inappropriate spreading of 2009, when she began noticing the deficiencies in the risk if the insured were able to recover Pleasantview’s work, she went to the offices of Mussuch a loss.” koka Insurance and made enquiries about making Justice Koke reasoned that if resulta claim. She alleged that Muskoka Insurance ing damage was covered it would mean informed her that she was unable to make a that contractors would theoretically be claim as the damage was caused by a conable to charge full price for the work, be tractor and would not be covered under careless and save themselves money, and the policy. then rely on the homeowner’s insurer to Muskoka Insurance denied such an pay for the cost of correcting the misinteraction took place. Ms. Monk alleged takes. that she returned two more times in orAdditionally, Justice Koke found that, der to inquire about making a claim and traditionally, courts have struggled with the issue of what constitutes “resulting was told each time that it would not be Justice Koke found that, damage,” leading insurers to remove this covered. Muskoka Insurance also denied traditionally, courts have exception and provide greater certainty as these interactions. It was not until Septo what is excluded in the policy. tember 2011, when the insured alleged a struggled with the issue Finally, with respect to this issue, Jusfourth visit to Muskoka Insurance, and of what constitutes tice Koke refused to accept Ms. Monk’s it claims this was the first visit from her, “resulting damage,” argument that omission of the “resulting that Monk received an email from Musdamage” exception was accidental as most leading insurers to remove koka Insurance informing her that she standard homeowners’ policies include it; may have a claim and that her policy could this exception and provide cover the damage. in His Honour’s view this omission was intentional. He agreed with Farmers’ Mutual Muskoka Insurance relied on an algreater certainty as to and Muskoka Insurance that the exclusion leged admission by Ms. Monk at her exwhat is excluded in of the “resulting damage” exception is inamination for discovery that she does not the policy. tentional by the insurer not to limit the have an enforceable claim against Musscope of the exclusion. koka Insurance if it is determined that His Honour then considered another there is no coverage under the policy. In issue raised by Ms. Monk, which was that the result, the action was also dismissed the “Property Excluded” clause in the policy did contain a “re- against Muskoka Insurance. sulting damage” exception.

The “Property Excluded” clause read: “We do not insure loss Comment In terms of policy coverage and interpretation, the decision or damage to: Property…(ii) while being worked on, where the damage re- in Monk reiterates the importance of the wording of each prosults from such process or work (but resulting damage to other vision of a policy. And it illustrates that insurers may wish to check the wording of their homeowners’ policies in respect of insured property is covered). “ The insured argued that her damages constituted damage “faulty workmanship” to see if they are providing the coverage to “property…while being worked on…” and that the “result- they wish to afford. The decision is currently under appeal.  ing damage” exception ought to extend coverage, in spite of the Michael S. Teitelbaum is a partner with Hughes Amys LLP. clear terms of the “faulty workmanship” exclusion.

Justice Koke disagreed and found that the “resulting dam- Hughes Amys is a member firm of The Arc Group of Canada, a age” exception found within the “Property Excluded” clause network of independent law firms across Canada. www.claimscanada.ca

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Claims Canada 29

14-12-11 10:38 AM

Is Anybody

Home?

A British Columbia court clarifies the scope of vacancy exclusion in the homeowner’s insurance policy.

BY LAURA A. WRIGHT

The British Columbia Court of Appeal in Coburn v. Family Insurance Solutions (B.C.J. No. 314, 2014 BCCA 73.) recently clarified the scope of a vacancy exclusion in a homeowner’s policy. The court concluded that a house with no one living in it for more than 30 days is vacant even where: the homeowner attends the property daily to conduct renovations; • the homeowner sleeps in the house for a night; • the homeowner has secured prospective tenants; and • the prospective tenants store personal possessions on the property.

In Coburn, the homeowners began extensive renovations to a house they had previously rented to long-term tenants whose lease had come to an end. While those renovations were underway, no one lived in the house. The previous tenants had already removed all their belongings, and they were not going to return. The homeowners stored a mattress in the garage, but they did not store any personal items, furnishings, or equipment in the home for their use.

The homeowners found new tenants who agreed to move in after the renovations were completed. Prior to the move-in date, those new tenants stored some of their belongings under a lean-to shelter outside the house, but not in the house.

One of the homeowners did most of the renovation work himself, which meant he was at the house almost daily— between 8 and 14 hours each day. After working those long days, he returned each night to his principal residence in another community, except once, when he slept on a mattress on the floor in the house he was renovating.

Before the new tenants moved in, the house was significantly damaged by a fire. The renovations had been in progress for approximately 80 days by that time. The insurer denied the homeowners coverage under their property policy, because the loss occurred while the house had been vacant for more than 30 days. The relevant exclusion in the policy provided as follows: This insurance does not cover loss or damage arising from […] any perils while the Dwelling Building is, to the knowledge of the Insured, Vacant, as defined, for more than thirty (30) consecutive days or in the Course of Construction.

The term vacant was defined in the policy as follows: The occupant(s) has/have moved out with no intent to return or the dwelling does not contain furnishings or household equipment sufficient to make it habitable.

However, the policy did not define the terms occupant, occupied, moves in, or contents.

The summary trial judge rejected the argument that the homeowner’s regular presence at the house, conducting renovations, meant that the property was not vacant.

30 Claims Canada

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December/January 2015

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The summary trial judge upheld the insurer’s denial. In During the month the vacancy permit was in effect, the coming to that conclusion, the summary trial judge reject- homeowners found their new tenants and reached a rental ed the argument that the homeowner’s regular presence at agreement with them. It was clear from the summary trial the house, conducting renovations, meant that the property evidence that the homeowners did not permit the tenants was not vacant. He also rejected the argument that the va- to move in or even store some of their possessions inside cancy ended when homeowners reached an agreement with the house at that time, because the renovations were not their new tenants, and those tenants moved some of their completed. personal belongings onto the property.

However, the homeowners told their broker that the The Court of Appeal agreed with the summary trial new tenants had moved into the house and arranged to judge. After reviewing a long line of authorities dealing with have the vacancy permit cancelled, saving themselves rental dwellings under renovation and approximately $45 per month in whether those dwellings were vacant premiums. In so doing, the hapless within the meaning of the relevant inhomeowners left themselves uninsurance contracts, the appellate panel sured for the very loss that the vafound that the homeowner’s almost cancy permit they cancelled—but daily presence in the house to conduct should have instead extended— extensive and protracted renovations would have covered. did not make him an occupant. Quite The Court of Appeal may have been simply, he did not live there; instead, tempted to look past the language of he lived in a different home in another the exclusion and to focus instead on community. the risk of loss actually assumed by the The Court of Appeal agreed to parties under the circumstances. The consider new evidence about the timcommercial reason for vacancy excluing of the homeowner’s overnight stay sions is the obvious elevated risk of loss at the house in relation to the fire and when premises are vacant. accepted that he slept overnight at In this case, one might have argued the house within 30 days of the date that the risk was not elevated at all, of loss. However, the Court of Appeal because the homeowner was physiruled that staying one night did not cally present at the house from 8 to 14 make the homeowner an occupant of hours per day, which is comparable to the house. It also rejected the arguthe amount of time that many typiment that the tenants had become occal homeowners spend in their own cupants of the house (and the house homes, when taking into account work had therefore ceased to be vacant) and other commitments outside the when they entered into a rental agreehome. Fortunately for insurers and Coburn serves as a ment with the homeowners or when others who depend upon consistent they moved some of their possessions interpretation of contractual language, useful precedent, onto the property. Like the homethe Court of Appeal did not succumb which should give owner, the tenants did not reside in to this temptation. confidence to insurers the house.

Coburn serves as a useful precAs a result, the Court of Appeal that the courts will interpret edent, which should give confidence agreed with the court below that the to insurers that the courts will inthe vacancy exclusion in vacancy exclusion applied and that the terpret the vacancy exclusion in homeowner’s policies in homeowners therefore did not have homeowner’s policies in a fashion coverage for their loss. Therefore, the according with the plain meaning of a fashion according with Court of Appeal dismissed their apthe words used in the insurance conthe plain meaning of the peal. tracts. It is also a reminder that, as Vacancy cases often feature poli- words used in the insurance always, insurers should ensure that cyholders who are unmindful of the their exclusion language is clear and contracts. vacancy exclusion in their insurance unambiguous.  contracts. Coburn is distinct from Laura A. Wright is Associate Counsel, Alexander Holthose cases because, in Coburn, the homeowners took the appropriate steps to arrange and pay for a vacancy permit burn Beaudin + Lang LLP, a member of Canadian Defence after renovations had been underway for a month (e.g., Lawyers (CDL). CDL is the only national organization when the house had been vacant for 30 days). Their policy representing the interests of civil defence lawyers. It offers was amended by the addition of a one-month vacancy per- broad opportunities to unite the defence bar over common mit, and the homeowners paid the additional premium for issues, as well as providing accredited continuing legal education. that extra coverage.

32 Claims Canada

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December/January 2015

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Trends in

Subrogation Subrogation has historically been the forgotten corner of a claims department – it shouldn’t be, one lawyer argues.

BY NEIL COLVILLE-REEVES

It is easy to see how files with good potential for subrogation are missed: a loss has been adjusted and paid out. The file can be closed. Pursuing subrogation means keeping the file open and making a further investment in expert fees, legal expenses and general overhead costs. Why throw good money after bad, except in the most certain of cases?

In some cases, the decision to pursue recovery through subrogation is easy. For example, subrogation opportunities are relatively straightforward when there is enough money at stake, when the facts surrounding liability are clear and when there is a collectible target.

It is the less certain cases that tend to be ignored; smaller losses where the facts are unclear and the possibility of recovery uncertain. These cases are often systemically neglected as insurers 34 Claims Canada

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consider that, on a cost-benefit analysis, it is a better business decision to close the file and move on. If subrogation is approached on a program basis, however, fewer opportunities will be missed.

Organizational Planning The decision to pursue a subrogated claim is multifactorial. Can liability be established? What is the cost of obtaining and preserving evidence? Is there a target that has the means to pay a judgment? What internal resources must be allocated to these efforts?

Once a claim is pursued for subrogation, a financial investment must be made. Most claims require experts to provide opinions on liability and lawyers to prosecute litigation. From a claims perspective, the investment decision is made throughout the life of the claim, from the moment of first notice of loss through to closure.

Most insurers recognize there are opportunities for recovery through

December/January 2015

prosecuting subrogated claims. They have some kind of process for first party claims handlers to identify where there is a subrogation opportunity.

However, the demands of managing a first party claim are many, leaving little time or opportunity to investigate targets, locate and preserve relevant and necessary evidence, obtain statements and prepare a file for subrogation. Each of these steps involves investment, be it the time and resources of the handling adjuster, the hiring of forensic professionals to investigate causation, or keeping up to date on developing, often complex, case law.

Some insurers recognize subrogation requires a front end investment in systems that allow subrogation professionals to coordinate their efforts with first party adjusters in the early stages of a claim. What follows is an approach that measures the success of a subrogation on a program basis – not on a fileby-file basis. In this paradigm, files are looked at not as individual cases, but www.claimscanada.ca

14-12-11 10:56 AM

rather as portfolios where some will be winners and some will be losers.

The objective: weed out the losers early on so resources are not wasted on cases where the chance of recovery is negligible. Then pursue the others aggressively, always maintaining flexibility to abandon subrogation if circumstances warrant.

Front Line Execution In a world that is increasingly specialized, working in subrogation requires a broad, generalized knowledge of an array of different types of losses.

An oil spill file might take up space on the shelf beside a commercial fire loss case or a flood claim resulting from water main break. Those three files alone necessitate a working knowledge of the Technical Standards and Safety Act and associated Regulations, sophisticated and often complex commercial leasing agreements, as well as technical construction-related issues and nuanced rules surrounding municipal liability. Add to that uninsured motorist claims, condominium losses and class actions stemming from mass tort and you are left with someone who, by necessity, is a jack of all trades and master of none.

Investigation Early investigation is a key to a successful subrogation effort. The challenge is to put resources in place to conduct a full investigation at the outset of a loss, before witnesses disappear and evidence is lost. First party adjusters who are managing the loss may not have the luxury of time to complete the necessary investigation. Therefore we are seeing, in limited cases, greater and earlier coordination between claims and subrogation adjusters.

This proactive approach to subrogation requires specialized investigation skills and knowledge. Who are the likely targets? What information is necessary to obtain? Are there witnesses who need to be interviewed and statements obtained? What evidence must be preserved? Who can ensure the evidence is adequately preserved?

We often see a mistaken belief that information received at an early stage of the claim and documented www.claimscanada.ca

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in the file is equivalent to admissible evidence in litigation. For instance, consider the following (fictionalized) adjusting note on a fire loss: “insured spoke with neighbour who indicates he saw tenant’s guest smoking on balcony and putting cigarette out on wooden deck and not into an ashtray.” This might lead to a conclusion that there was evidence of negligence.

That is not the case. This fictional note

is not admissible evidence, but rather inadmissible hearsay. The identity of the guest is unknown. The tenant is not committed to a story by way of a signed statement. Once a statement is obtained from the tenant that identifies the culpable party, it becomes evidence so long as the person providing the statement is available to give evidence at trial. But the culpable party still must be identified.

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Claims Canada 35

14-12-11 10:57 AM

In this same early timeframe for identifying subrogation opportunities, a decision must be made whether any identified target(s) should be put on notice. If this is a ‘checklist’ item for a first party adjuster, notice will often be given to ensure that box is checked.

This can be a tactical mistake. Once a target is put on notice, if there is an insurer responding, that insurer will open up a liability claim file and begin its investigation. The insurer is not hindered by the demands of adjusting the first party loss and, in many cases, it will nail down liability evidence to start building a defence to the claim.

Notice should be provided to other parties in circumstances where there is likelihood that evidence may be lost or compromised in a way that a target defendant would be able to argue spoliation.

Negotiating with Counter Parties Once the preliminary investigations are complete, information

The insurer is not hindered by the demands of adjusting the first party loss and, in many cases, it will nail down liability evidence to start building a defence to the claim. should be analysed against the backdrop of relevant case law, regulatory and legislative standards to consider next steps – putting the targets on

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December/January 2015

notice and entering into settlement discussions.

If a negotiation is managed properly, there is little downside to attempting to reach an early resolution prior to moving into the litigation phase.

However, a poorly managed negotiation can significantly impair a case.

Care should be taken to ensure that an offer to settle made at an early stage is not heavily discounted, given that it is unlikely that a negotiated resolution of a claim will ever exceed the lowest offer that has been made.

As lawyers with extensive subrogation experience, we often see first offers exchanged, with significant discounts offered on account of depreciation and liability contingencies. Similarly, we often find engineering reports being provided to the other side in the vain hope that this will persuade a counter party to make a reasonable offer to settle. The response is often no offer at all, but rather a bald denial of liability.

Where does that leave the insurer that has made the offer? It has incurred the expense of retaining an engineer, disclosed evidence to the other side and made a discounted opening offer. The insurer is essentially left with nothing in its negotiating position.

While there is nothing wrong with making an opening offer to the other side with some implied discount for early settlement , it is important not to give too much away at an early stage.

The counter party may be doing little more than ‘tire kicking.’

The resources required to design and implement an effective subrogation program are manageable for most insurers and independent adjusters.

Thoughtful design of work flows and training are essential. An investment is required to allow for, among other things, greater coordination between first party adjusters and dedicated subrogation professionals. Even smaller organizations can create these competencies and protocols, which should improve subrogation recoveries.  Neil Colville-Reeves is a partner at Samis + Company Barristers & Solicitors. Neil’s practice is focused exclusively on insurance related litigation.

www.claimscanada.ca

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CIAA REGIONAL PRESIDENTS 2014 – 2015 NEWFOUNDLAND & LABRADOR TBA

NOVA SCOTIA E. Grant King, BA, B.Ed., CIP Crawford & Company (Canada) Inc. 120 – 237 Brownlow Avenue Dartmouth, NS B3B 2C7 Phone: (902) 468-7787 Fax: (902) 468-5822 E-mail: Grant.King@crawco.ca

NEW BRUNSWICK & PRINCE EDWARD ISLAND Luc Aucoin, BBA, FCIP Plant Hope Adjusters Ltd. 85 Englehart Street Dieppe, NB E1A 8K2 Phone: (506) 853-8500 Fax: (506) 853-8501 E-mail: laucoin@planthope.com

QUEBEC/AESIQ

Denis Duchesne Cunningham Lindsey Canada Claims Services Ltd. 1250 rue Guy, bureau 1000 Montreal, QC H3H 2T4 Phone: (514) 938-5400 Fax: (514) 938-5445 E-mail: dduchesne@cl-na.com

ONTARIO Dorothy Lowry, FCIP Crawford & Company (Canada) Inc. 11 - 431 Bayview Drive Barrie, ON L4N 8Y2 Phone: (705) 728-5597 Fax: (705) 728-2167 E-mail: Dorothy.Lowry@crawco.ca

MANITOBA Craig Shanks, BA, CIP Network Adjusters Ltd. 64 Regent Cres.

Brandon, MB R7B 2W9 Phone: (204) 725-7436 Fax: (204) 725-7437 E-mail: craig.shanks@mymts.net

SASKATCHEWAN Cheryl Hanson Crawford & Company (Canada) Inc. 210 – 227 Primrose Drive Saskatoon, SK S7K 5E4 Phone: (306) 931-1999 Fax: (306) 931-2212 E-mail: Cheryl.Hanson@crawco.ca

WESTERN M. Doreen Lennon, CIP Townsend & Leedham Adjusters Ltd. 200, 4245 - 97 Street Edmonton, AB T6E 5Y7 Phone: (780) 463-7776 Fax: (780) 462-1280 E-mail: dlennon@tladjusters.com

PACIFIC TBA

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p37 CIAA NSC.indd 37

National Standing Committees 2014-2015 ADVISORY Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. 535 North River Road, Unit 3 Charlottetown, PE C1E 1J6 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca

Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com Jo-Ann Eccleston, CIP Aviva Canada Inc. 2206 Eglinton Ave. East Toronto, ON M1L 4S8 Phone: (416) 689-3328 Fax: 1-866-805-8585 E-mail: jo-ann_eccleston@avivacanada.com

CONSTITUTION & RULES John Jones, BA Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@cl-na.com

LICENSING J. Miles O. Barber, B.Comm. (Hons.), FCIP, CRM Network Adjusters Ltd. 67 Folkestone Blvd.

Winnipeg, MB R3P 0B4 Phone: (204) 897-5793 Fax: (204) 897-5797 E-mail: mbarber@mts.net

CONVENTION TBA

MEMBERSHIP & QUALIFICATIONS Georgiana Chen, CIP ProFormance Group Insurance Solutions Inc. 1101 Kingston Rd., Suite 280 Pickering, ON L1V 1B5 Phone: (877) 539-3111 Fax: (905) 554-3776 E-mail: gchen@proadjusting.ca

DESIGNATION Paul W. Greening, CLA, FCIAA Greening Aviation Claims Inc. 26C Palliser Park, Box 190 Riverhurst, SK S0H 3P0 Phone: (306) 353-2000 Fax: (306) 353-2200 E-mail: pgreening@sasktel.net

James B. Eso, CIP, CIOP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca

Bob Grouchy, BA, FCIP, CRM Allianz Global 1600 – 130 Adelaide Street West Toronto, ON M5H 3P5 Phone: (416) 915-4247 Fax: (416) 849-4555 E-mail: bob.grouchy@agr.allianz.ca

John Jones, BA Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@cl-na.com

Paul Hicks, FCIP, CRM TD Insurance 2161 Yonge Street, 4th Floor Toronto, ON M4S 3A6 Phone: (416) 486-2507 Fax: (416) 545-6022 E-mail: Paul.Hicks@tdinsurance.com

Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com

Justin MacGregor Highgate Insurance Brokers Inc. 151 Rose Glen Rd. Port Hope, ON L1A 3V6 Phone: (905) 885-1551 E-mail: justinmacgregor@highgateinsurance.com

CIAA NATIONAL INSURANCE INDUSTRY ADVISORY BOARD Patti M. Kernaghan, FCIP, CRM Kernaghan Adjusters Limited 300 - 1575 West Georgia Street Vancouver, BC V6G 2V3 Phone: 1-800-387-5677 Fax: 1-800-387-5644 E-mail: pkernaghan@kernaghan.com

Mark Stewardson, FCIP Royal & Sun Alliance 2225 Erin Mills Parkway, Suite 1000 Mississauga, ON L5K 2S9 Phone: (905) 403-2333 Fax: (905) 403-2326 E-mail: Mark.Stewardson@rsagroup.ca

EDITORIAL Mary Charman, CIP Crawford & Company (Canada) Inc. 1 – 120 Mulock Dr. Newmarket, ON L3Y 7C5 Phone: (905) 898-0008 Fax: (905) 898-1705 E-mail: Mary.Charman@crawco.ca

Mark Weir Intact Financial Corporation 700 University Avenue, 13th Floor Toronto, ON M5G 0A1 Phone: (416) 341-1464 Fax: (416) 217-0562 E-mail: mark.weir@intact.net

John M. Sharoun, FCIP, FCIAA, CRM Crawford & Company (Canada) Inc. 300 – 123 Front Street West Toronto, ON M5J 2M2 Phone: (416) 867-1188 Fax: (416) 867-1925 E-mail: John.Sharoun@crawco.ca

Alex Walker, CIP Royal & Sun Alliance 2225 Erin Mills Parkway, Suite 1000 Mississauga, ON L5K 2S9 Phone: (905) 412-1397 Fax: (905) 403-2328 E-mail: Alex.Walker@rsagroup.ca

EDUCATION Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. 535 North River Road, Unit 3 Charlottetown, PE C1E 1J6 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca

Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. 535 North River Road, Unit 3 Charlottetown, PE C1E 1J6 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca Patricia M. Battle Canadian Independent Adjusters’ Association/L’Association Canadienne des Experts Indépendants Centennial Centre, 5401 Eglinton Ave. West, Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Toll Free: 1-877-255-5589 Fax: (416) 621-7776 E-mail: pbattle@ciaa-adjusters.ca

CAREER RECRUITMENT PLANNING Richard Swierczynski, BA, CIP AZ Claims Services Inc. 1500 Upper Middle Rd., Unit #3, P.O. Box 76041 Oakville, ON L6M 3G3 Phone: (905) 825-0027 Fax: (905) 825-5543 E-mail: richard@azclaims.ca COMMUNICATIONS Richard Swierczynski, BA, CIP AZ Claims Services Inc. 1500 Upper Middle Rd., Unit #3, P.O. Box 76041 Oakville, ON L6M 3G3 Phone: (905) 825-0027 Fax: (905) 825-5543 E-mail: richard@azclaims.ca

James B. Eso, CIP, CIOP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca

John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca

John Jones, BA Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@cl-na.com

Fred R. Plant, AIIC Plant Hope Adjusters Ltd. 85 Englehart Street Dieppe, NB E1A 8K2 Phone: (506) 853-8500 Fax: (506) 853-8501 E-mail: fplant@planthope.com

E. Brian Gough, FCIP, CLA, FCIAA Marsh Adjustment Limited 1550 Bedford Highway, Suite 711 Bedford, NS B4A 1E6 Phone: (902) 469-3537 Fax: (902) 469-2396 E-mail: ebgough@marshadj.com Robert V. Pearson, CLA, FCIAA CIAA Honorary Life Member c/o CIAA National Office 5401 Eglinton Ave. W., Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Fax: (416) 621-7776 E-mail: info@ciaa-adjusters.ca

EMERGENCY MEASURES Richard Van Horne Action Investigations Inc. 2 Catelina Court Dartmouth, NS B2X 3G9 Phone: (902) 462-1222 Fax: (902) 462-3688 E-mail: richardvanhorne@actioninvestigations.ca FINANCE John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca

NOMINATING John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com James B. Eso, CIP, CIOP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com PRIVACY James B. Eso, CIP, CIOP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca Keith P. Edwards, FCILA, CLA, FUEDI-ELAE CIAA Honorary Life Member c/o CIAA National Office 5401 Eglinton Ave. W., Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Fax: (416) 621-7776 E-mail: info@ciaa-adjusters.ca PROFESSIONAL PRACTICES John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca

Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com IBC: LIAISON, LEGISLATIVE & FORMS Paul Hancock, B.Sc., CIP Crawford & Company (Canada) Inc. 300 – 123 Front Street West Toronto, ON M5J 2M2 Phone: (416) 867-1188 Fax: (416) 867-1925 \ E-mail: Paul.Hancock@crawco.ca

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Liquor Liability

Some key concepts every adjuster and claims examiner should know when confronted with alcohol-related claims.

BY LORNE FOLICK & JESSICA HANBIDGE

Alcohol consumption increases the risk of injury, generating claims that continue to challenge commercial hosts and claims professionals alike. There are some key trends and key legal concepts in this rapidly evolving area of insurance and risk.

Five key concepts include the condition of the commercial host’s premises; patrons’ conduct; the activities conducted on the premises; the conduct of patrons after leaving the premises; and the use of force by the host’s staff.

Conditions of the Premises The owner of a commercial licensed establishment is an occupier of the premises, and is subject to the duty imposed on all occupiers to keep their premises reason-

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ably safe. Commercial host occupiers are in a unique situation because they invite people to enter their premises and consume an intoxicating substance.

As a result, commercial liquor hosts are often held to a higher standard of care to ensure their patrons’ safety while on their premises. The case law suggests a licensed establishment should take special precautions to safeguard intoxicated persons if it is foreseeable they will be present (Niblock v. PNE, 1981, 30 B.C.L.R. 20).

However, the courts accept that people who drink do not always take care of their own safety. The fact that alcohol is consumed on the premises is a factor the court considers in determining whether the premises were reasonably safe for all who may enter (MacDonald v. Hi-Lo Ltd, 1985, 63 N.B. R.).

Additionally, the courts have found that evidence of occupiers who modify their premises after an accident in attempt to avoid further accidents is relevant, and admissible, but not in itself proof of negli-

December/January 2015

gence. (Cominco Ltd. v. Westinghouse, 1979, 11 B.C.L.R. 142).

Claims examiners investigating such claims should pay particular attention to environmental conditions that existed when the injury occurred, such as lighting, handrails and stairwells. Specifically, any changes in elevation should be properly demarcated to patrons who may have been consuming alcohol.

Conduct of Patrons The B.C. Occupiers’ Liability Act imposes a duty of care on the occupier in relation to the conduct of third parties (see Section 3(2)(c)). For example, a licensed establishment can be held liable for a third party’s conduct when an intoxicated patron injures another patron.

The key issue in this context is whether the commercial host could reasonably have foreseen that the offending patron posed a foreseeable risk of harm to other patrons.

Foreseeability in this context requires an analysis as to whether the establishment’s

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employees were aware, before the injury occurred, that the patron had a propensity for violence. If an employee becomes aware of a propensity on the part of a patron to be violent and yet fails to intervene before the patron injures another patron, the licensed premises may be found liable for failing to ensure the premises were “reasonably safe” (Stanton v. Twack Unreported, May 10, 1982, B.C.S.C.).

From an investigative standpoint, you should secure any surveillance video that may have captured the events leading up to and including the altercation. Secure all historical logbooks to identify whether the establishment had previously barred the patrons involved in the fight because of altercations with other patrons or other misbehaviour. The evidence of all of the staff on duty and any independent witnesses is key information required to defend such claims.

prohibiting over-service – it may impose liability in the event that a person is served past the point of intoxication and dies, is injured, or harms someone else or their property.

Commercial hosts also owe a common law duty to protect their intoxicated patrons (Jordan House v. Menow and Honsberger, 1973, 38 D.L.R., 105 S.C.C.) and to protect others who might be injured by an intoxicated patron who has been ejected from the licensed premises (Murphy v.

Little Memphis Cabaret, 1996, O.J. No. 4600). Liability in tort requires that a) the risk of injury or damage be foreseeable to the defendant and b) a causal connection be shown between the negligence of the defendant and the injury or damage to the plaintiff.

An all-too-common example is impaired driving: a reasonably prudent establishment must take reasonable steps to prevent an impaired patron from driving.

The key to avoiding liability is to train staff

Activities Conducted on the Premises The failure to actively intervene and take measures to prevent a dangerous activity by intoxicated patrons can serve as breach of the duty of care to other patrons (Jacobsen v. Kinsmen Club of Nanaimo. 1976, 71 D.L.R.). A commercial host may also have a positive duty to prevent an intoxicated patron from participating in activities that are dangerous given the patron’s intoxicated state (Crocker v.

Sundance Northwest Resorts Ltd, 1989, 51 D.L.R. (4th) 321).

As a claims investigator or examiner, you will want to assess whether an activity was indeed one that was particularly “risky” when combined with alcohol. The existence of a waiver signed by the participant is particularly important in this context.

Conduct of Patrons After Leaving the Premises In B.C., the Liquor Licensing and Control Act requires commercial hosts to refuse to serve alcohol to intoxicated patrons. The breach of a statutory provision, without more, does not ordinarily give rise to liability. There must be a foreseeable risk of harm to the patron or to the third parties before a duty will be imposed upon the liquor provider and the mere fact of overconsumption does not give rise to such a risk. (Stewart v. Pettie, 1995, S.C.R. 131; Dickerson v. 1610396 Ontario Inc., 2010, ONCA 894).

However, Section 39 of the Ontario Liquor Licence Act goes beyond merely www.claimscanada.ca

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to inquire as to how a patron may be getting home to ensure that patrons do not injure themselves and others once they leave the premises (Feaver Estate v. Briggs, 2009, NBQB No. 371).

Claims involving over-service of alcohol require the claims investigator to secure all information relating to the plaintiff ’s and defendant’s consumption. Sales records, receipts, and credit or debit card information can be crucial in determining which patrons consumed how much

of a certain type of alcohol. The following documentation should also be preserved: surveillance relating to the purchase and consumption of alcohol; log books or incident books that address whether a patron was “cut off ” service; and evidence that suggests an alternative safe ride was suggested or provided.

Use of Force by Staff The most common liquor liability situation arises when a staff member asks a se-

Claims Canada Magazine is the only national claims publication COVERING the Canadian market

curity doorman to remove an intoxicated patron. The patron refuses to leave, and the doorman forcibly removes the patron, sometimes using more force than is reasonably necessary for the purpose.

Most provinces have now adopted mandatory security licence requirements for doormen. You will want to secure all of the government-issued security certificates for the staff on duty at the time of the incident. If the police were called, it is important to secure any evidence the police may have as to other witnesses and determine whether there are any charges against the patron who was ejected and/or the security door staff (McLean v. Knox, 2013, ONCA 357).

A key issue for liability insurers when confronted with a civil suit arising from injuries sustained from a forcible ejection is whether coverage extends to the employee who allegedly inflicted the harm. The test applied by the courts to determine whether the employee was acting within the scope of his employment is whether the conduct complained of was “closely and directly connected with the authorized duties of the employee” (Miller v. Lougheed Ventures Ltd. 1989, Unreported, New Westminster Registry No. C880723).

The courts are extremely reluctant to relieve an employer from liability for the conduct of its employees. However, if one can establish that the assault was not closely connected with the employee’s duties, a bar owner can be relieved of liability (Brezinski v. Shultz, 1975, 3 W.W.R. 467, Sask. Q.B.).

Conclusion

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www.claimscanada.ca 40 Claims Canada

December/January 2015

Loss adjusters need to carefully consider whether liquor providers have established written policies to address specific fact situations. Only those commercial liquor providers who implement and enforce specific guidelines, and train staff accordingly, will be able to avoid the broadening scope of liquor liability. At the investigative and examining stage, the investigative information secured at the outset of the claim will better allow you to manage your risk in the context of any ensuing litigation.  Lorne Folick, a founding partner at Dolden Wallace Folick LLP, has a practice dedicated exclusively to insurance defence litigation. He has a wide range of experience and is particularly well-regarded in the fields of liquor liability and complex personal injury claims. Jessica Hanbidge, a lawyer with Dolden Wallace Folick LLP, focuses on a wide variety of insurance defence litigation. www.claimscanada.ca

Official Journal of the Canadian Indeépendent Adjusters’ Association

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14-12-11 11:05 AM

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EF

• education forum

A SERIES OF ARTICLES PROVIDED BY THE INSURANCE INSTITUTE OF CANADA

Condo

Coverage

Parsing the Property Policy

C

ondo insurance is not a new product, but its usage is increasing.

According to the National Household Survey from Statistics Canada, one in eight households were living in condos by 2011. Condo dwellers don’t always fully understand the claims and coverage issues they may face, and adjusters may find themselves needing to explain some nuances.

Condo owners often misunderstand the boundaries between their own policy coverage on their specific unit and the condo corporation’s policy coverage.

This is particularly true in cases where the condo owner’s actions cause damage.

When handling a claim from a condo unit owner, an adjuster may discover that the owner is actually under-insured in one or more coverage categories.

Basic concepts Condominiums are developments where there is individual ownership of units (or strata units in some provinces) and group ownership of common property (the lobby, elevators, parking garage, etc.) through a condominium corporation. Condo corporations are governed by a board of directors made up of unit owners. Most condo boards contract out the day-to-day running of the corporation to a property management company.

Condominium corporations are required to carry insurance on the common property elements – basically commercial property and casualty policies. Condo unit owners pay for the condo corporation’s costs (including the costs of insurance) through maintenance fees.

Individual unit owners can also take out personal insurance to cover speci42 Claims Canada

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fied losses they incur as a result of owning their unit, as well as liability coverage in case they are sued for damage they cause.

This article focuses on condo owners’ property coverage. For the purposes of the article, “condo owner” includes any condo dweller, regardless of whether they own or rent the unit. “Condo insurance” refers to insurance on an individual condo (or strata) unit. “Condo corporation insurance” refers to insurance taken out by the condominium corporation.

Coverage categories To determine whether a condo owner has coverage for a particular claim, an adjuster needs to consider both the unit owner’s coverage and the condo corporation’s coverage.

A typical condo owner’s policy should provide several types of property coverage: • personal property • additional living expenses • improvement and betterment protection • loss assessment protection • unit additional protection Personal property: As with any property policy, the condo owner’s coverage should reflect the value of the personal property and may be based either on the replacement cost or on the cost less depreciation. There may be sub-limits for particular items, and condo owners don’t always understand how they work. For example, if the policy limits claims for bikes to $1,000 per bike and the condo owner’s $5,000 racing bike is stolen, the owner may be surprised to discover that the in-

December/January 2015

surer will pay out only $1,000 (or less if there’s a deductible).

Another example is a sub-limit on works of art and antiques, which may be a specific percentage of the total coverage for personal property or a per-item amount, whichever is lower. It’s not unusual for the specified percentage to work out to quite a lot less than the per-item amount.

Additional living expenses: A condo unit may be unfit for occupancy after a loss, and the owner may need to move out during repairs. If the unit owner’s insurance coverage includes additional living expenses, this will cover costs like rent

Doubled up on different strokes For some losses, both the condo corporation’s insurance and the condo owner’s insurance will need to respond. If the condo owner has coverage from the same carrier that the condo corporation uses, this can smooth the claims settlement and coordination process.

On the other hand, some carriers may prefer not to cover unit owners if they’re already providing the condo corporation’s policy – a carrier may prefer to avoid possible aggregation issues by limiting the number of risks they will cover in the same building.

Savvy condo owners may also choose a different carrier in order to obtain the policy limits and endorsements that best meet their specific needs.

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and utilities that the owner incurs during the repair period. But the extent of the coverage for additional living expenses varies widely. Although some policies provide unlimited additional living expenses, many policies limit this coverage to a fixed percent of the personal property coverage. In areas where rents are high and vacancy rates are low, some owners may find themselves under-insured in this category.

Improvement and betterment protection: This coverage provides for replacement of improvements the unit owner made to things like kitchen cabinetry, flooring, and fixtures. Many condo owners fail to realize that if a loss is covered by the condo corporation’s insurance, that policy will normally cover only the costs of bringing the unit back up to the specifications of the standard unit.

The standard unit is defined by reference either to the condo corporation’s declaration, to its by-laws, or to governing provincial law. Many condo corporations have adopted by-laws that define a standard unit as a fairly bare-bones shell that includes only things like the pipes, wires, cables, ducts and mechanical apparatus (such as heating and air-conditioning installations). Others go further and include some finishes, such as basic carpeting, closet shelving, and kitchen cabinets installed by the builder.

Any betterments or improvements beyond the basic finishes – for example, tile or wood flooring, granite or other custom counters, blinds, lighting fixtures, etc. – typically are not included in the definition of a standard unit. So, if a condo owner does not have their own coverage for any changes and improvements made to their unit, they can end up out of pocket for the additional costs to repair or restore these features.

Loss assessment protection: This coverage protects a unit owner if the owner faces an assessment levied by the condo corporation – for example, if the corporation issues a special assessment to all owners to cover a loss to the common areas, or if the corporation issues an assessment to the individual owner following a loss the owner caused. Special assessments are becoming more common in some areas as buildings age or construction defects lead to expensive repairs.

Loss assessment coverage typically also includes coverage, up to a sub-limit, of the amount of deductible the corporation paid under its policy following a loss www.claimscanada.ca

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caused by the condo owner. This coverage is sometimes informally referred to as “chargeback of deductible.” Here, too, an adjuster may discover that the condo owner has less coverage than he or she thought. Some condo corporations have

If a condo owner does not have their own coverage for any changes and improvements made to their unit, they can end up out of pocket for the additional costs to repair or restore these features. opted for very high deductibles that may exceed a unit owner’s loss assessment coverage. Unit owners may not realize that they need to check the corporation’s in-

surance certificate every year to verify the current deductible.

Unit additional protection: This coverage responds if the unit owner suffers a loss and the condo corporation doesn’t have insurance, or if the corporation’s insurance is inadequate or ineffective. This coverage may become more significant in future as condo corporations continue to look for ways to reduce their insurance costs. A large loss that severely damages many units plus building infrastructure might exceed a corporation’s scaled-back coverage, leaving condo unit owners on the hook unless they have this coverage.

In the next issue of Claims Canada, we’ll look at two scenarios in which an adjuster might need to deliver difficult news to a condo owner making a property claim.  This article is based on excerpts from ADVANTAGE Monthly, a series of topical papers on emerging trends and issues provided to members of the Chartered Insurance Professionals’ (CIP) Society. The CIP Society is the professional organization representing more than 15,000 graduates of the Insurance Institute’s Fellow Chartered Insurance Professional (FCIP) and Chartered Insurance Professional (CIP) programs.

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• on the scene OTS

Doug Stewart

Angela Veri

Jason MacLellan

Bruce Olie

Pat Van Bakel, president and chief executive officer, Crawford & Company (Canada), Inc., recently announced the appointment of Angela Veri to the position of vice president, national account executive. Reporting to Gary Gardner, senior vice president, Global Client & Business Development, Veri will work with Crawford’s sales team on product development and strengthening customer relations. l Giffin Koerth Forensic Engineering is pleased to announce the appointment of Pierre Maheux, MSc, FGAC, PGeo, to the role of Principal, Environmental. l

Pierre Maheux Arcon Forensic Engineers is pleased to announce that Jillian Leblanc has joined its Collision Reconstruction practice, working alongside Dr. Alan Morris and expert Alan Billing. Jillian has experience with a wide range of collision scenarios and a specialization in those where fraud is suspected. l Jillian Leblanc Itech, a subsdiary of STRONE, is pleased to announce the appointment of Dean Gough as President.

As President, Dean assumes responsibility for all daily operations with a focus on growth of regional branches. l

Dean Gough 44 Claims Canada

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December/January 2015

Plant Hope Adjusters has recently established two additional offices in Nova Scotia, bringing its total Maritime Province presence to 42 adjusters operating from 11 offices. The new offices are located in Antigonish, with Doug Stewart, CIP, and Jason MacLellan covering Eastern Nova Scotia and Cape Breton Island; and The Annapolis Valley, where Bruce Olie, FCIP, will cover the western and southern areas of the province. Under the leadership of Mike Connolly, Plant Hope opened its first Nova Scotia office in Halifax in March of 2013 and has now grown to fourteen employees in three offices. l Crawford & Company and CSL Group have agreed to “network” their global marine capabilities to offer a more comprehensive and flexible range of specialist marine services to their markets. Among other countries, the new relationship will strengthen Crawford’s ability to handle marine claims in North America, according to a statement from the firm issued October 10. “Our relationship with CSL Group will allow us to selectively share marine resources and combine the network strengths of both Crawford and CSL,” said Rob Hawes, head of marine at Crawford. l WINMAR Franchise Corp recently welcomed Sean Hobson to its team. Sean will fill the role of VP National Programs will oversee continued growth of the WINMAR network for the insurance and restoration industry. l Anthony Tuson has shifted positions at On Side Restoration Services Ltd. from National Account Manager to become the organization’s Director of Business Development. l SPECS Limited, a provider of independent property damage and consulting services is pleased to announce a new office location in London, Ontario under the leadership of Graham Cochrane. In other company news, SPECS Limited also announced that Wesley Taylor has joined SPECS as an Appraiser in the Vaughan, Ontario office. l The Insurance Bureau of Canada (IBC) and the Association du camionnage du Québec (ACQ) have partnered on a cargo theft reporting program, aimed at tackling what the groups say is a crime that costs Canadians $5 billion per year. The Programme provincial de déclaration de vol de cargaison launched in Quebec by IBC and ACQ, and in collaboration with the Service du renseignement criminel du Québec (SRCQ) and Quebec’s two police services, the Sûreté du Québec (SQ) and the Service de police de la ville de Montréal (SPVM).

Insurers and ACQ members can now report cargo theft confidentially directly to IBC via an online submission form, which is also accessible on the ACQ web site. l ACE Group announced in November a new option for ACE Privacy Protection policyholders in Canada. The new Data Breach Fund Sidecar Endorsement provides a single data breach fund limit, one that falls outside the policy’s liability limits for all data breach expenses. l www.claimscanada.ca

14-12-11 11:14 AM

Ontario motorists face stiffer fines and penalties for texting while driving under legislation the Liberal government re-introduced October 21. The previous bill to increase the maximum fine for distracted driving to $1,000 and impose three demerit points died when the June 12 election was called. Transportation Minister Steven Del Duca reintroduced the bill to help people break the habit of texting or talking on a hand-held phone while behind the wheel. l ENCON Group Inc., a managing general agent in Canada specializing in professional liability and construction insurance, is pleased to announce that, effective immediately, it will offer excess errors and omissions (E&O) insurance on a follow-form basis with limits of up to $10 million for all classes of business. l Allied World North America has launched privacy and network security insurance specifically designed for small to mid-size companies in the Canadian market, the company announced in November. “Privacy//101” is intended for small and medium-sized enterprises – such as law firms, healthcare facilities and other organizations – that experience a data breach involving lost or stolen private information, whether paper or electronic, notes a statement from Allied World, a global provider of property, casualty and specialty insurance and reinsurance solutions. l

The owner and operator of a Toronto towing firm is facing several fraud-related charges after an investigation was prompted by Aviva Canada. Jainauth Sounauth, 53, of Kam’s Towing & Recovery has been charged with False Pretence, Forgery, Uttering a Forged Document and Fraud Under $5,000. He is scheduled to make his first court appearance in Toronto on Dec. 19, according to Aviva. The charges relate to a collision in Toronto on June 17, involving a dump truck registered to a commercial client of Aviva and two other vehicles. The Ontario Provincial Police attended the scene and directed the drivers to a nearby Collision Reporting Centre, Aviva noted. l Four in 10 surveyed insurance and reinsurance executives ranked cyber attacks as the most threatening emerging risk to the industry in 2015, note findings of new survey released Nov. 12 by Guy Carpenter & Company LLC. Respondents for the company’s third annual survey – 111 insurance and reinsurance professionals were polled at the 2014 PCI Annual Meeting in late October – were asked to identify what they believe are the key drivers and threats to profitable growth in the industry for the year ahead. Overall, the top three most threatening emerging risks ranked by respondents were cyber attacks (40%), terrorism (31%) and climate change (29%), according to a statement from Guy Carpenter, a global provider of risk and reinsurance intermediary services. l

Calgary-based brokerage Godfrey-Morrow Insurance has launched InsureMy, a new brokerage and website focused particularly on auto insurance telematics products in Ontario and Alberta. InsureMy is currently set up to offer Intact’s telematics program to Ontario auto insurance customers. It is also in talks with the Independent Broker Resources Inc. (IBRI), the for-profit arm of the Insurance Brokers Association of Ontario (IBAO), to offer its Ingenie usage-based insurance product. l Only a small percentage of homeowners and tenants in Alberta and British Columbia cite water damage as a top concern, according to a new survey from Canadian Direct Insurance. Based on consumer polling, only 23% of Alberta homeowners and tenants and only 17% of B.C. residents consider water damage a major concern. In Alberta, 66% said they engage in gutter cleaning to protect from water damage, with a response of just under 75% in B.C. for the same task. Sixty-three per cent of Albertans also said they do a roof inspection, just under 69% in British Columbia. l

Claims Canada Wants You! Claims Canada magazine wants you to send us your company news, appointments and event photos for possible inclusion within our ‘On the Scene’ department.

Please help us share your items with the claims industry across the country. For more information, please email: craig@editinsight.com

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December/January 2015

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• on the scene OTS A 73-year-old Toronto man is facing multiple charges after police say fake auto insurance cards were sold, resulting in insurance claim payouts worth more than $1 million.

It is alleged that the suspect was selling counterfeit insurance cards known as “pink slips.’’ Police say several accident claims have been filed by victims who believed they were insured, and insurance companies have also paid out more than $1 million. Alexandr Chertin is charged with two counts of defrauding the public over $5,000, two counts of fraud over $5,000 and two counts of uttering a forged document. l The belief that all-season tires are “good enough” is likely behind only 51% of Canadian drivers using winter tires, outside of Quebec where they are mandated, according to a new survey from the Tire and Rubber Association of Canada (TRAC). The poll of about 1,000 Canadians asked whether drivers had used the specialized tires this past winter. Outside of Quebec, usage was highest in Atlantic Canada at 73%, followed by 56% in Ontario and 45% in Alberta. In Manitoba and Saskatchewan, 39% of drivers used winter tires, followed by British Columbia at 38%. Among those Canadians not using winter tires, 63% said they thought all-season tires were good enough for winter driving. l The New Brunswick government announced in mid-November financial help for those affected by the estimated $12.6 million worth of damage caused by post-tropical storm Arthur. Arthur blew through the province July 5 bringing rain and heavy winds that caused widespread flooding and prolonged power outages. Public Safety Minister Stephen Horsman says homeowners and businesses will have until Feb. 20 to apply for government assistance. l Communities large and small across Canada are taking action to reduce the risk of basement flooding and damage to property from sewer back-up, the Institute for Catastrophic Loss Reduction (ICLR) noted in a November statement announcing the availability of a new book. The publication, Cities adapt to extreme rainfall: Celebrating local leadership, describes 20 of the many successful local projects under way or already completed in communities adapting to better address the risks associated with extreme rainfall. Of the 20 communities profiled, eight are in Ontario, four are in British Columbia, two apiece are in Alberta and Quebec, and one apiece are in Saskatchewan, Manitoba, New Brunswick and Nova Scotia. l One of Canada’s leading weather watchers has bad news for anyone hoping to avoid the deep freeze of last winter - you’re probably out of luck. The Weather Network’s winter outlook for Canada is calling for conditions that prevailed a year ago to be more or less repeated across the country. Chief Meteorologist Chris Scott is forecasting colder than average temperatures from eastern Saskatchewan through to New Brunswick. He says the rest of Saskatchewan, Alberta and the other Atlantic provinces should brace for wildly swinging temperatures that average out to near seasonal norms. l 46 Claims Canada

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CIAA New Members — October 2014 CORPORATE MEMBERSHIP Integrated Insurance Resources

Mississauga, ON

INDIVIDUAL MEMBERSHIP Crawford & Company (Canada) Inc. Heidi Sandaker Grande Prairie, AB Robyn Stewart, BA, CIP Brockville, ON Jovan Jovicic Hamilton, ON Shawna Ridout Hamilton, ON Allen Bradley Barnett Mississauga, ON Vasiliy Jidkov, CIP Mississauga, ON Heather MacIsaac Newmarket, ON Chris Jolliffe St. Catharines, ON Lisa Dattoo-Basdeo, CIP, CRM Toronto, ON Adam Furfaro, CIP, CRM Toronto, ON Andrew Matos Toronto, ON Ian Richards Toronto, ON Jennifer Rodrigues Toronto, ON Steven Shimmin Waterloo, ON Rachel Thorne, CIP Stellarton, NS Leo Arseneau Bathurst, NB

Level 2 Level 1 Level 1 Level 1 Level 2 Level 2 Level 1 Level 1 Level 3 Level 2 Level 1 Level 1 Level 1 Level 1 Level 1 Level 3

Cunningham Lindsey Canada Claims Services Ltd. Richard Michaud Edmundston, NB Level 1 Theresa Wood, CIP Saint John, NB Level 2 Dianne Boone, BAA, CIP Dartmouth, NS Level 3 Integrated Insurance Resources John Seyler, CIP Mississauga, ON

Level 3

Kernaghan Adjusters Limited Tara Dempster Calgary, AB Jonalee Hodges Edmonton, AB Shailean Jakubowski Edmonton, AB Stephanie Straile Flin Flon, MB

Level 1 Level 1 Level 1 Level 1

Marsh Adjustment Limited Glenn Dickey Edward Turner William Rodgers Michael Daley

Level 1 Level 2 Level 1 Level 1

Moncton, NB Sydney, NS Truro, NS Yarmouth, NS

Prince Edward Claims Services Inc. Lola Inman, CIP Charlottetown, PEI

Level 1

CIAA New Members — December 2014 INDIVIDUAL MEMBERSHIP Crawford & Company (Canada) Inc. Wayne Grudnitzki Regina, SK April Schultz Regina, SK Jody Soede Fredericton, NB

Level 2 Level 1 Level 1

Cunningham Lindsey Canada Claims Services Ltd. Samuel Hansen Saskatoon, SK Level 1 Kernaghan Adjusters Limited Terrence Carson Duncan, BC

Level 3

Plant Hope Adjusters Limited Francis Martin Bathurst, NB Darcy Plant Dieppe, NB Jacinthe Reid Dieppe, NB Lise Ryan Dieppe, NB Douglas Stewart Antigonish, NS Craig Ozog Bedford, NS Bruce Olie Coldbrook, NS

Level 1 Level 1 Level 3 Level 1 Level 3 Level 3 Level 3

www.claimscanada.ca

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The Association of Certified Fraud Examiners (Toronto Chapter) and the Canadian Association of Special Investigations Unit (Trillium Chapter) held the Annual Fraud Forum on September 23. The event held at Le Parc Conference Centre in Thornhill, Ontario featured a mix of both general and insurance fraud seminars, in addition to a busy tradeshow. l

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• on the scene OTS The ARC Group Canada held its 2014 Annual Seminar and Cocktail Reception at the St. Andrews Club and Conference Centre in downtown Toronto on October 2. This year’s seminar saw experts offer their views and insight as part of the panel, Catastrophic Loss – Fires, Floods, Explosions – What’s Next, Locusts? Panelists included Dr. Blair Feltmate, a professor at the University of Waterloo’s School of Environment, Enterprise and Development (SEED); Paul Kovacs, founder and executive director of the Institute for Catastrophic Loss Reduction (ICLR); Greg Larochelle, head of reinsurance placements and administration for RBC Insurance; and Martha Turnbull, RBC Insurance’s head of home, travel and property claims. Attendees had the chance to network and discuss the activities of the day at a cocktail reception following the event. See coverage of speaker comments at: http://bit.ly/arcseminar14 l

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• on the scene OTS Cunningham Lindsey held a cocktail reception with its Major Loss Services, Public Entities Division and EFI Global Canada at Hy’s Steakhouse Cocktail Bar in Toronto on October 3. Clients and industry partners joined Cunningham Lindsey staff for the chance to interact andcatch up, all while enjoying cocktails and hors d’oeuvres. l

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• on the scene OTS LM Temperature Control and LM Commercial Drying hosted an open house and grand opening party on October 9. The “LM Family Circus” event was appropriately titled, as guests enjoyed an over-the-top circus theme, carnival-inspired food, cigar and scotch bar, ribbon cutting ceremony as they mingled and networked with the staff. l

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• on the scene OTS The Property Loss Restoration Expo (PLR Expo) held Canada’s largest restoration conference in Toronto at the International Plaza Hotel on September 30-October 2. The event featured a tradeshow and seminars covering a wide array of timely restoration industry topics. More than 60 exhibitors filled the exhibit hall and the tradeshow floor bustled with delegates from across Canada. Attendees were also delighted to hear renowned futurist and keynote speaker Jim Carroll. l

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