Defendant Who Crosses Centre Line Prima Facie Negligent

Defendant Who Crosses Centre Line Prima Facie Negligent

The Court of Appeal has set aside a jury verdict that dismissed an action against a defendant who crossed out of his lane and collided with another vehicle.

In El Dali v. Panjalingham, 2013 ONCA 24 (C.A.), the plaintiff was injured in an automobile accident when the defendant lost control of his vehicle on an icy road, crossed the centre line, slid into oncoming traffic, and hit the plaintiff's vehicle.  The plaintiff remained on his side of the road and was able to bring his vehicle to a complete stop.  The police officer who attended the scene decided not to lay charges due to weather conditions.  The defendant did not testify at trial and called no other evidence to explain his driving.

A jury found there was no negligence on the part of the defendant and dismissed the case.  The plaintiff appealed.  The Court of Appeal allowed the appeal and ordered a new trial. The defendant breached s. 148 of the Highway Traffic Act by crossing the centre line of the road and a driver who does so is prima facie negligent.  The driver then bears the onus of explaining that the accident could not have been avoided with the exercise of reasonable care.  The explanation need not come from the defendant, but must come from someone or the defendant will be held at least partially responsible.  The fact the police officer did not lay charges and that there were icy road conditions were not sufficient to support the jury's conclusion.  Defence counsel suggested a 50% apportionment in her closing, which also suggested the defendant bore some responsibility.

Those defending similar claims will have to consider the appropriate evidence to call in order to rebut the onus to explain how the accident occurred without negligence.

New Strain of Norovirus - the Winter Vomiting Bug - On the Rise

Although the flu is on everyone’s minds this season, the winter vomiting bug, or the norovirus, is making its rounds.

The U.S. Centers for Disease Control and Prevention (CDC) reports that the norovirus causes about 70,000 hospitalizations and 800 deaths each year, mostly in young children and the elderly.

Some of the virus' common symptoms include nausea, vomiting, diarrhea and stomach pains. The CDC points out that the norovirus is often referred to as the stomach flu, but it is unrelated to influenza.

So far, there have not been any reports of the norovirus in Reading or North Reading, according to the Health Departments in both towns. 

A new norovirus strain, GII.4 Sydney, was detected last year in Australia.  The strain hit the U.K. and sickened over a million people. It has now reached the United States and this new strain appears to be taking over.

Of norovirus cases reported from September to December, 54 percent have been identified as GII.4 Sydney, according to recently released data.

The first norovirus outbreak was reported in Ohio in 1968. Today, approximately 21 million illnesses are attributable to norovirus in the U.S. each year, reports the CDC. Of those, approximately 25 percent can be attributed to foodborne transmissions. The norovirus can also spread quickly in closed places like daycare centers, nursing homes, schools, and cruise ships.

This hardy virus is extremely contagious. The BBC reports that norovirus is one of the few infections you can catch from a toilet seat. The virus can survive temperatures as high as 140°F, which makes eating raw fish, such as oysters, particularly dangerous.

Noroviruses can live in vomit or stool even before a person experiences symptoms, and up to two weeks after symptoms disappear.  People are most contagious when they experience symptoms and during the first three days after recovery, reports the CDC. 

There is no treatment or vaccine against norovirus. To help prevent contamination, the CDC recommends the following tips:

5 Tips to Prevent Norovirus From Spreading

1. Practice proper hand hygiene

Always wash your hands carefully with soap and water:

    after using the toilet and changing diapers, and
    before eating, preparing, or handling food.
    Alcohol-based hand sanitizers can be used in addition to hand washing. But, they should not be used as a substitute for washing with soap and water.

2. Wash fruits and vegetables and cook seafood thoroughly

    Carefully wash fruits and vegetables before preparing and eating them.
    Cook oysters and other shellfish thoroughly before eating them.
    Be aware that noroviruses are relatively resistant. They can survive temperatures as high as 140°F and quick steaming processes that are often used for cooking shellfish. Food that might be contaminated with norovirus should be thrown out.
    Keep sick infants and children out of areas where food is being handled and prepared.

3. When you are sick, do not prepare food or care for others

    You should not prepare food for others or provide healthcare while you are sick and for at least 2 to 3 days after you recover.
    This also applies to sick workers in schools, daycares, and other places where they may expose people to norovirus.

4. Clean and disinfect contaminated surfaces

    After throwing up or having diarrhea, immediately clean and disinfect contaminated surfaces.
    Use a chlorine bleach solution with a concentration of 1000–5000 ppm (5–25 tablespoons of household bleach [5.25%] per gallon of water) or other disinfectant registered as effective against norovirus by the Environmental Protection Agency (EPA).

5. Wash laundry thoroughly

Immediately remove and wash clothes or linens that may be contaminated with
vomit or stool (feces).

You should—

    handle soiled items carefully without agitating them,
    wear rubber or disposable gloves while handling soiled items and wash your hands after,
    and wash the items with detergent

*According to the Reading Health Department, if you think you have this virus you should stay home. If you are caring for someone with this virus, wash the bathroom regularly.

Flu weather drain blood donation supplies

As flu and frigid weather force many people across the nation to stay bundled up inside, blood banks are reporting donors are canceling appointments and supplies are dropping.

"The American Red Cross is seeing a lower-than-expected turnout,'' says Stephanie Millian, director of biomedical communications at the American Red Cross. "We've even had seven blood drives canceled because of the weather in the Great Lakes area. Flu season is hitting us in other parts of the country. "

While none of the agencies responsible for collecting blood is reporting a shortage, they are experiencing low levels in several types of blood and are encouraging people to give blood if they're healthy.

About 1 in 7 people entering a hospital will require blood transfusions, according to America's Blood Centers. Blood is used to treat accident victims, cancer patients, hemophiliacs and surgery patients.

The greatest need is for O-negative blood, a type often called for in emergencies because it's a type any patient can use, says Millian. Only 7% of people are O-negative.

"We like to keep a five- to seven-day supply of all blood types on hand, and we're under a three-day supply now,'' says Jim Fox, director of communications at the New York Blood Center. Bone-chilling temperatures in New York fell into the teens this week, with wind chills below zero.

"When it's as cold outside as it's been here, most people like to stay indoors,'' Fox says. "But people with leukemia and other cancers don't have that option. They need blood transfusions. When we get weather like we've been having, we start to worry about supplies."

Mother Nature might help out soon. A warming trend is expected next week across parts of the nation. The flu is reported in all 50 states but is leveling off in many, the Centers for Disease Control and Prevention reported Friday. However some parts of the country, especially the Southwest and Northwest, are showing increases.

In Arizona, parts of Texas and in the Northwest, where United Blood Services serves hospitals, it is seeing a drop in donations and a rise in demand.

"We're struggling to fill blood orders for 145 hospitals in the Arizona area,'' says Sue Thew, spokeswoman for United Blood Services in Arizona.

Demand is above normal, Thew said, because hospitals delay many elective surgeries until after the holiday season.

"Hopefully, we can get everyone feeling better soon and back to giving blood,'' says Ashley Messick, communications specialist for United Blood Services. "It's not only people with the flu who are staying away but also their caregivers. We need to restock levels. We're meeting needs now by shifting blood around to areas where it's needed."

If you've had the flu, wait until you no longer have symptoms and are feeling well before you donate, according to the American Red Cross. Go online to make an appointment to donate:

15 health tips you can implement today

The first is to brush your teeth daily. Gum disease not only can cause you to lose your teeth, it can make you have heart problems. Consider this: scientists have confirmed that gum disease likely causes destructive bacteria to flood the blood system. Limit this problem by brushing your teeth often.

Another tip to use today is to cut back on processed sugar. That means most all soft drinks. They are loaded with it. Why cut back on this ingredient ? Large levels of sugar causes quick and damaging levels of insulin to be released into the blood. Your pancreas makes the insulin. If it has to work overtime and you already have a terrible diet your pancrease can become exhausted. When your pancreas becomes exhausted and can not make enough insulin to counteract the level of sugar in your blood, diabetes can result. Stop the abnormal intake of processed sugar and the chances of this will decrease. You can help prevent diabetes in your body by decreasing the amount of processed sugar going into your mouth.

The third tip is to start an exercise routine today. Modern medicine finally found out recently that exercising helps prevent cancer. It also increases your life span. If that is not reason enough, stop reading right here. Just thirty minutes a day of strenous exercise makes a load of difference if your life is an inactive one. Try it.

Listen to people who are not totally obese. It is a fine line, but those who live longer are not of “normal weight” according to Psychology Today. Those who are slightly overweight are more likely to live the longest. This study was done on Canadian people. Their climate is a cold one and likely had something to do with the results. Nevertheless, it is something to think about.

Eat chocolate. I think I heard you say: “Wow !” ? This statement needs some qualification. It is not just any chocolate. Real dark chocolate is high in antioxidants that reduce the effects of free radicals in the body. If you were thinking that you could eat a milky way and have better health, it is just not that way. It must be dark chocolate and have very little sweeteners.

Here is a twin to along with that last tip; consume less artificial sweeteners. There are many that are just plain bad for you. The sweetener called aspartame or nutrasweet is not an ingredient to put into your body. Your body changes the aspartame into formic acid. Guess what else uses formic acid ? Fire ants use this when they bite you. They inject you with this ingredient, which is what they use for poison. It is the reason “fire ants” have “fire”. Why put the poison of fire ants in your body ? You are doing that when you eat aspartame.

Stop smoking cigarettes. While you are at it, include cigars and marijuana with that. You already know why. It can help cause cancer and it also causes others who are breathing in the second-hand smoke to develop cancer. Just stop smoking.

Stop over-indulging in alcohol. This substance is the reason why many have problems with their liver and other areas. Alcohol is acidic and if you are overweight, this can easily cause an acidic atmosphere in your body. This type of atmosphere is the same one that cancer thrives in. Wine taken in modest amounts, about one small glass a day, by contrast, is good for you. Liquors and other strong drinks are not good for much, except for perhaps cleaning your house.

Get at least one hour a day out in the sun. Centenarians ( those who live to be at least one hundred years old ) have a few things in common. Working out in the sun is one of those things. If you work indoors and do not see much sun, change this aspect of your life.

Taking a que from those centenarians, another tip is to start enjoying life. If you want a good health tip this is an important one. One of the common denominators of those who live to age one hundred and beyond is that they are not grumpy. Changing your attitude for the better is good for you.

Eat more fresh fruit and vegetables. This may seem like an impossible task. Most fruit and vegetables in the hands of the Western world come from other countries, and it is not that fresh. This tip is taken again from those centenarians. Many of them eat fruit from a plant grown in their own yard. This is a true “victory garden” for health.

Learn to keep your PH level balanced. The PH level is basic to all health. Cancer likes to have a low PH level to live in. Do you have one ? Learn to use PH paper to check out your own PH level and you will know more about basic health than most people.

Get rid of the blind faith you have in the medical industry. They just are not worthy of it. Read more online. This is something you are doing now, and it such an important health tip I will say it twice; stop thinking that the medical industry has all the answers. They clearly do not. This change in thinking will benefit you greatly, so start today.

Tags easy healthy tricks, health tips,
Two insurers fined $250,000

Two insurers fined $250,000

A California insurer and its sister company are being fined $250,000 for multiple violations of Washington’s insurance laws.

Health Net Health Plan of Oregon, Inc. and Health Net Life Insurance Co., of Woodland Hills, Calif., have signed a consent order jointly agreeing to pay the fine.

The violations include:

• As an illegal inducement to keep customers, the companies offered an unapproved premium holiday – a month of free insurance -- to hundreds of customers. (State law says that insurers must use the rates they file with state regulators.)

• Customers were transferred to new plans with a different company, but were wrongly told that the change was simply a “renewal” of the policy.

• By not telling customers that they had been transferred to a different company, the companies also violated a state law requiring insurers to use their own names.

“I’m all for consumers getting a break on their health insurance premiums,” said Insurance Commissioner Mike Kreidler. “But insurers have to follow the same rules their competitors do. If they say they’re going to charge a particular rate, that’s the rate they should use.”
Litigation Privilege - Production of Lawyer's Notes of Interview

Litigation Privilege - Production of Lawyer's Notes of Interview

A recent case deals with production of statements taken by an opposing party.  It provides a summary of the principles relating to litigation privilege.

In Hart v. Canada (Attorney General), 2012 ONSC 6067 (S.C.J.), the plaintiff brought a motion seeking production of notes that had been made by counsel for the defendant several years earlier when the plaintiff was a potential witness in another lawsuit arising out of the same factual nexus.  The notes appeared to be an almost verbatim translation of the interview.  The defendant argued the notes were protected by litigation privilege.  The Master ordered the notes to be produced and the defendant appealed.

The appeal was dismissed.  Litigation privilege cannot restrict disclosure of an opposing party's statements.  Information or statements that are obtained from an opposing party cannot be confidential from that party.  To the extent a document is a mere recording of information given by the opposing party, it is not subject to litigation privilege, even though it was created with a view to anticipated future actions; however, if the document contains something more that amounts to a solicitor's work product, then it is privileged.  Counsel for the defendant would be permitted to make a proposal to redact certain parts of the document that contained information that was more than simply a record of the plaintiff's interview and statement, such as margin notes, underlining and highlighting.

It appears that the key fact was that the notes contained an almost verbatim recording of the plaintiff's interview.  If the notes contained the solicitor's strategies or theories, the outcome may have been different.
Definition of "Accident" Under the SABS

Definition of "Accident" Under the SABS

How far can the definition of "accident" under the SABS be stretched?

In Dominion of Canada v. Prest, 2013 ONSC 92 (S.C.J.), the insured was washing his car and tripped over a curb sticking out from the wall of his parking garage.  He claimed that his right hand was touching the car as he fell, and therefore he was entitled to accident benefits.  Dominion sought a determination as to whether the incident met the definition of an "accident" within s. 3(1) of the SABS, which defines "accident" as "an incident in which the use or operation of an automobile directly causes an impairment."

Justice McNamara held that the incident was not an "accident".  He used the two part test set out by the Court of Appeal in Chisholm v. Liberty Mutual (2002), O.R. (3d) 776 (C.A.) and Greenhalgh v. ING (2004), CanLii 21045 (C.A.):

(a)  Did the incident arise out of the use or operation of an automobile (the “purpose test”); and
(b)  Did such use or operation of an automobile directly cause the impairment (the “causation test”).

Justice McNamara held that the vehicle was not being used or operated at the time of the incident and was not a direct cause of the impairment.  The use of the car had ended without injury being suffered and tripping over the curb was a new intervening act. The insured was not entitled to accident benefits, showing that there is indeed a limit to how far the definition can be stretched.
Our new, much different website

Our new, much different website

Yesterday (yes, during the Seahawks game, yes, yes) we launched our new, faster, and hopefully much-easier-to-use website.

It's the product of months of testing with a variety of demographics, and the site is designed to be much more intuitive than our former site. On the old site, consumers could complete only 1/3 of the typical tasks we gave them. Now it's over 80 percent, and we're going to keep tweaking things to try to improve that further.

Take a look.
Loss Transfer - Cost of Assessments

Loss Transfer - Cost of Assessments

Early this year, we blogged on a decision by Justice Greer holding that the costs of insurer generated assessments under s. 42 of the SABS are not recoverable under the loss transfer provisions (Wawanesa v. Axa).  The matter was appealed to the Court of Appeal.

The Court of Appeal decision is found at 2012 ONCA 592.  The Court dismissed the appeal.  Section 275(1) of the Insurance Act provides:

The insurer responsible under subsection 268(2) for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which responsibility to pay the statutory accident benefits arose.

Justice Weiler held that the words "in relation to" convey a connection between two related subject matters.  A "connection" must be between statutory benefits paid and the cost of the assessment, and only exists if the ABs were actually paid.  If the assessment only saved some benefits from being paid unnecessarily there would be full indemnification, but no indemnification if no benefits were paid.  The legislature could not have intended such an anomalous result. In addition, the connection should be between insurer generated assessments and ABs paid to the insured, whereas the cost of the assessment is paid to the doctor who conducts the assessment.

Justice Blair wrote a dissenting opinion, preferring a wide scope to the words "in relation to" that would include the cost of assessments.

Giving the dissenting opinion, perhaps this matter will be headed to the Supreme Court for final clarification, especially given the rising costs of assessments.

Our website's about to change dramatically. Here's what agents/brokers/insurers need to know

Our website's about to change dramatically. Here's what agents/brokers/insurers need to know

On Sunday, Jan. 13, we'll be rolling out our new agency website. It looks a lot different. We've tested the design on a variety of consumers and industry professionals, we've overhauled the navigational structure, and we've given the whole site a distinctly different look and feel.

There's one thing we're sure of: The site will be much more intuitive and easy to use. Early testing showed that consumers had a 1 in 3 task completion rate on our current site. On the new version, that jumped to 80 percent. And we hope that further fine-tuning boosts it further.

Here's the important part for agents, brokers and companies: The new site immediately splits users into a "consumer" area for laypersons and an "industry professionals" section for the folks that have to interact with our site for licensing, continuing education reporting, tax filing, financial statements, etc.

Update: And it's live! At the top of the home page, you'll see a tab marked "For industry professionals." There you go.
Two of WA's largest nonprofit health insurers have $2.2 billion in surplus

Two of WA's largest nonprofit health insurers have $2.2 billion in surplus

From a press release we sent out today:
OLYMPIA, Wash. – With two of the state’s largest health insurers sitting on surpluses totaling $2.2 billion, Washington’s top insurance regulator wants to use some of that money to lower costs for consumers.

According to the companies’ most recent financial statements, Regence BlueShield’s surplus has grown to $1.05 billion. Premera Blue Cross’ surplus is $1.15 billion.

“These are non-profit companies,” said Insurance Commissioner Mike Kreidler. “It’s hard to square their billion-dollar surpluses with the fact that families are struggling to afford health insurance.”

Kreidler is proposing legislation that would allow his office to consider surpluses when reviewing nonprofit health insurers’ proposed rates. As things stand now, his staff must ignore them.

“As I’ve said before, it’s like trying to ignore an elephant in the room,” Kreidler said. “And the elephant’s getting bigger.”

The surpluses of both Regence and Premera have more than doubled in a decade. In the first nine months of 2012, Regence’s grew by $60 million. Premera’s grew by nearly $182 million.

“It’s important to remember that these are not reserves, which are set aside to pay future claims,” Kreidler said. “These billion-dollar surpluses are in addition to their reserves.”