Woe To The Insurance Companies? That's Rich

Albert Conforzi - Toronto Personal Injury Lawyer: "Lies, damn lies, and statistics" is a phrase that was popularized in the 19th century by Mark Twain and others. Here's an article that fits the bill:

We take you now to a dark land where fraud is rife, corruption abounds and the government seems powerless. No, not some calcified dictatorship in Africa or South America. This is Ontario, home to Canada’s worst auto insurance system, a vast subculture of lawyers, health-care operators, inept regulators and gaming politicians who cannot or will not come to grips with a regulatory failure that costs motorists billions. 

As the chief executive officer of one of the province’s automobile insurance firms put it, the numbers are staggering. Among Ontario’s 9.6 million motorists, there were 85,000 accident and bodily injury insurance claimants in 2014. According to the industry’s official statistics agency, the average bodily injury claim came to $143,630. By comparison, the average in Alberta is $12,785. The average accident benefit payout was $31,785 in Ontario, compared with $7,895 in Nova Scotia and $3,766 in Alberta.

And so on, with the article drawing largely from representatives of insurance companies or their lobby group to say that insurance companies are trapped in an expensive trap. Indeed, the article could have been a press release from the insurance lobby, as it even throws in the old "ambulance chasing lawyers" red herring as part of the "problem" of injured people trying to get compensation for their injuries.

As a lawyer with "boots on the ground" in personal injury litigation let me tell you that the reality is:

- 85% of all claimants are being treated by insurance companies as minor injuries, with a cap of $3500 for medical and rehabilitation treatment. This has been going on since 2010. Disagree that your injury is "minor?" Get ready for a fight.

- As a general rule, our healthcare system has not funded physiotherapy for motor vehicle accident victims since the late 1980s. That comes out of your pocket. Hence, why you fight for better injury compensation.

- The article does not count what insurers spend on hiring doctors to tell them what they want to hear to limit or deny compensation. Again, you have a fight on your hands.

- The statistics, if they were true, on the number of claimants per clinic in Ontario would mean that no clinic could ever survive financially on 8.8 injured claimants per year. So the statistics as interpreted by the insurance industry don't make sense.

Now it's you against a billion dollar organization that has a legal and medical team standing between you and the money you need to learn how to function again.

While undoubtedly there is abuse within the system (including insurer abuse of the rights of their policyholders through a culture of denying claims until forced to pay), the cost of that abuse has long since been passed on to everyone in the motoring public.

As for those "ambulance chasing lawyers" driving up premiums by extracting large contingency fees, here's a reality check: insured people have to hire lawyers to fight insurer denials. That simple. Insurance companies don't pay the fees for this, the client does. It is not a cost to the insurance companies.

There's also no "chasing" involved. Instead, my phone rings and someone like you tells me that they need help because even though their back is injured and they can't get out of bed to earn a living, their insurance company has told them tough luck, their injury is "minor." Now it's you against a billion dollar organization that has a legal and medical team standing between you and the money you need to learn how to function again.

Finally, the article concludes "some might argue that the insurance industry is using all of this to hide its own problems and profits." Well yes, some might argue that. As Penn and Teller would say -- distraction and misdirection. Benefits have been decimated. Insurer profits are embarrassingly high. It is at the point where you have to believe that they won't stop demanding more reductions to benefits until they can collect premiums and not have to pay benefits at all.

The insurance regime that we have had in place since June of 1990 with all of its iterations and reiterations needs to be blown up and started again from scratch. Next time keep the insurers out of the policy discussions so that victims can be the priority and not insurer profits.

I am a personal injury lawyer with Pace Law Firm in Toronto. Contact me if you have any questions.

Can I Sue Uber After An Accident?

Albert Conforzi - Toronto Personal Injury Lawyer: Uber is a hot topic these days, both for the convenience it provides riders, and the anger it stirs up among professional driving services.

An example of the latter can be found in a $410 million class-action lawsuit that was launched last week by a Toronto taxi driver seeking an injunction against Uber on behalf of all taxi and limousine drivers. The suit alleges that Uber is breaking the Ontario Highway Traffic Act, which requires licenses and permits as prerequisites for picking up passengers for compensation. We will follow the lawsuit as it unfolds.

Suing Uber

As for Uber's popularity among the public, one question that I'm hearing more often is, "If I get in an accident in an Uber car, can I sue Uber?"

The first part of the answer is that there is a difference between Uber Black, the classic option with licensed chauffeurs in expensive sedans, and Uber X, the option where Steve shows up in his 2005 Corolla and gives you a lift. Indeed, Uber is mutating at a very quick pace, with Uber Black, Uber Select, Uber car pools, and even Uber Eats on the menu (they pick up your food).

Let's look at Uber X, which uses regular people driving their own vehicles. Ordinarily, the insurance that all motorists carry for private passenger vehicles in Ontario prohibits carrying passengers for hire. It is a breach of the insurance policy to do so. There is an endorsement that can be purchased to allow for carrying passengers for hire, but it is very expensive, which would defeat the whole point of being an Uber X driver.

If you have an accident in an Uber X vehicle, there is a high likelihood that the driver's insurance company will claim a policy breach. This will severely limit compensation recovery if the Uber X driver is solely at fault.

What Is Uber, Anyway?

As for suing Uber itself, neither Uber nor its employees are owners or operators of the motor vehicle. The drivers are independent contractors. As such, Uber would arguably not have vicarious liability for the operation of the motor vehicle. Additionally, Uber is not even a taxi broker according to the Superior Court decision released at the beginning of July involving the city of Toronto's challenge. But then, that decision was followed by reports of Uber drivers in Toronto facing fines anyway, while a new question about Uber paying HST has cropped up, too. Where's this all going? Good question.

While Uber apparently carries a substantial umbrella policy in case of accidents, access to it may prove to be very difficult, unless the nature of the loss arises from a breach of Uber's obligations regarding background checks for drivers or vehicles. Obviously the entire Uber situation is evolving and access to additional information regarding how the company does business is likely to become more readily available in the near future.

Unfortunately, there's a good chance that we won't know the answer to some of these questions until someone is severely hurt in an Uber car and the case makes headlines. Then we will hear the arguments and see on which side of the law Uber ends up.

I am a personal injury lawyer with Pace Law Firm in Toronto. Contact me if you have any questions.