SJC upholds rule in which auto insurers are not assigned high risk drivers for their first two years in the Commonwealth

In my last post I wrote about Arbella Mut. Ins. Co. v. Comm'r of Ins., 456 Mass. 66 (2010), in which the Supreme Judicial Court addressed the interplay between auto insurers that have recently entered the Massachusetts market and the Massachusetts Automobile Insurance Plan (MAIP), under which high-risk drivers obtain automobile insurance issued by private insurers.

The background to this case is changes to auto insurance regulations a couple of years ago which resulted in many new insurance carriers entering the Massachusetts market.

The court addressed a challenge by Arbella, a long-standing insurer in Massachusetts, to MAIP Rule 30.A. That rule delays the assignment of high-risk drivers to companies new to Massachusetts for two years after they enter the Massachusetts market.

Arbella first argued that Rule 30.A

exceeded the statutory authority given to the insurance commissioner, which requires allocation to be "fair and equitable."

The court rejected Arbella's argument. It noted that newly writing companies do participate in MAIP from the time they enter Massachusetts by paying assessments for the operating expenses of MAIP. It discussed the fact that in the past new insurers were allocated fewer high-risk policies than established insurers.

The court also rejected Arbella's argument that Rule 30.A permits newly writing companies to poach less-risky policies from established insurers without worrying that their increased market share would result in a proportional increase in their assignment of high-risk drivers. The court stated that Arbella had not demonstrated that the formula unbalances competition any more than the former rules did. It noted that the Commissioner stated that insurers face start-up costs when entering the Massachusetts market, so that the two year delay was a fair and equitable formula.

Ignorance of the Law can be a Reasonable Excuse

The Court of Appeal for Ontario has held that the failure to give statutory notice within 10 days to the municipality, arising out of a slip and fall on an icy municipal sidewalk, is not a bar to an action where the injured person waited four months to give notice because (i) he had a serious injury, (ii) he didn't know about the law requiring him to give notice and (iii) he was depressed. He did not give notice to the City until he was contacted by a lawyer four months after the slip and fall.

At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."

Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried

about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."

The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.

The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.

Seth Kahan Interviews Me About My Consulting Practice

Seth Kahan and I are active members of a consulting community founded and run by Alan Weiss.



Several months ago he started a project of interviewing some of us.

href="http://freelancefortune.wordpress.com/2010/02/24/scott-simmonds-world-class-insurance-consultant/">Here is the recording of his interview with me.



We talk about my practice, how I started, some of the tools I have used, and some of my breakthroughs that have helped me succeed.

We All Have Our Pet Peeves

A Pet Peeve is something that always seems to aggravate you or "get your goat" so to speak. We all have them.

A former employee used to get very irritated when shoppers did not push their carts back to a holding pin in the store parking lot. Another person I know cannot stand a pen being repeatedly clicked in and out, as some folks do habitually, anywhere near him.

I suspect your pet peeves are coming to mind. I will share with you some of mine as well. I answer a lot of questions in my law practice, Bible teaching and even personally. So here are some in that regard:

I get aggravated when someone asks me a question and then does not even listen to the answer. It does not happen much, but I really struggle with that. I mean, why ask the question if you are not going to at least hear the answer? You don't have to agree, but don't ask another question ten seconds into an answer is being given. Or even worse, turn and talk to someone else while I was giving you an answer. After that happens once, I run out of the will give any more answers pretty quickly.

In that vein, I also do not appreciate when people wrongly summarize an answer or oversimplify an answer I gave. For example, if a person asks me about a potential case and I explain that I will have to "review their medical records to determine something." And they say something like, "So, you are saying we just don't have a case." It aggravates me a bit on two levels First, they could not have been listening. Second, I make a living with my words. I certainly could have looked at the them and said, "You don't have a case" if that is what I wanted to convey.

Or, one from this week, when some insurance adjuster with a bad attitude says he calls to "discuss" a case, but then only lowballs some offer in a "take it or leave it tone." That, I am afraid, it not a "discussion" of the merits and strengths of the case, and I think it is rude. Besides, it just hurts his insured client in the long run, because I sue his client.

And, what about the pet peeves about other folks' driving? I think at lot of us have those.

Folks doing 45 mph in the fast lane. Stopping at Yield signs with no traffic. Total inability to merge. Funny, that there are so many bad drivers out there, but I have yet to meet one that admits it.

What about pet peeves at stores?

Who enjoys being in a line for ten minutes, behind someone with enough groceries to feed the Memphis Grizzlies, who only begins to look for a checkbook in her oversize purse after everything is fully checked out? Seriously, was she just surprised she was asked to pay again? They want me to pay every single time. She pulls her "purse" up and puts it on the counter with a thud. She then empties it all out, pulling out her kleenexes, make up, photos, an extension ladder and a hair dryer, but cannot find that darn wallet. Then, when we all are so happy that she has located her wallet. She wants to write a check. She needs to borrow a pen. Then she has to write out the whole check. Slowly. The clerk with electroncially fill it in. But no, she writes it out. Then she stands there computing her check register and balancing her check book. Are you kidding me?

My Great Grandaddy used to say, "There ain't nothing wrong with this ole world, its just the people in it."

We all learn to live with these irritations of daily life. No doubt, I have done my share of aggravation to others as well.

For what it is worth, it hard to stay mad at someone that you are praying for. And, we really do not know what they have been through, or are facing. My Dad used to tell me that it is calming to just "assume that everyone is doing the best they can--maybe the best they have ever done--that very day."

That is good advice. So, God bless bless the bad listeners, slow folks in the fast lane and those who check out at glacial speeds, maybe you are just slowing me down a bit to appreciate this life a tad more. Who could stay mad at that?

Business Car or Personal Car

I was recently asked about the issues with insuring a personal vehicle on a business auto policy. Here's what I said:



The name on the title/lease should be the name on the insurance policy.



A personal auto policy is for a person.



A business auto policy is for a business (corp, LLC, partnership...).



Messing with any of the above is asking for insurance trouble.



Two issues - Coverage and Pricing:



Coverage -- Your personal auto policy

allows you to use your personal vehicle in the conduct of your business - unless you are racing or a taxi service. Ride-sharing / car-pooling is not a taxi service.



Underwriting / Pricing -- Personal auto policy premiums are partially based on usage - personal use, commuting, business use. I drive 10,000 miles a year - about 3,500 of which is business use. My policy is rated for personal use - I told my agent how much I drive for business and he rated the policy as personal use. Some would rate this as business use.

How Do I Find Cheap Life Insurance?

Life insurance is something that will protect your family even if you pass away. This is important. You don’t want to die only to put your loved ones into serious debt. If you are the breadwinner in your family, it is important that you protect your loved ones by investing in life insurance. This will give your loved ones the time to really recover from this loss without having to worry about money. The following are some places to look for cheap life insurance.

Look Online

The Internet is full of stellar information. By performing a basic search online, you will find a list of companies that offer a range of life insurance plans. Additionally, there are price comparison websites that will help you look at plans side by side. Different life insurance plans offer different terms and rates.
Ask

Around

Always ask loved ones where they have their life insurance policies. Knowing which groups loved ones have worked with will give you some inside information about these groups. This is a solid way to find the best life insurance companies around.

You can find out a lot about a group just by talking with them on the phone. If you already have car or health insurance, this company may also offer life insurance at a discounted price to existing policy holders. See if your insurance provider offers such plans and discounts.

Lastly, take the time to call up local companies to see what they have to offer. If they know you are shopping around, they may give you information about discounts and promotions. Cheap life insurnace is out there. You simply need to do the work to find it. Explore your options and really see what groups have to offer before you make a decision. Life insurance helps your loved ones. Thus, you shouldn’t settle for less than the best!

A right type of life insurance policy is an essential investment

To safeguard your family and dependants regardless of where you live and what your age is. This is not a thing, which you should put on hold. In its place, research, compare and try to find a perfect life insurance policy with the intention that you can be certain that everything will be, dealt with if some unexpected occurs to you. There more than a few reasons why life insurance is so important listed below are a few.

You definitely would like to be certain that your affairs and your family are taken care of even after you breathe your last. You might have a car loan or a home mortgage that needs to be settled up should you depart this life.
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By having a life insurance policy in place, this can be easily dealt with in no time at all. Besides, there are other things to think about, the whole lot from property taxes to funeral. You need not be a burden on your family with massive medical bills or funeral costs. A number of families fall into debt as soon as the sole breadwinner dies all of a sudden. For that reason, if you are insured and posses an active insurance policy, you can be, certain that the whole thing will be looked after in the incident that you expire.

Life insurance is useful given that it denotes you can look after your family even after you breathe your last.

For instance, the cash can be used to settle mortgage on your family home, thus saving them their shelter and provide financial support for sometime like paying school fees until they are able to live on themselves. This confirms that some good can really come from this death. If you are a sole wage earner of the family, it will as well confirm that fixed monthly expenditures can be taken care of until they are able to sustain on themselves. You would not like to die and see your family in debt, life insurance will provide you peace of mind and assure you that your family is financially secure even after you are no more.

In fact, life insurance will come to rescue and help your family in the event that you die. This will lend a hand to them to pay for monthly expenses even as they mourn, lay you down, and deal with your leftover debts and assets. By having, an excellent insurance policy in place will confirm that you can in fact lie down in peace knowing that your family is looked well after. This will act as a very crucial financial buffer, which can in fact be important for you and for your family.

Once you have decided to go for a life insurance policy, take time to research and compare several life insurance plans from various companies to make out the perfect plan for your needs. There are now several online resources and websites that offers such services. You can request for various life insurance quotes
from different life insurance companies
to get a best life insurance deal.

Background on the Massachusetts Automobile Insurance Plan

In Arbella Mut. Ins. Co. v. Comm'r of Ins., the Supreme Judicial Court addressed several issues relating to the interplay between auto insurers that have recently entered the Massachusetts market and the Massachusetts Automobile Insurance Plan (MAIP), under which high-risk drivers obtain automobile insurance issued by private insurers.

This post will discuss the background of MAIP, and my next posts will discuss the substantive decisions made by the SJC about certain provisions of MAIP.

href="http://www.mass.gov/legis/laws/mgl/175-113h.htm">Mass. Gen. Laws ch. 175 § 113H requires the Commissioner of Insurance to create a system whereby auto insurers provide insurance to high-risk drivers (generally drivers who have received a lot of tickets or otherwise shown themselves likely to get into accidents). The Commissioner has a lot of leeway over exactly what the system will be.

MAIP is the current plan enacted by the Commissioner. Under it, insurers are assigned policies issued to high-risk drivers in proportion to each insurer's share of the voluntary market.

A Year Is Not Enough - Maybe

Most property insurance programs limit coverage for loss of business income to 12 months.



Is that long enough for you? In many areas the time it takes to get permits and meet regulations can eat away 3 months or

more. You need a contractor who can move quickly, and you may deal with labor and material shortages if your building is destroyed in a wide-area disaster.



Think about extending your business income insurance to 18 months.

AM BEST Predicts Commercial Insurance Market Change

Insurance rating org AM Best is predicting that the commercial insurance market will start a move to higher prices, according to the Insurance Journal.



I don't know if their prediction is right or not. I do know that the insurance marketplace right now is competitive for good risks. There are a great number of insurers chasing renewals

and new business.



In any market insurance buyers do better when there is competition for their business. If you have not tested the market recently, consider getting alternate quotes now.



Recent bid project:



- expiring premium $60,000



- renewal offer from current insurer $55,000



- offer from another agent $26,000 - higher property limits and an extra $2m umbrella

Current Insurance Policies and Pricing

I'm working with a client who has upwards of 50 different insurance policies. When I did my first review of coverage, I suggested that the premium on one policy looked high to me.



I was assured that the agent was a good guy, and took great care of my client. I continued my review only to find several indications that my client was being taken advantage of. I pushed to get alternative quotes on a few policies,

including the one mentioned above.



Another agent was given a chance and came up with a policy with all the coverage of the original, plus a $2,000,000 umbrella.



Old Premium $60,000



New Premium $25,000



Your impression of your agent is just that, an impression. Until you get competitive quotes, you do not know if you are paying a reasonable premium for adequate coverage.

Life Insurance

Life Insurance is an afterthought for many. It was different for me.

Originally, when I was getting married, I contacted my agent to purchase a policy. My reasoning was simple: I was about be married to my beautiful bride and she may get pregnant. If so, that child is mine and I must still provide for him or her even if something happened to me. She could get pregnant and I could die not even knowing she was a few weeks along.

I am not sure why that occurred to me then, but I have been told before I think a little differently sometimes.

When I explained all this to my agent, he said "If everyone thought like you, I'd be rich!"

At any rate, 15 1/2 years later I have bought more insurance to protect my wife and the kids if I am the first to go see Jesus.

Generally, I strongly prefer TERM insurance. Only under unusual circumstances would I recommend whole

life or one of its progeny.

Term is usually so cheap, it is a good buy. I strongly recommend its purchase while you are healthy enough to buy it cheap. A good rule of thumb on amount might be:

With all your debts paid off, could they live well on 5% annualized.

So, with a paid for house, and no notes, $500,000 policy may throw off 40 to 50K per year. Most people can sustain a nice lifestyle without debt and that income, plus any possible earnings. However, for a little more per month, a 1,000,000 is even more preferable. A goal is to allow your survivors to supplement their live though interest without touching the principal.

It can only be bought cheaply when you are young and healthy. So this is the time to think about it. And, be honest on the application, or they will deny your coverage, even after you die in some cases.

Unorganized Mish Mash

A few days ago I was interviewed by Seth Kahan for his website. Seth is a master marketer and business advisor - www.VisionaryLeadership.com.



He complimented me on my website, its organization, and the content I provide. Then he said that this blog was a virtual stream of consciousness collection. I think he was trying to compliment me. I'm not sure it hit me that way.



This blog was started years ago as a

way for me to put my thoughts, opinions, and advice on insurance and risk management out there. I know of no other website where there is this much information on a wide variety of insurance topics written by someone who does not have a policy to sell.



Seth, I know you meant well, and frankly I'm not offended. Next time you need insurance info come here and use the search box. If what you need is not here, I owe you a beer.

Shipping Lettuce by Rabbit

An insurance buyer emailed me last week saying that she had asked her insurance agent to provide an objective review of their insurance.



I wrote back that she was asking the agent

to judge his own work.



That, my Dad used to say, is like shipping lettuce by rabbit.



I think it was Warren Buffet who said, "Never ask your barber if you need a haircut."

How Often To Bid Your Insurance

I'm participating in a few insurance industry Internet forums discussions over how often a business should bid their insurance.



One agent answered honestly (wink) when he said, "Every year until they hire me as their broker, then they should stop!!!!!"



Naturally the answers are diverse and many are not unexpected. The old standard of not more than every three years is often repeated. Many insurance people take the position that an insurance buyer should never bid - unless they are

unhappy.



I'm wrestling with my experience over the past few years. What I have seen is that insurance buyers who do not bid their insurance do not get treated to the discounting and policy enhancements that come out of a competitive bid.



Certainly price is not the only factor in the insurance transaction. It is important though.



Here are the responses from all forums so far.

U.S. District Court discusses choice of law issues

Last week I posted about Stonewall Ins. Co. v. Travelers Cas. & Sur. Co., __ F. Supp.2d __, 2010 WL 6395 (D. Mass.), in which Judge Harrington applied the Texas law of equitable contribution.

I have said before that Massachusetts choice of law rules as they apply to insurance coverage disputes amount to so much gibberish. Choice of law issues are even less clear when the dispute is not between an insurer and an insured--who entered a contract with each other and, at least in theory, had reasonable expectations about which state's law should interpret the contract--but between insurers of the

same insured, who have no contract with each other.

In Stonewall, a dispute between insurers over allocation of defense costs, Judge Harrington summed up the choice of law doctrine: "Determining which jurisdiction's laws should control is not a technical analysis according to Massachusetts' choice-of-law doctrine; instead, the court takes a broader view, and considers the interests and facts relevant to the particular matter before the court." Now I totally get how to determine what state's law to apply--don't you?

Judge Harrington held that Texas law applied for three reasons. "First, the claims arise from products manufactured by the Key Houston Company, a Texas-based division of Jacksonville Shipyards, Inc. Second, the majority of the claims for which S & S paid defense costs are from Texas. Third, most importantly, Texas law firms generated the overwhelming majority of the defense costs."

Unprotected Defendants Entitled to Deduct Collateral Benefits under s. 267.8

Burhoe v. Mohammed (2010), 97 O.R. (3d) (391) (S.C.J.)

The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.

The court held that both unprotected and

protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.

This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.

The Business Insurance Bid Process

I have been spending a fair amount of time thinking about the commercial insurance bid process.



Lately I have posted to several insurance discussion websites looking for input and comments on the current market and traditions.



Here are some of the comments so far.



I'd like to open it up here too.



Insurance buyers, when

you bid your insurance what is your experience? How can the process be improved?



Insurance people, what advice do you give your clients? Do you give different advice to prospects? How do you like to see the process set up?



Respond here or to me privately - Scott@insurance-coveragelaw.com.



I have some ideas on some changes I plan to make when I take a client out to bid. More here after I have assimilated what has been said so far.

Maine Employment Law Guide - Massachusetts too

I just finished reading Rick Dacri's Maine Employment Law Guide. It is excellent. Simple and straightforward information well organized and delivered. A

must for any employer.



He has a Massachusetts version too.



http://www.dacri.com/store.htm

A foray into pop culture--and an explanation of negotiation

I recently saw Avatar, a movie about what happens when people are too caught up in their preconceptions to bother to negotiate.

In Avatar a marine goes to some far-away planet and infiltrates the indigenous people whose culture is the usual Hollywood image of the noble savage, more or less naked, unspoiled by consumer goods, happy to be in sync with nature and to ride their pet pteranodons. The evil earthlings have gone to the planet to exploit its natural resource, some weird rock. The biggest rock cache is under the giant tree where the Na'vi live and frolic.

Spoiler alert

The marine is accepted by the Na'vi and goes native. He tells the evil colonel and his evil capitalist boss that Earth has nothing the Na'vi want in exchange for leaving their tree. So the evil ones conclude that the only solution is to blow up the tree.

SLOW DOWN.

This is where the marine should go to his adopted people and say, "Guess what--the sky people want some rocks that are under the tree. Do you mind if they take them?"

The Na'vi might say, "Yes, we mind terribly and you'll have to blow up our tree to get our rocks." Then the movie would continue as if this interruption had never occurred.

Or, the Na'vi might say, "Rocks?

Sure, we don't care, as long as you find an alternative to strip-mining. You know in that original ending to the movie, how you prayed to mother earth and she had all the animals help you kill a lot of people? Why don't you pray to her to have the rocks put in a neat pile instead?"

Or, they might say, "Yes but only if you give us plastic beads, wireless internet connection, a promise never to darken our treestep again, and/or veto power at the United Federation of Planets."

Parties negotiating over insurance often make the same mistake: They assume they know what the other side wants without bothering to ask. Typically, the insurer/adjuster/insurance defense attorney overlooks the fact that the claimant might be seeking something other than just money, or at least in addition to just money: maybe an apology from the tortfeasor, or an acknowledgement that their life has been diminished by the accident, or a show of respect. Claimants tend to overlook the fact that in the long run (and often, but not always, the short run) the insurance company cares most about money, in the form of keeping overall liability and defense costs down. Between the claimant and the insurer there is often a lot of unrealized common ground.

Blowing up the tree is not always necessary. Sometimes you just have to ask for what you want.

New Certificate Forms

Insurance buyers will soon see the new certificate of insurance forms recently issued by ACORD.



The biggest change is a change in the cancellation language. The new

forms will read,



"Should any of the above described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions."

Pollution Liability Insurance

Basic liability insurance policies like the general liability and umbrella liability policies do not cover pollution.



Want to test to see if your agent is any good? Ask her what insurance companies she will go to to get you a quote on pollution liability insurance.



Here is the answer for most US

businesses: Zurich, ACE, Chubb, Chartis, Zurich, XL, Philadelphia, and Evanston.



There are certainly others. These are the big players though.



If it takes your agent more than a day to get back to you with the above list of companies or they only name one or two of the above, start asking questions.

U.S. District Court orders equitable contribution under Texas law

In Stonewall Ins. Co. v. Travelers Cas. & Sur. Co., __ F. Supp.2d __, 2010 WL 6395 (D. Mass.) several insurers were on the risk for silicosis claims brought against Jacksonville Shipyards, Inc. The insurers attempted to coordinate a strategy for dividing the defense costs, but could not agree on how to reduce and allocate the costs. They all recognized, however, that the defense costs were exorbitant.

The impasse caused one of the insurers, S & S, to take control of the litigation on behalf of all of the insurers. The London Insurers refused to cooperate with S & S and disclaimed an responsibility for defense costs paid by S & S.

Judge

Harrington of the United States District Court for the District of Massachusetts held that under Texas law the London Insurers were required to equitably contribute to the defense costs, which means that "where one insurance company paid in full for losses that are also covered by another insurance company, the paying insurance company can obtain contribution from the-nonpaying insurance company."

Judge Harrington held that the London Insurers must reimburse S & S 30 percent of teh defense costs. According to Judge Harrington, that figure was derived from tje percentage S & S stated in its answers to interrogatories that the London Insurers owed. (Presumably the answers to interrogatories contained back up figures for this assertion, although the opinion does not make that clear.)

Inland Marine

A strange insurance term to be sure. Seems like an oxymoron.



Marine insurance was defined by the National Association of Insurance Commissioners in 1953 and revised in 1976. Being a group of bureaucrats, the definition is long, ambiguous, and completely useless. Imagine holding a series of meetings on this in 1956 then doing it again in 1976. Me thinks they had too much time on their hands.



In effect, marine insurance is a class of

insurance dealing with property involved in transportation.



Inland marine is property dealing with transportation that does not involve the ocean. Ocean property is, naturally, called ocean marine.



Moving a piece of property from fire insurance onto a marine insurance policy can mean more pricing flexibility for the underwriter as the rates are not as regulated. There is also more flexibility in coverage forms used.



Class dismissed.

Our Society Today

OUR SOCIETY

A society can be judged by how we treat the most helpless among us.

The single most helpless life is a “fetus” (Greek for “baby”). We have aborted 50 million lives in what is supposed to be the safest place on earth, their own mother’s wombs. This loss of 50 millions souls is also a loss of a large work force as well. This is one reason why Social Security is bankrupt, as many of the terminated children would be working and paying in their share during the 37 years since abortion was legalized.

Further, people are quick to blame God for things like cancer. However, it is possible that the scientist destined to cure cancer was sent, and was aborted. Ironically, many who are rabid in their support for healthcare reform do not believe in the right of healthcare for the unborn. Future generations may well look back on this as the “slavery of our time”… a time when one “race” of people had no rights. Not even the right to life.

The way our society treats the elderly is also troubling. Nursing Homes in Tennessee are the fifth worse in the whole nation. Many chronically under staff and have trouble with getting good aides when they do hire one. No doubt there are some who just cannot be cared for at home. And, there are certainly good nursing homes out there, but I wind up having to sue those that mistreat the elderly, allow infected bedsores and repeated falls.

I often say that the World War II generation was our finest generation. Too many are just shelved at nursing homes while their children’s worlds are in turmoil due to serial divorces and constant activity. The economy seems to be set up for both parents to have to work outside the home, and thus entrust the state with the education of the children. This is a very recent concept.

All this hurts another class of people: our children.

Were things really better “Back in the good old days?” In the 1950’s, a couple's work schedules in the 1950s, the husband probably had a 40-hour working week. The time commuting to work was much lower and other activities probably accounted for 55-60 hours of his waking time. The mother was often a stay-at-home mother, and usually took a job as a teacher, nurse or secretary to pay extra bills from time to time. There was more time and enough money to support this home-centered lifestyle.

Now, our kids are busy too. Many parents have their children involved in a whole range of outside activities such as competitive sports. Oddly, this is in an effort to give our kids the best in life. Some of the sports actually play on Sundays, preventing church attendance as a family. What little theology is taught today to kids is poked fun of at school, as atheistic evolution is taught as fact! Parents have missed the main thing to teach children, which is how to have a personal relationship with Christ, because it was not taught to them. Lost in one generation! Families are rarely sitting down at the table to eat dinner together in our society. And if many families did, they would be too busy texting friends to talk.

The way we treat our unborn children, our elderly and our young children tell much about our society. The world was not always like this. It does not have to continue to spiral downward. No one can change things in your family until someone decides they need to change. Decide to be a family that has dinner together, that attends a Bible-teaching church together, that honors traditional marriage, that takes a stand on issues based on principles (not convenience) and that makes a difference for the short time we are here.

Evacuation Plans

Not long ago I read about a tanker truck that overturned causing neighborhoods to be evacuated.



We are not too far from the Maine Turnpike. When the wind is right, we can hear the traffic noise.



Of course, if the wind was wrong, at the wrong time, we would be impacted by a tanker spill.



Yesterday I was thinking about how we would get out if we had

to evacuate. I pulled up Google maps and looked for alternative ways away from the turnpike. It would bring us to roads we do not use and are not familiar with - back country.



Im going to drive those roads sometime soon. I am also going to put together a plastic bin with some basic stuff we can just grab if we have to go.



When being prepared is so easy, why not do it?

PUT A BLOCK ON YOUR AT&T HOME BILL NOW...or else!

There is a new way for you to be rip-offed.

Check your home AT&T bill for services for voicemail or email that are form a company other than AT&T. The usual culprits are "ESBI" or "Residential Email."

Usually they are only $12.00 -$15.00 each so you might miss

them, but they will claim you signed up for monthly service.

They will cancel and promise a credit --but you must insist that ATT give you a temporary credit right now on the bill. Then ask ATT to "BLOCK all third party charges to your account."

There. I feel better.

Municipality not liable for failing to erect signs

Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (S.C.J.)

The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.

Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard

of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:

I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)

Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.

Volunteer Immunity Laws

Many states have volunteer immunity statutes that offer protection for liability while doing charitable work.



Google your state name and "volunteer immunity."



Such laws can not be depended on to provide protection for directors and

officers in the non-profit world.



Such laws only protect volunteers for state issues - no protection from federal law and rules - ADA, EEOC, discrimination laws, etc.



I say again, these laws are not a replacement for directors and officers insurance.

Hold Harmless Agreement

According to Ray Burnham's Insurance Dictionary (www.BurnhamSystem.com), a hold harmless agreement is a "contractual provision in which one party assumes another's legal liability, as a contractor may assume an owner's liability based on the contractor's actions; is another term for indemnity agreement."



I use the phrasing, "When one party agrees to take the bullet for another party," when describing hold

harmless and indemnity clauses."



Use caution when agreeing to assume liability for someone else. While many insurance contracts will follow you in such agreements, some will not. Further, if the agreement is too broad, you could be assuming liabilities that your insurance does not cover. For example, pollution is excluded from most liability insurance policies. However, your indemnification agreement may may you liable for pollution liabilities.

Video Security Equipement

In the past two days I have received two catalogs of video security equipement.



The technology is at a point (as is the price) that I cannot understand why any business would not have a video system monitoring the parking lot, sensitive areas such as

cash registers, and exits. For $600, you can have a full system of DVR, 8 cameras, software, cables, internet hookup, etc. For $300, you can get everything you need in 4 cameras.



I'm wondering why people are not buying these for their houses and neighborhood.

Subscribe to this blog on your Kindle

The link is on the left column of the

blog, about halfway down.

Happy reading.

Calculation of Housekeeping Losses

McIntyre v. Docherty [2009], 97 O.R. (3d) 189 (C.A.)

The Court of Appeal recently commented on the proper method of calculating housekeeping losses.

The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss

housekeeping capacity and $44,535.00 for future loss housekeeping capacity.

The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.

In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.

Drug Testing

Consider a drug testing policy for your employees. There are testing labs in almost every community that can help with the process.



There are also DIY kits you can buy at many drug stores. Drug

and alcohol abuse can be the cause of huge expenses for businesses - impaired driving, workplace accidents, theft losses...



Check with your employment lawyer before implementing a policy. State laws vary.

State Farm cancelling homeowner's policies in Florida

According to this article on

MSNBC, State Farm is canceling about half of its homeowner's policies in Florida because of expected hurricane losses.

Tennessee's Nursing Home at the Bottom!!

Article on front page/top fold of the Tennessean…

TN nursing homes rank fifth worst in U.S.

Staffing levels are less than half what Medicare suggests

By Christina E. Sanchez
THE TENNESSEAN

Poorly staffed http://health.state.tn.us/NursingHomes/index.htm">nursing homes have put Tennessee among the worst in the nation for quality of long-term care for a second year, a federal report shows.

Only four states had worse standings, according to a Tennessean data analysis.

That's because Tennessee has one of the lowest staffing requirements in the country — less than half of what Medicare recommends.

"We don't think the standard is enough," said Traci O'Kelley, assistant administrator at West Meade Place, one of only two nursing homes in the Nashville area to earn top marks in the survey.

But it is unlikely that facilities' staffing will get better anytime soon, in part because state law would have to require higher staffing levels, and funding for nursing homes would have to increase.

60% got low ratings

About 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. http://www.medicare.gov/NHCompare">Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

More than 60 percent of Tennessee's 319 nursing homes got low ratings — one or two stars — for staffing by registered nurses.

Overall, the state ranked in the bottom five. Only West Virginia, Texas, Georgia and Louisiana had lower average scores. However, Tennessee fared better than it did a year ago, when the star ratings earned the state's nursing homes a third-worst designation.

Tennessee's results were better this year in quality of care, which measures such factors as the number of patients developing bedsores and infections. Staffing levels remained the biggest problem.

"We have 319 nursing homes in the state. To have one out of four rated just as one star is a sign we are not doing our job in Tennessee," said Patrick Willard, AARP advocacy director.

Staffing law faulted

Advocates say the staffing level required by state law is not enough to care for nursing home residents, and that carries consequences: ignored bedside calls, medication errors and unanswered questions.

Under Tennessee law, each patient should have at least two hours of direct care each day, including 24 minutes of a licensed nurse's time. Standards in neighboring states vary, with Mississippi requiring 2.8 hours of direct care and Arkansas mandating more than 3.8 hours.

Medicare's standard of staffing is higher: four hours of care for each patient daily, including 55 minutes from a registered nurse.

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"If you increase the minimum number of hours, then you are going to be pushing those nursing homes that are trying just to get by, and by doing that, you will improve the quality of care in nursing homes," Willard said.

To get a five-star rating for staffing, a nursing home must meet Medicare's standard. No nursing home in the Nashville area achieved five stars in that category.

West Meade Place earned four stars for staffing by registered nurses and three stars for overall staffing. O'Kelley, its assistant administrator, said the home strives to have more staff than is required. The 120-bed facility, which is usually 86 percent full, adjusts staffing based on patient volume and hires more nurses if needed.

"Because of acute care and patient needs, I don't think the job would be done effectively at that minimum staffing level," O'Kelley said.

Star system has flaws

The star system is useful as a starting point for families but should not be an end in itself, O'Kelley said.

"I am always amazed at how many people show up here just because we are a five-star facility, and had never stepped foot in here," she said. "People should visit, get to know the staff and ask around."

Proponents and critics of the star system say it is a useful tool, but it has flaws. Medicare tries to streamline the standards of all states into a one-size-fits-all scenario, they say.

"You have differences between states, different ideas about what constitutes a deficiency, and a lot of information is provided by the nursing homes themselves," Willard said. "It is a worthwhile measuring stick, but it is not the only tool for finding a facility for a loved one."

'A good first glance'

Medicare officials say a one-star rating does not mean a nursing home is a bad facility. All homes must meet baseline Medicare conditions, which are often higher than state standards.

"It's a good first glance for people," said Lee Millman, spokeswoman for the Centers for Medicare and Medicaid Services' Atlanta region, which includes Tennessee.

The agency even states on its own Web site that the report has limitations, noting that state requirements vary and that some data are self-reported and may reflect only a two-week period.

Medicare "uses a system of ranking for staffing that is based on desired staffing levels, not a required or mandated level," said Ron Taylor, executive director of the Tennessee Health Care Association. "Using that staffing level, a lot of facilities that have good, quality service don't rank really high because they don't meet (Medicare's) standard. But they meet the state standard."

Keith Smith, administrator and CEO of Spring Meadows Health Care Center in Clarksville, said it's good that the government tried to keep the ratings simple, but the program needs serious work.

"The whole system was very prematurely implemented and fundamentally flawed," Smith said. "But we try to work with it."

Spring Meadows received an overall one-star rating. It moved up in the area of quality from one star to three.

The ratings for staffing and surveys focus on regulatory compliance, not quality of care and outcomes, he said.

"I'm all about the public having a good tool to evaluate, but this is not it," he said.

Broker Of Record Letter

Broker Of Record Letter is form letter used to indicate to an insurance company a policyholder’s preference as to which insurance agent will have exclusive rights to the insured.



When you submit a "BOR" you fire your current agent for that insurer and exclude all other agents/brokers from accessing that insurance company.



Most commercial insurers will only work with a single agent for a particular insured. The BOR process is how you, as

the insurance buyer, can move from one agent to another.



Typical BOR language: "By this letter we appoint XYZ Insurance Agency as our broker of record. This letter supersedes all past notifications and is effective immediately."



Some agents have started adding language to limit "BOR Wars." "This assignment of broker will not be rescinded and is effective from now until February 15, 2011." Some insurers will not accept such declarations.

You asked for it, you got it

Marie Cheung-Truslow, an attorney specializing in representing insurers in subrogation cases, asked if I could add an index to my blog. Yes I can, and I have.

Scroll down on the left-hand column, and enjoy.

I haven't included case names in the index, but you can search for case names, or any other word or phrase, by entering it in the search box in the upper left corner.

My Fans

I get calls every week from readers of this blog. Frankly, it's fun and an ego boost.



A caller today asked the difference between how I approach insurance and what an agent does.



Agents (usually) work for an insurance company and are paid on a commission basis - bigger premiums = bigger commissions.



I work for the insurance

buyer - they pay my fee. My fee is not dependent on buying or not buying a policy. My only interest is getting my client the best coverage at the best price with the best service.



-I never sell insurance.



-I don't care if a client buys a policy or not.



-I don't have to worry about how a recommendation will impact an insurance company.

New Summary Judgment Rule Results in Dismissal of Claim

Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.

This may prove to be a precedent helpful to municipalities.

Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.

Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”

These statutory notices are often sent to municipalities late.

The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.

Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20

motions.

Now under new Rule 20 this is possible.

The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.

The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.

The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.

The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.

The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.

An interesting decision.

OSHA Logs - Post Them Today

Reminder!



OSHA 300A Summary logs must be posted today.



They must be up today and left up

until April 30



Everything you'd want to know about OSHA - http://www.osha.gov/.

FREE CREDIT REPORTS NOT ALWAYS FREE

Free Credit Reports Not Always Free

If you watch even a bit a television, you have heard the catchy tune for freecreditreport.com.

It is not really free, unless you can cancel before the subscription ensues. Otherwise, you will be paying more than $100.00 dollars a year.

There is a free way however. Our government has set up a truly free website called AnnualCreditReport.com. You can get a free report from each of the credit agencies: Equifax, Experian and Trans Union. But, you must only get one per agency PER YEAR.

This will come in very handy if you are monitoring your credit to clean up a mess, or to get in shape to purchase a home for your family. If you are disciplined enough, you can actually order one report from each agency in four month intervals. Since they mostly reflect each other’s data, this should help you monitor your situation until your goals are met.

Here is the inside track on what makes up your credit score:

35% - PAYMENT

HISTORY – The longest possible history of never being late or missing a payment means a good safe risk for bankers.

30% - AMOUNT YOU OWE – The amount you owe on credit cards, auto loans, and your current mortgage, divided by the total of all credit available to you, as a percentage. The closer to 80% or higher, the worse you look to bankers.

15% - LENGTH OF CREDIT – Best scores are reserved for those who have had credit for the longest time.

10% - LAST APPLICATION FOR CREDIT – Recent credit applications can indicate a “need” for money, which hurts you. (Ordering your own credit score report from one of three bureaus does not count).

10% - THE TYPES OF CREDIT YOU USE –Installment loans are items like car loans and mortgages, which are best. Revolving loans like credit cards count less.

A good credit score can also help you get lower rates on insurance, loans, and even help you get a job. I truly hope this information is helpful to you.

You do Not have for your do not Ask

You Do Not Have, For You Do Not Ask

Throughout my life I fell that I have been rewarded by being kind but bold enough to ask for what I would like.

For instance, the recent snow canceled our flights and put us a day late getting to our hotel. Our hotel reservations where expressly “non-cancellable” and “non-refundable.” However, by gently seeking the refund anyway, it was approved for our delayed arrival.

In a legal case involving a work-related injury, I had a letter from the other attorney stating the maximum that they would ever pay. The only way that would be increased is in the unlikely event that one of the two treating doctors changed their final rating.

Again, it is rare for a workers compensation doctor to change his rating, but I both of them asked anyway. One of them did not change it, but the other did. The increased rating led to a settlement well in excess of the “maximum” that was named earlier.

How often would people work with us if we kindly but firmly

asked for what we would like? The Bible reminds us “we have not for we ask not.”

This principle also applies to our marriages and other relationships.

In the church or workplace, how many times are we doing things just because “They have always been done that way.” It is good to ask occasionally “Does this help us meet our goals?”

For instance, what a husband and a wife each feel is “romantic” virtually never match up. That is why it is so important to let your spouse know what you need and not have them just guess.

The best illustration of not knowing how to help because we never even asked is an old story about a couple coming home late from their 50th anniversary party. He offers to make sandwiches and gives her the one made with the heelpiece from the end of the loaf. She explodes, “For fifty long years you have given me the heel piece and I am sick of it!” He looks saddened, and softly says, “But that is my favorite piece.”

Personal Use of A Business Auto

If you provide a car to an employee who does not own a car insured by a personal auto policy, that employee has an insurance problem.



Under a personal auto policy coverage is extended to protect the insured when she is driving a

friend or neighbor's car - or any non-owned vehicle.



That coverage is not provided on a commercial auto policy.



Talk with your insurance advisor about adding "drive-other-car" coverage to your commercial auto policy.