'Tis the season for back to school: A parent's guide to the hidden dangers of carpooling

What is it about back to school that makes you think of getting organized, new school clothes, and a brand new set of colored pencils? While kids are full of excitement and jitters of the new school season, seeing their friends and making new ones, as parents, you are probably just as excited to get them back to the normal routine. And if you are like most busy parents that means you are driving your kids to the thousands of afterschool activities like soccer, dance, football, band, concerts, etc. In some cases, this means you are also carpooling everyone else’s kids around as well. And why wouldn’t you? If I am taking Tommy to football, of course I am going take his best friend Frankie who is playing on the same team as him. But did you know that as a parent, your good deed could come with consequences? And those consequences could come with law suits if say you ended up in an accident with other people’s kids in the car.

Yes, in the event of an accident, especially in today’s litigious society, if little Frankie got hurt, Frankie’s mom and dad are most likely going to sue you. So, what can you do to prevent this? I mean after all, you don’t want to be rude and leave Frankie on the side of the road because you are afraid of all of the “what-ifs” that could or would happen. And I am sure he would look at you like a crazy person if you told him, “I’m sorry I don’t want your parents to sue me for my house and Tommy’s college fund if I accidentally crash my car with you in it.”  I’m way over 10 years old and even I would look at you like a crazy person if you told me that.

But you can do what I suggest all of my clients to do, prepare for the worst but hope for the best. I know that may sounds a bit dramatic, but there is a method to my madness. There is…a plan. You can do this by starting to take a closer look at your auto liability insurance and even look into an umbrella policy.

Umbrella policy? I know, many people, even my brother did not know what an umbrella policy was. No, it’s not protection for your umbrellas, which is the first image that comes to mind. An umbrella policy is additional liability insurance which covers you over your auto insurance and your home insurance. In other words, this would pick up where your auto policy drops off, in the event that you didn’t have enough insurance. Usually this coverage starts at $1,000,000 in additional coverage over your auto insurance and can go up to $25,000,000 or higher depending on your needs. I know your next thought is probably, “$1,000,000? That sounds expensive!” But surprisingly for an extra $15-$20 per month, you can purchase this coverage and the best part is…it covers over the home insurance as well.

Now for the auto, my suggestion to many people is to take as much coverage as you can afford. I know things are tight today, so if you cannot afford to take the umbrella policy in addition to the car insurance, I would increase that liability to the highest your company will allow you to go. Usually this increase is not as much as you think it would be. It could be as little as an additional $5 a month for twice the amount of coverage. It’s a lot cheaper than having Frankie’s parents sue you and finding out you don’t have enough coverage.

And what happens then if you don’t have enough you ask? Well they can garnish up to 25% of your wages and go after any assets you own – i.e. your home. Does the $5 extra a month sound like a good deal? Heck, to me $20 a month sounds like a good deal at that point.

I know that this might sound a little overly prudent, but I wanted to make you aware of the risks of carpooling. And although I know your intentions are good, nobody plans to have an accident. That is why they are called accidents. And while Frankie’s parents might come over for game night at your house, if you got into an accident with their child, they most likely will sue you if it was bad enough.

Better to know you have the proper coverage now, than to find out later when you really need it. Not sure how much you have or what is enough? Or do you not know what everything means? We speak insurance here and can help you figure out how much is enough insurance.

Call me, Amy Bryan at 845.565.2200 or 888.565.2212 or email me at abryan@bryanagency.com today to find out more information about how to protect your family the right way. You can also visit us online at www.bryanagency.com

Threshold Motion Successful

Surveillance evidence can be useful in showing that the plaintiff does not meet the Insurance Act threshold.

In Dahrouj v. Aduvala, 2012 ONSC 4090 (S.C.J.), the plaintiff was injured in a minor rear end collision.  She was a homemaker and alleged she developed chronic pain which impaired her functioning in the home and her social interaction in the community.

The evidence at trial was that the plaintiff visited her family doctor on multiple occasions prior to the accident complaining of head, neck and back pain.  She made similar complaints post-accident.  The defendant obtained surveillance showing the plaintiff engaged in a variety of activities, including scraping snow and ice off her car, pumping gas, reaching for groceries on an upper shelf and carrying groceries.  Justice Hackland described the video as “particularly devastating” to the plaintiff’s credibility, as it showed the plaintiff stretching and lifting, the activities she alleged restricted her functioning as a homemaker.

The plaintiff’s expert diagnosed her with “central sensitization”, based on a 45 minute interview and relying only on the plaintiff’s self reports.  Justice Hackland preferred the defence expert, who conducted a more thorough assessment and whose opinion was corroborated by the surveillance evidence.

Justice Hackland held the plaintiff had not proved she sustained a serious, permanent impairment of an important physical function.  As a result, she was not entitled to general damages and her recovery was limited to $32,000, the amount the jury awarded for past housekeeping. 

Surveillance of the plaintiff can be extremely important in defending claims, especially those alleging chronic pain.  When surveillance can be combined with expert opinion, it can be effective in showing that the plaintiff’s claim does not meet the threshold.

Adding an Insurer as a Defendant Rather than a Statutory Third Party

Can an insurer add itself as a defendant rather than as a statutory third party?

In Azad v. Dekran, 2012 ONSC 4257 (S.C.J.), the Personal insured the defendant and brought a motion pursuant to r. 13.01 to intervene as an added defendant.  It wished to allege that the accident did not occur or was staged and to crossclaim against its insured.  It preferred this route rather than being added as a statutory third party since s. 258(14) of the Insurance Act prohibits a statutory third party from taking a position incongruous to its insured.

Master Dash dismissed the motion, holding that it was not a proper use of r. 13.01.  One of the purposes of s. 258 is to permit an insurer to contest the plaintiff’s claim in a situation where it denies coverage.  The plaintiff’s action is not the appropriate forum to decide issues between the insured and insurer.  Any dispute could be decided in subsequent proceedings, including a proceeding to recover the statutory minimum paid to the plaintiff. 

Master Dash noted that if the accident was staged, the plaintiff would not be entitled to damages; on the other hand, if the trial court did award damages, it would mean there was a legitimate accident and there would be no basis for a crossclaim against the insured.  In addition, as a statutory third party, the insurer would have a right to discover its insured.

Master Dash refused to follow the decision in Esho v. Dekran, 2012 ONSC 3638 (S.C.J.), where the insurer was added as a defendant.  Now that there are conflicting decisions on this issue, perhaps it will be up to the Divisional Court to provide clarity.

Production of Statements Made Following an Accident

A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.

In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot.  The accident occurred at 8:55 p.m..  The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m.  At this point, she was aware that two people had been injured.  She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind.  The statement was delivered to the adjuster later that day.

On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.

Justice Hockin held that litigation privilege attached to the document.  The property manager knew there was an accident and that two people had been injured.  She believed that litigation would follow.  It did not matter that the defendant was not represented by counsel at the time.  The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case. 

Privilege was not waived.  Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4^th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.

Failure to Add Property Owner as Additional Insured

Many winter maintenance contracts require the contractor to add the property owner as an additional insured on its policy.  But what happens when the contractor fails to do so and the owner is sued?

In Papapetrou v. 1054422 Ontario Ltd., 2012 ONCA 506 (C.A.), the plaintiff sued the Cora Group, alleging she slipped and fell on black ice on its property.  Cora contracted with Collingwood Landscape for winter maintenance services.  In the service contract, Collingwood agreed to name Cora as an additional insured on its CGL policy, but failed to do so.  On a motion for summary judgment, Collingwood was ordered to assume Cora's defence and indemnify it for damages.  Collingwood appealed.  Cora conceded that the order to indemnify was premature so the primary issue on appeal was whether the motions judge erred in ordering Collingwood to assume Cora's defence.

The Court of Appeal set aside the original Order and substituted an Order that Collingwood pay for Cora's defence.

Simmons J.A. held that Collingwood's breach of its contractual obligation to name Cora as an additional insured did not create a duty to defend; rather, it gave rise to a remedy in damages.  The quantum of such damages is the amount Cora will be required to pay for a defence of the claims that Collingwood's insurer would have paid had Collingwood fulfilled its contractual obligations.  The costs would include all of the costs of Cora's defence except for those incurred exclusively to defend claims that do not arise from Collingwood's performance or non-performance of the contract.  Cora was entitled to separate counsel given there were distinct claims against the two parties, which meant there would be an inherent conflict between them.