Claimsaugsept2013

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August/September 2013

DELUGE

Independent adjusters face a surge of claims after a devastating summer of floods

Official Journal of the Canadian Indeépendent Adjusters’ Association

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Contents AUGUST / SEPTEMBER 2013 • VOLUME 7 • NUMBER

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Cover Feature

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12 Deluge Independent adjusters experienced a surge of claims from record flooding in Southern Alberta and the Greater Toronto Area in late June and early July. The losses from epic floodrelated damage to personal and commercial property will represent the costliest natural disaster in Canada.

BY CRAIG HARRIS

Spotlight 22 The Ambassador Granite Claims Solutions’ Marie Gallagher is proud to represent the loss adjusting profession as incoming CIAA president.

BY CRAIG HARRIS

Education Forum 46 Strategic Stakes Like any business, an adjusting firm has to manage its human capital and its stakeholders effectively. The first step is to analyze current strengths and opportunities.

38

News Features 24 Understanding Lloyd’s

36 Good Grief!

Many adjusters think they know the Lloyd’s of London insurance market – but how deep does their knowledge run? How much do they need to understand to participate in this dynamic insurance entity?

Determining psychological injury under the DSM-5.

BY FRED PLANT

Some helpful do’s and don’ts on how to deal with them.

28 Rethinking the Retrofit Who pays for damages caused by illconceived home/building energy retrofits?

BY JASON GUIHAN

30 Double-Sided Rule on Disclosure?

FSCO interpretations on surveillance practices leave a lot to be desired.

BY DANIEL STRIGBERGER

32 Contending with Chronic Pain How insurers can find the right expert to diagnose this condition.

BY DR. JASON MAZZARELLA

BY JAMES DOWLER AND KRISTA PROCKIW

38 Customers from Hell

BY JEFF MOWATT

40 Untangling a Web of Deception How to effectively use surveillance to determine plaintiff credibility.

40 Departments

BY ROBERT MCGLASHAN AND BRITTANY SUD

4 First Notice

44 Consent Forms: To Sign or Not to Sign?

48 On The Scene

It’s a question that is on the rise in insurer examinations.

BY DEANNA GILBERT

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Columns 10 President’s Message 46 Education Forum

34 Avoiding the Acronym Has “insurance-speak” become your default communication style?

BY CAROLYN WILBY

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• first notice FN Premiers call for better disaster mitigation Canada’s premiers are calling on the federal government to create a “distinct Canada-wide disaster mitigation infrastructure initiative,” as well as ensuring liability insurance requirements for railroads are sufficient.

The cost for a new mitigation program would be split evening between the provincial/territorial governments and the federal government, the Council of the Federation said in a statement following its summer meeting in Niagaraon-the-Lake, Ont. in July. The initiative should be separate from other programs such as the Building Canada Plan, the group of provincial leaders noted.

The premiers also called for the Canadian government to maintain the current level of financial assistance available under the Disaster Financial Assistance Arrangements. They are asking their federal counterparts, among other things, to improve search and rescue response times, and conduct a thorough review of marine safety.

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August/September 2013

For example, the council says “federal regulations should better address remediation of shipwrecks in Canadian waters and the federal government should take responsibility for the removal of shipwrecks due to inherent hazards.”

They also called upon the federal government to “reconsider its decision to close a number of Marine Rescue Sub-Centres and Marine Communications Traffic and Service Centres throughout the country.”

The leaders also said that broadcasters should work more collaboratively with the provinces and territories to establish a mandatory public alerting system, pointing out the particularly poor emergency management in Aboriginal and remote communities.

The premiers also agreed during the meeting that there is a “clear lack of information on hazardous materials travelling on the rail network,” after discussing the recent disaster in Lac-Mégantic, Que. l

Alberta gets 5% increase for mandatory auto insurance Alberta’s Automobile Insurance Rate Board will allow premium levels for mandatory auto insurance to increase by up to 5%, effective Nov. 1, it announced in late July. Insurance companies have the option to implement all or part of that increase over the next three years.

The average cost of claims for 2012 and the estimates for prior years show “significant increases,” according to the AIRB, although it said the frequency of bodily injury claims is not an issue.

“We knew that an increase would be necessary, but we wanted to take a more measured approach in order to maintain balance in the system,” said Alfred Savage, AIRB chair. “A 5% increase, which works out to on average $30 per year, reflects current insurance trends while still keeping premiums at a reasonable level.”

The AIRB announced in April that it would be seeking stakeholder comments on the annual rate change.

The decision applies only to mandatory coverage, which is required by law and includes third party liability and accident benefits coverage. It does not include optional collision or comprehensive coverage. Those premiums are set by individual insurance companies and monitored by the board. l

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• first notice FN First notice of loss sets tone for claims experience The first notice of loss call a customer makes to their insurance provider after a collision or having vehicle damage “sets the tone” for their overall claims experience, notes a new satisfaction survey from J.D. Power.

That first phone call averages 18 minutes, according to the study, based on responses from 2,458 auto insurance customers in Canada who settled an auto insurance claim within the past 18 months.

“If that initial call goes well, odds are good that the claims process will go well and also bodes well for the long-term relationship with the customer,” said Jeremy Bowler, senior director of the insurance practice at J.D. Power.

Settlement remained the most important factor in the claims experience, the study notes. However, claimants who received an explanation during that first call with their provider about what to expect from the process reported being “significantly more satisfied” that those who didn’t, it says.

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

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

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

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

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

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

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

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

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While a majority (87%) of claimants received an explanation, overall satisfaction declined by a substantial 169 index points (based on a 1000-point scale), on average, when claimants didn’t receive an explanation of the process, J.D. Power notes.

Overall satisfaction was also higher when insurers answered all claimant questions during that first call, according to the study. Satisfaction among claimants who had all of their questions answered during the first call averaged 810, compared with an average of 651 among claimants who didn’t have their questions answered.

Overall, 90% of claimants were satisfied with their settlement, which is the largest contributor to overall satisfaction with the claims process, according to J.D. Power. However, when expectations weren’t met, settlement satisfaction declined dramatically, by more than 250 index points, on average, the study suggests. l

Claims Canada

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August/September 2013

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

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

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

www.claimscanada.ca

13-08-22 8:59 AM

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Message from the President La Plume du Président JOHN D. SEYLER

The response to the Calgary flooding in June and the storms in Ontario in July showcased the best in our citizens and the insurance industry alike. The residents of Alberta pulled up their bootstraps and exhibited that Western resilience by pitching in and tearing out flooded basements. There were numerous stories in the media showing people helping people.

CIAA members rose to the challenge. What the public doesn’t always know is how claims professionals uproot and leave their homes and families and begin the work of helping restore the lives of those who lost so much. I am proud of how our members mobilized and it is with quiet confidence and skill that we hone our craft achieved through education and years of experience.

Events like these reinforce the value independent adjusters bring their clients by providing superior customer service to their affected policyholders.

Our association is rife with experts and specialists in all lines of business. An impressive aspect of our group is how members support each other. It is not an unusual event when one member calls upon another to solicit advice or assistance. Across the country our regional executives are always looking to recruit claims professionals with vision and a commitment to their profession.

Life keeps us all very busy, but you need only volunteer a few hours a month to make a real change to our industry.

My year as President of the CIAA has been one of challenges and I am always impressed with what a relatively small group of volunteers can accomplish. Our member firms should rest assured that we provide value for their membership fees. One example is “Claims Canada,” the Association’s official publication. This magazine is one which educates and informs the claims community. CIAA’s profile has been raised to the next level since partnering with our publisher Paul Aquino and his colleague Steve Wilson. They are both an integral part of the industry as a whole and their credibility and professionalism are respected and very much appreciated.

I conclude my term at CIAA’s Annual Conference in Banff in September. I will be turning over the reins to my friend Marie Gallagher and I am confident she will achieve unparalleled success. I recommend that you 10 Claims Canada

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August/September 2013

Nos citoyens, ainsi que l’industrie de l’assurance, ont démontré le meilleur d’eux-mêmes par leur réponse devant les événements des inondations de Calgary en juin et des orages en Ontario en juillet. Les résidents de l’Alberta se sont pris en main et ont démontré toute la résilience dont sont capables les gens de l’Ouest en aidant à la démolition des sous-sols inondés. Plusieurs récits d’entraide ont été présentés dans les médias.

Les membres de la CIAA ont relevé le défi et ce que le public ignore parfois, c’est de quelle façon les professionnels en sinistres quittent foyer et famille et se déplacent pour commencer les travaux qui aideront ceux qui ont tant perdu à reprendre le cours normal de leur vie. Je suis fier de la façon dont nos membres se sont mobilisés et c’est en toute confiance et compétence que nous avons affiné notre art grâce à la formation et à des années d’expérience. Les événements comme ceux-ci ajoutent à la valeur que les experts en sinistres indépendants apportent à leurs clients en fournissant un service à la clientèle supérieur aux souscripteurs touchés.

Notre association comprend des experts et des spécialistes de tous les secteurs d’activités et l’un des éléments les plus impressionnants est la façon dont les membres se soutiennent mutuellement. Il n’est pas rare qu’un membre en appelle un autre pour lui demander conseil ou pour obtenir de l’assistance. Partout au pays, nos directeurs régionaux cherchent toujours à recruter des professionnels en sinistres qui ont une vision et qui sont engagés envers leur profession. Nos vies sont toutes très chargées, mais il suffit de donner quelques heures de son temps par mois pour changer véritablement notre industrie.

Mon année passée en tant que président de la CIAA fut remplie de défis et je suis toujours impressionné par tout ce qu’un relativement petit groupe de bénévoles peut accomplir. Nos cabinets membres peuvent être assurés que nous offrons de la valeur ajoutée grâce à vos frais d’adhésion. La publication officielle de l’association, « Claims Canada », en est un bon exemple. Le magazine éduque et informe la communauté des assurances et le profil de la CIAA est passé à un niveau supérieur depuis que nous collaborons avec notre éditeur, Paul Aquino, et son collègue, Steve Wilson. Ils font tous deux partie intégrante de l’industrie dans son ensemble et leur crédibilité et leur professionnalisme sont respectés et grandement appréciés. www.claimscanada.ca

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check out the traditional “passing of the hat” picture in the next issue of Claims Canada, which is presented to ensure each president starts their term with a sense of humility.

One of the perks of the office is the ability to use this column as a platform. Congratulations to my business partner Tammie Norn on being elected President of OIAA for 2012 – 2013. The OIAA is fortunate to have such an inspiring person leading their association. Her support while I dedicated my time to CIAA is greatly appreciated. Finally, I want to offer my gratitude to CIAA Executive Director Pat Battle. She is the glue holding the association together. It has been said before but it is a fact: Pat and her assistant Anna Sonta make the wheels of our association turn smoothly and effortlessly.

To all our members, thank you for allowing me to serve such a great group of professionals. To the insurers, I recommend when you need an adjuster the ideal choice is a CIAA member to ensure a committed Insurance professional is on your side! n

Mon mandat se terminera lors de la conférence annuelle de la CIAA, qui aura lieu à Banff en septembre. Je passerai le relais à mon amie Marie Gallagher et je suis persuadé qu’elle obtiendra un succès sans précédent. Je vous conseille de surveiller la traditionnelle photo de la « passation du chapeau » dans la prochaine édition de Claims Canada, qui est présentée pour s’assurer que chaque président amorce son mandat avec le sens de l’humilité.

Un des avantages de la présidence est d’avoir la possibilité de se servir de cette chronique comme tribune. Félicitations à ma partenaire d’affaires Tammie Norn pour avoir été élue présidente de l’ACEI pour 2012-2013. L’ACEI est chanceuse d’avoir une personne si inspirante à la tête de son association. Son soutien pendant que je consacrais mon temps à la CIAA est grandement apprécié. Finalement, je souhaite exprimer ma gratitude à la directrice générale de la CIAA, Pat Battle. Elle est la colle qui maintient l’association unie. Cela a déjà été mentionné, mais c’est un fait. Pat et son assistante, Anna Sonta, font tourner la roue sans effort.

Je remercie tous nos membres de m’avoir permis de servir un si merveilleux groupe de professionnels. Aux assureurs, je recommande ceci : lorsque vous avez besoin d’un expert en sinistres, un membre de la CIAA est le choix idéal pour vous assurer d’avoir un professionnel de l’assurance dévoué à vos côtés. n

NATIONAL EXECUTIVE 2012-2013 2011-2011 PRESIDENT John D. Seyler, CIP ProFormance Group Inc. 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 • Fax: (905) 238-2735 E-mail: jseyler@prospecialty.ca 1ST VICE-PRESIDENT Marie C. Gallagher, FCIP, CRM Granite Claims Solutions 71 King Street, Suite 204 St. Catharines, ON L2R 3H7 Phone: (905) 984-8282 • Fax: (905) 984-8290 E-mail: marie.gallagher@graniteclaims.com 2ND VICE-PRESIDENT E. Grant King, BA, B.Ed., CIP Crawford & Company (Canada) Inc. 120 – 237 Brownlow Avenue Dartmouth, NS B3B 2C7 Phone: (902) 468-7787 • Fax: (902) 468-5822 E-mail: Grant.King@crawco.ca SECRETARY Paul Hancock, B.Sc., CIP Crawford & Company (Canada) Inc. 300 – 123 Front Street West Toronto, ON M5J 2M2 Phone: (416) 867-1188 Fax: (416) 867-1925 E-mail: Paul.Hancock@crawco.ca

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TREASURER Russell Fitzgerald, CIP Kernaghan Adjusters Limited 203 – 4246 97 Street N.W. Edmonton, AB T6E 5Z9 Phone: (780) 488-2371 Fax: (780) 488-0243 E-mail: rfitzgerald@kernaghan.com

DIRECTOR James B. Eso, BA, CIP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 • Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca DIRECTOR John Jones, BA Granite Claims Solutions Suite 300, 5915 Airport Road Mississauga, ON L4V 1T1 Phone: (905) 671-3164 • Fax: (905) 671-1889 E-mail: john.jones@graniteclaims.com

PAST-PRESIDENT Greg G. Merrithew, CIP, FIFAA Arctic West Adjusters Ltd. 201 – 5204 – 50 Ave. Yellowknife, NT X1A 1E2 Phone: (867) 920-2212 Fax: (867) 873-2244 E-mail: gregm@arcticwest.ca EXECUTIVE DIRECTOR Patricia M. Battle Canadian Independent Adjusters’ Association/ L’Association Canadienne des Experts Indépendants Centennial Centre, 5401 Eglinton Avenue West, Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Toll Free: 1-877-255-5589 Fax: (416) 621-7776 E-mail: pbattle@ciaa-adjusters.ca

DIRECTOR Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 • Fax: (416) 492-5657 E-mail: cwalker@maltmans.com DIRECTOR Albert Poon, CIP Cunningham Lindsey Canada 1102 – 50 Burnhamthorpe Rd. W., Mississauga, ON L5B 3C2 Phone: (905) 896-8181 • Fax: (905) 896-3485 E-mail: apoon@cl-na.com

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DELUGE

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Calgary Stampede were also severely damaged, although the tradition continued as the city banded together and hosted the world-famous event in July.

Most residents have now returned to their homes and initiated the process of inspection, damage assessment and insurance appraisal/ claim filing. In severely affected areas, such as High River, this process is ongoing.

Approximately 5,000 insurance/ claims personnel were deployed in the region, including rapid response from several members of the Canadian Independent Adjusters’ Association.

The CIAA reminded insurers and other partners that it is equipped to mobilize their Catastrophic Response Team to the affected communities as a result of the devastating events in Southern Alberta. The team provides instant electronic access to independent adjusters when catastrophic events strain company resources, as well as an expedited licensing process for the seamless mobility of adjusters in times of emergency.

One early estimate of total economic losses by BMO Capital Markets put the preliminary damage from the Alberta floods between $3-5 billion.

A.M. Best estimates total insured losses somewhere between $1- 3.75 billion. A preliminary report from Property Claims Services Canada was cited by Alberta Premier Alison Redford in late July estimating insured losses of $1.3 billion. Insurance sources say that number will certainly rise in the months ahead as the claims situation is fluid and developing.

The dry numbers do little to paint a picture of the devastation in many cities and communities in Southern Alberta. David Riddell, president of Calgary-based adjusting firm Canadian Claims Services, says the flooding really started on Wednesday, June 19. With his main office outside of the mandatory evacuation zone, he made the call to keep his headquarters open that weekend and even extended his boardroom facilities to a local broker partner.

“The level of flooding and the number of people affected were un-

precedented,” Riddell says. “In certain areas of Calgary, such as Elbow Park and Riverdale, it was like a war zone. Access was difficult or restricted by emergency personnel. Our adjusters had to park their cars, and then make their way on foot past debris.”

Mike Koch, national property/ catastrophe manager, Crawford and Company (Adjusters) Inc., happened to be in Calgary in mid-June on a branch visit. “I can recall going down to one of the bridges over the Bow River and seeing the water coming up to the trusses, with all these swirling eddies and a strong undertow,” Koch says. “I looked at my colleague and we both said, “this is going to be bad.’ We were right.”

Calgary was hit hard, particularly communities like Inglewood and Sunnyside. However, the city seemed to recover fairly quickly and got its businesses and residents back on their feet as quickly as possible.

Other areas, such as High River, were not as fortunate. The Alberta government lifted the local state of emergency in High River July 12, a

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little more than three weeks after the initial flooding. Many residents, such as those in the community of Hampton Hills, returned to find severe damage and, in many cases, uninhabitable properties. Mould and the dangers of disturbing asbestos in any rapid teardown became very real concerns in the weeks following the flood, and continue to this day.

“We did not have access to High River until one week after the flood,” says Michael Morris, vice president, national operations for Cunningham Lindsey. “And when we did get in, there were some health issues for our adjusters to contend with, such as mould, structural safety of the buildings and potential asbestos issues.

We had to make sure our adjusters were properly prepared. Many of the personal and commercial properties were total losses.”

“There were some areas, such as High River, that were blocked off for several weeks and under civil authority in a state of emergency,” notes Trent Buchanan, Granite Claims’ Kelowna branch manager, who pre-

pared the firm’s Calgary Command Centre. “Getting to the affected areas was a typical challenge. In some cases, roads were closed and our adjusters could not get in.”

It was not just access that presented challenges for adjusters on the scene in Southern Alberta. Coverage for homeowners varied according to the wordings and applications of the individual insurance company. While overland flood is clearly not covered under such policies, sewer backup is available via endorsement. However, the wordings for sewer backup are not consistent from one insurance company to the next.

“There was and still is confusion about how insurance policies will respond to the situation,” Riddell says. “It has been well documented that some insurers are covering in part or in whole sewer backup, while other companies have stuck closely to policy wordings and denied certain claims. This has generated a lot of questions from consumers.”

Widespread media reports and social media commentary pointed

to consumer confusion and, in some cases, visible anger with denied claims. Several insurance companies were targets of so-called “name and shame” public campaigns with the aim of trying to get companies to change their positions on coverage decisions.

One of the main sources of ambiguity involved the interpretation of direct/indirect wording related to water damage and sewer backup. Some insurers had the following descriptions of excluded coverage in their homeowner insurance policies: “Any loss, damage or expense caused directly or indirectly by flood reaching your premises . . . even if that cause of loss operates concurrently or sequentially in combination with other causes of loss or damage that are insured.”

The ongoing question for many was whether companies would stick rigidly to this, or be flexible in interpretation to benefit policyholders.

Some insurers reconsidered the strict application of this wording and covered claims for sewer backup. In other

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cases, insurance companies have applied this wording, at least partly due to treaty agreements with their reinsurers.

“Insurers had to determine how their own coverage applied in certain situations,” Koch says. “You essentially had three moving parts. One, where there was clear evidence of overland flood, it was a denied claim situation. If there was a concurrent cause issue, where you couldn’t tell if it was

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overland flood or sewer backup, some insurers were granting coverage, as clearly as they could separate the two.

For example, this could be up to the floor joists of the basement. And third, if it was clearly sewer backup and coverage was purchased, the insurers covered it according to the terms and conditions of their policies.”

Sources note that they are contracted to handle losses according to the instructions of their insurer clients.

August/September 2013

“As independent adjusters, we have to adjust claims according to the client’s instructions and under the terms and conditions of the policy,” Morris says. “Policies are different and we had to assess each loss on an individual basis. In some cases, the cause of the loss could have been from multiple sources.”

“As adjusters we are given different instructions on how to handle claims,” echoes Buchanan. “In fact, that may have altered over the course of the flooding from late June to July.

Some insurance companies took a second look at their initial response and decide to extend sewer backup coverage in certain situations.”

Buchanan adds that “the key thing for adjusters was remaining completely flexible and gathering the right information the first time, so you didn’t have to keep going back. If a company changed its coverage position, you could use that information to determine if a particular claim was going to be covered. In some cases, it was obvious – if you have 8 feet of water outside your door, then it is overland flood. But in other cases it involved a more careful damage assessment.”

For those not covered by insurance, the Alberta government announced details of its Disaster Recovery Program (DRP) on July 28. The DRP provides financial assistance for uninsurable property damage, loss and other expenses to homeowners and tenants, not-for-profit organizations, institutions and condo associations, small businesses (20 or less full-time employees) and agricultural producers. The government also gave details of the funding formula for determining financial assistance payments.

Alberta Finance Minister Doug Horner confirmed that funding under the DRP for homeowners will be apart from any amounts received as insurance payments. However, each case will be judged individually – there could be a claw-back if insurance covered something also eligible under the DRP. “We are getting a lot of questions about the government’s DRP and how that will apply to uncovered losses, so

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there is a fair amount of confusion,” says Riddell. “Some people have already started to tear down and even rebuild. How that will play out with mould, remediation, and policy decisions about rebuilding in flood hazard areas is very tough to figure out. It is becoming a bit clearer, but there are still lots of questions about the DRP and insurance coverage.”

Another source of personal claims in the Alberta flood was damage to automobiles. Water damage to cars is usually covered if comprehensive or all-perils car insurance coverage has been purchased, although this coverage is not mandatory. Again, this coverage is being determined by insurance companies on a case-by-case basis.

In early August, Insurance Bureau of Canada launched VIN Verify, an online, searchable database of vehicles reported as damaged and branded as non-repairable due to flood.

With help from participating member companies and government agen-

cies, the list will help keep disasterdamaged vehicles off the roads and protect Canadian consumers. Drivers can use this free service to check whether a vehicle has been reported as non-repairable.

On the commercial side, sources say the assessment and claims process has been clearer due to the prevalence of overland flood insurance coverage for businesses, particularly medium to large clients. There was extensive damage to commercial property, particularly to mechanical equipment, electrical systems, elevators and vehicles – all of which tend to be on lower floors of buildings.

In addition, business interruption policies, which typically “piggyback” on commercial property coverage, are being applied to individual situations.

B.I. policies are normally triggered when there is a physical loss directly caused by a named peril in the policy.

There has been some debate about the “proximate cause” of the loss and whether damage was caused by flood

or other sources, although adjusters say they have experienced few problems or delays on the commercial side.

“I think the commercial coverage has been more straightforward,” notes Morris.

“Commercial claims all flowed in about the same time, whether small, medium or larger businesses,” Koch says. “Every business insurance policy has its own terms and conditions; they are very specific to the individual insurer.”

One area of stated concern for the Alberta government has been the recovery of small business. Initial estimates are that up to 1,500 small businesses were directly damaged by the floods. As well, about 800 not-for-profit groups, First Nation businesses and agricultural enterprises were affected.

Industry figures show that approximately half of small businesses have purchased overland flood coverage.

On July 23, Minister Horner announced a financial assistance pro-

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gram for small businesses, agricultural producers and not-for-profit groups called “Hand-Up.” The plan involves two loan and interest rebate programs guaranteed by the province and offered through financial institutions and the Agriculture Financial Services Corporation (AFSC).

A separate Small Business Rebuilding program was also announced by Minister Horner. This program, which is complementary to the government’s DRP and Hand-up Plan, applies to small businesses with 21 to 50 full time employees and gross revenues less than $15 million. The businesses must have been operating in the flood hazard zone and suffered direct damage from the flood.

In general, adjusters say the situation in Alberta is slowly but surely stabilizing, as the province looks to medium-term recovery. The insurance industry is playing a key role in that recovery as the damage covered by private insurance versus government assistance gradually becomes clarified.

“At Crawford, we had a team of CAT adjusters on the ground plus our local branch has stepped up to the plate,” Koch says. “The claims are progressing as they should given the magnitude of the event.

Riddell observes that the flood presented a real-life test to the resilience of the residents of Southern Alberta, as well as to the insurance industry.

“It has been an interesting exercise,” he notes. “In my discussions with insurance companies, which have been daily to several times weekly, people are already starting to ask what lessons we have learned as an industry.

What could we have done differently or better? One thing that has stood out is the importance of business continuity plans, especially for us as adjusters.”

The GTA rainstorm on July 8 represented a markedly different CAT event than the Southern Alberta flooding. With record rainfalls that even exceeded the amount dropped

by Hurricane Hazel in 1954, the flash

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August/September 2013

flood that ensued was intense but short-lived, as opposed to the lengthy damage caused by the river surges in Alberta. The majority of damage in the GTA occurred to roadways, public infrastructure and residential properties, particularly basements.

“Speaking for Cunningham Lindsey, the majority of claims we have seen are for sewer backup to residential properties,” Morris observes.

“While the vast majority of claims came in within the first 72 hours, we are still seeing some late losses being reported.”

Sources note that one of the more pressing issues post-flood in the GTA was the number of qualified contractors, who were already stretched thin by the Alberta surge in demand for restoration work. In some cases, contractors from Atlantic Canada and Quebec have stepped in to help with emergency restoration and recovery efforts.

“You can imagine that a lot of contractors had gone out to Calgary and had to re-deploy back to Toronto to respond to the situation there,” Crawford’s Koch says. “There have been some challenges with contractors and availability, especially when it comes to basements, which today are both living and storage spaces.”

With the extensive damage wrought by both the Southern Alberta and GTA flooding, one thing is for certain – the issue of severe weather and water damage has become a major issue for politicians, consumers and the media. One of the buzzwords that quickly emerged from the flood aftermath is mitigation, followed closely by infrastructure.

It didn’t take Alberta Premier Alison Redford long to make policy changes to the province’s disaster assistance program, along with future mitigation measures. On July 12, her government announced a new approach to flooding that includes terms and conditions on eligibility for disaster relief in “flood risk” and “flood fringe” designated areas of Alberta. Specifically, the new measures outlined that: • Funding from the Disaster Recovery Program (DRP) will be available www.claimscanada.ca

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to homeowners within a floodway for rebuilding or relocating to a new location outside a flood risk area; • Funding from the DRP will be available for specific mitigation infrastructure to protect buildings in flood fringe areas; • Any land made available by Albertans moving out of flood risk areas will be used for municipal flood mitigation or public recreational use;

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• In addition to the eligible expenses, additional funding will be available for people with heavily damaged homes in flood fringe areas to use for flood mitigation purposes; • Homeowners in a flood fringe who do not implement mitigation measures to protect against a 1-in-100 flood event will not be eligible for DRP funding in the event of future flooding (homes and businesses currently in floodways, and those

August/September 2013

who utilize DRP funds, will have a notation on their land title to ensure future owners of the land are also informed); and • Legislative changes that the government will introduce in the fall will require municipalities to no longer approve future development in floodways.

In the aftermath of the Sothern Alberta floods (and to a lesser extent, the GTA flood), public and media discourse made frequent mention of the absence of a national flood insurance program. Indeed, Canada is the only G20 country without such a public-private program for flooding, as most public funds in the past have been directed to disaster relief.

As many in the industry already know, a public flood insurance plan is a complex subject, with a range of potential solutions. Many flood programs in other countries, such as the United States and United Kingdom, face high debt loads and require massive infusions of taxpayers’ dollars.

As flood-related losses continue to garner media and political attention, the focus of the insurance industry is increasingly turning to more accurate, sophisticated floodplain mapping and investments in infrastructure (especially sewers and water mains), as well as flood mitigation measures. However, as is the case in Alberta, provincial and municipal zoning laws may need to change to reconsider the costs of building in highrisk flood zones. And post-disaster funding rules on what is and what is not covered under recovery programs would also need to be consistent and well-established. Without clear discussions on these principles, a public-private flood insurance program would be a tough sell.

In the end, someone pays for the damage caused by extensive flooding. Residents, business owners, insurers and governments in Alberta and Ontario (and Ottawa) will be figuring out precisely how and how much in the months and possibly years ahead. 

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Ambassador Granite Claims Solutions’ Marie Gallagher is proud to represent the loss adjusting profession as incoming CIAA president.

BY CRAIG HARRIS

W

hen asked about perceptions of her upcoming year as president of the Canadian Independent Adjusters Association, the gregarious Marie Gallagher is forthright about her role.

“I am an ambassador; I love this industry,” she says.

“Whether it’s attending monthly CIAA meetings or CIAA’s annual general meeting, which I’ve been going to for over 20 years now, I really feel like our members have something in common – a bond. We are all competitors, but we are still part of the same family.”

Gallagher is, in fact, an actual ambassador for the Insurance Institute of Canada’s Career Connections program. For years, she has volunteered to serve as a career mentor and presenter, and to establish positive relationships among youth, teachers and the insurance industry. As an ambassador, she has had the opportunity to share her career and education journey in classrooms and at secondary, post-secondary and community career events across Southern Ontario.

“We already know from surveys done by the Insurance Institute that that our workforce numbers are declining,” Gallagher observes. “This is a huge overall industry concern – how do we recruit people into our industry, train them and move them up? Through the ambassador program, we inspire and enlighten younger people and career changers about the wonderful opportunities in the insurance business.”

For Gallagher, the affinity with loss adjusting was felt at an early stage of her career. She started in an administrative capacity with Markham, Ontario-based brokerage CG&B Group in 1983. Gallagher was moved into a claims role at the brokerage, “and I knew right away claims is where I wanted to be. It felt comfortable to me, helping people at a time of need. I enjoy investigating and settling claims.

As a Lloyd’s of London coverholder, CG&B used independent adjusters to manage claims. One of those firms was Ponton Coleshill Insurance Adjusters.

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August/September 2013

“They were one of the few adjusting firms handling claims for that account,” Gallagher recalls. “I was reading the reports and asking a bunch of questions: what does subrogation mean, what does salvage mean? The adjusters at Ponton Coleshill who were reporting to me took the time to explain and never made me feel embarrassed for asking.”

Three years later, Gallagher went to work for Ponton Coleshill (now Granite Claims Solutions), in Toronto. Then in 1990, on a whim, she suggested starting up a branch office in her hometown of St. Catharines, where she had been commuting from for over four years. Shortly after, the principals came back and said yes. “I knew they did it for me,” she says.

“That is the kind of company they are; they put their people first.”

In fact, long-term employee retention is something that Gallagher says is a key aspect of Granite Claims Solutions’ corporate culture. “People who join us tend to stay with us. www.claimscanada.ca

13-08-21 2:57 PM

I know that I have benefited a great deal from some mentors huge issue for adjusters,” Gallagher says. “Keeping up with who have been with us for a long time, such as Lee Axt and technology is a big expense that directly impacts the bottom Doris Jones. That employee commitment, development and line, especially for some of our smaller members. They have loyalty is something that I am proud of.” to comply with insurance company systems, online reporting Today, Gallagher is the branch manager of Granite Claims and constant requests for feeding and availability of data.”

Solutions’ St. Catharines office, where she manages a team of Independent adjusters have to work on partnerships five adjusters and support staff. She is still active in day-to- with insurance companies on far more than just technolday adjusting and manages a steady volume of claims files. ogy, Gallagher observes. “We work with various insurance Licensed in all lines of business, Gallagher says she had to companies and different corporate philosophies and how take a leap of faith when moving to the branch office to han- they choose to use independents, whether as regular partdle a wider variety of losses, away from her specialization at ners or as overflow in a catastrophic event,” she says. “To the time in automobile claims. some insurers, we are a necessary evil, but I think we should “As an adjuster, it is really about being thrown into the be seen as a valuable ally. We are there when they call us and deep end and sink or swim” she says. “But I thrive on that.” we are able to hit the ground running with our response and The learning curve for Gallagher was complemented by expertise.” some personality traits that have served her in good stead as Those insurance companies that only use independent a loss adjuster. One such characteristic is a natural curiosity. adjusters for major disaster claims may be penny wise and “My mother used to tell me that I am too nosy for my pound foolish, Gallagher contends. “As one of our former own good, and I ask too many questions,” presidents said, you can’t just use us for Gallagher says. “What I learned as an adCAT losses,” she notes. “We need constant juster was that what I then perceived as a support to train our people and let them It is not liability is actually an asset. I’m not afraid gain experience on the smaller claims we just the executive all cut our teeth on. If they don’t give us to ask questions. Many clients will hire me because they know I am not afraid to dig, that work, we will not be there for those committee, seek information and get to the root of the bigger losses.” but all those problem. Now, there may not be a probGallagher sees the CIAA as having a lem, but when there is I will go after the leadership role in strengthening the indepeople carrying information. I have had private investigapendent adjusting profession. She notes on efforts tors ask me how I got information on a file, that the strategic direction of the associaand my response was simple: I asked for it.” will continue in the same direction, behind the scenes tion Another important quality for adjustbut one of her key goals for the upcoming to help move ers is empathy, Gallagher says. “You have year is to focus on member recruitment to to have a good read or sense of people – do ensure the widest reach possible.

CIAA and our people trust you, can they share informa“We are professional loss adjusters who strategic tion with you?” require a lot of education and are licensed She relates a personal incident where by the government,” she asserts. “Any othinitiatives her home was broken into, and several er profession, whether that is engineers, forward.

Royal Doulton figurines (gifts from her architects or chartered accountants, are father) were among the possessions stoproud to belong to a their professional aslen. “Until you experience it, it is hard to sociation. I don’t understand why we still put yourself into their place,” Gallagher notes. “You learn have independent adjusting firms in Canada who have not what peoples’ priorities are; what they are dealing with at the embraced the opportunity to belong to our professional astime and their ability to cope. You have to meet people on the sociation. I believe there is something more we can do as an level they are at. I think a big part of our job as adjusters is to association in this area.” determine where the person is at, what they need at the time The emphasis on a wider reach will also extend to volunand to respond accordingly.” teers within the CIAA, according to Gallagher. “I am hoping These traits will allow loss adjusters to face many of the that in this upcoming year I can instill in all of our volunkey challenges in the current insurance industry environ- teers just how important their ongoing and dedicated parment, she comments. And one of the main concerns is time ticipation is,” she concludes. management.

“It is not just the executive committee, but all those peo“Today, we have so much coming at us, so fast, all at the ple carrying on efforts behind the scenes to help move CIAA same time,” notes Gallagher. “We are expected to be available and our strategic initiatives forward. Our volunteers matter.

24x7x365 – we are on call much more than most professions. They may not perhaps get a lot of recognition, but we need We may have a bit of a reprieve when it is someone else’s turn their input, thoughts and ideas, especially younger people. to take the pager, but you can’t really ever truly get away from There are a lot of members I think who just assume they can’t make a difference, but they can if they get involved. I the demands of our job.”

The rapidly changing pace of technology is another fac- guarantee there is always something to volunteer for.” tor pushing adjusters to adapt. “Information technology is a Spoken like a true ambassador. 

“

“

www.claimscanada.ca

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13-08-21 2:58 PM

Understanding Lloyd’s

Many adjusters think they know the Lloyd’s of London insurance market – but how deep does their knowledge run?

How much do they need to understand to participate in this dynamic insurance entity?

BY FRED PLANT

(This is the first in a two-part series on Lloyd’s of London and implications for Canadian Independent Adjusters) Lloyd’s of London is a famous, even venerable insurance brand.

But behind the tradition and history of this market are several misconceptions. One of the first is that Lloyd’s is an insurance company similar to other firms, with a singular underwriting and claims department.

Lloyd’s is, in fact, a series of underwriting syndicates. If you go to the Lloyd’s building at One Lime Street in London (as I did recently), you will see several groups of desks, also known as underwriting “boxes.” Each box has a specific risk appetite, such as aviation or sports, and underwriters consult constantly with brokers on submissions. This immediate access to decision-makers means that answers on whether a risk can be placed are made quickly, enabling the broker to provide fast coverage solutions. In some ways, it is like a department store of risk, offering a high concentration of underwrit24 Claims Canada

p24-26 FRED PLANT FINAL.indd 24

ing and insurance expertise in a small area.

Similarly, because Lloyd’s is an insurance market, not an insurance company, there is no central claims office.

Instead, any covered loss is reported back to the broker or agent who wrote the policy on behalf of the insurance market. Lloyd’s underwriters review all reported losses and set standards for how claims are to be managed, but they leave much of the actual claims handling and fieldwork up to the entity that sold the policy – and its chosen adjusting firm.

Another misconception is that Lloyd’s is only a specialist underwriter. While it handles all sorts of unique risks, Lloyd’s is licensed in Canada for most classes of insurance and reinsurance. Canada is Lloyd’s underwriters’ third largest market, with premiums of approximately $2.2 billion in 2012 (of which approximately 15% is reinsurance business). In Canada, Lloyd’s is best known as a market for commercial risks in respect of property,

August/September 2013

casualty and specialty classes of business.

One enduring misperception is that Lloyd’s is supported by private individual “Names,” who supply capital and backstop the risks that the market takes on. That was once the case, but today members provide the capital to support the syndicates’ underwriting.

These members include some of the world’s major insurance groups, as well as individuals and limited partnerships.

In the modern era, corporate members provide most of the capital for the Lloyd’s market.

All of this makes Lloyd’s a highly distinctive insurance market. It also means that, for adjusters, they can’t just pick up and do business with Lloyd’s as they would with any other insurer. Lloyd’s represents an important and potential emerging market for many adjusters – but first they have to understand how it works. This is my overview of Lloyd’s as I understand it.

Lloyd’s underwriters work closely with brokers and local underwriting www.claimscanada.ca

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agents (coverholders) and are able to offer customized insurance products for large risks, as well as for the small and medium business market. In Canada, coverage is generally placed with Lloyd’s in one of two ways – as an open market correspondent or as a coverholder.

Open Market Correspondent (OMC) An OMC is an insurance intermediary who introduces business to an accredited Lloyd’s broker for placement in the Lloyd’s market on an open market basis. This type of coverage, which is typically a “one-off ” insurance coverage solution, is issued by Lloyd’s according to the individual risk profile presented. Lloyd’s requires that insurance entities in countries such as Canada must be approved or registered by its attorney in fact or general representative before they can produce business to one or more sponsoring Lloyd’s brokers for placement on an open market basis.

The following is a brief synopsis of how a risk is placed at Lloyd’s. A local broker, acting on behalf of a client, approaches an accredited Lloyd’s broker with the details of a risk to be insured. The Lloyd’s broker consults an underwriter to discuss premium, terms and conditions. If both parties remain interested, a proposal will be made to accept a percentage of the total risk. A number of underwriters may accept portions of one risk (either within Lloyd’s or outside). Often, there is a “lead” syndicate and “seconds” or following syndicates, which take a percentage of the risk.

The Lloyd’s broker feeds back the proposal to the local broker and client.

If the local broker/client wants to proceed, the Lloyd’s broker prepares a ‘slip’ with the details of the insurance, which is signed by each of the underwriters that have agreed to accept part of the risk (“subscription”). The Lloyd’s broker deducts its fee from the premium paid by the customer and pays the net amount to Lloyd’s, which then allocates it to the syndicates. Any claims made under the policy are handled by the local broker, with reporting standards set

by Lloyd’s.

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Coverholder Coverholders essentially allow Lloyd’s syndicates to operate in a region or country as if they were a local insurer. This is achieved by Lloyd’s syndicates delegating their underwriting authority to coverholders. A coverholder can have full or limited authority to underwrite on behalf of a Lloyd’s syndicate. It will usually issue the insurance documentation and will often handle claims. The document setting out the terms of the coverholder’s delegated authority is known as a binding authority.

For adjusting firms in Canada, one of the key opportunities in the Lloyd’s of London market is to become a third party administrator (TPA) for a domestic coverholder.

Coverholders are given authority to write risks on behalf of Lloyd’s syndicates via binding authority contracts.

If the coverholder can settle the claims, this is known as a Claims Authority.

This may only be limited to claims below a certain agreed limit. Part of the contractual agreement is that the coverholder regularly reports claims to the Lloyd’s syndicate. Such information is required to ensure the correct movement of funds between coverholders, brokers and Lloyd’s syndicates; and to ensure Lloyd’s is able to meet its regulatory reporting obligations and maintain its licences in different territories.

August/September 2013

All insurance entities wishing to become an approved coverholder must complete the application process. Each applicant requires a sponsoring Lloyd’s broker and managing agent, who perform their own due diligence of the application before it is submitted to Lloyd’s coverholder department for review.

Typically, a coverholder is expected to issue regular reports on premiums payable and claims paid, as well as any other reporting standards. This is referred to as bordereaux, which are commonly produced on a monthly or quarterly basis. They break down block premium payments that are made to underwriters and detail claim payments made on behalf of or due from underwriters.

For adjusting firms in Canada, one of the key opportunities in the Lloyd’s of London market is to become a third party administrator (TPA) for a domestic coverholder. For example, if a coverholder is writing a program for sports liability or taverns and restaurants across Canada, the adjuster, acting as the TPA, would be given claims handling and settlement authority, subject to binding authority. To function as such, adjusters have to be registered at Lloyd’s through a written TPA agreement and receive an individualized reference number in Lloyd’s electronic system.

This article represents a brief overview of my perceptions on how Lloyd’s of London operates as an insurance market, in terms of risk identification, coverage placement and claims reporting.

The second in this series will examine how the Lloyd’s claims management model represents a significant departure from current trends, such as volume agreements and flat-fee adjusting, in Canada. It is a model that, in my opinion, emphasizes professional claims handling, proper investigation and value for services rendered.  Fred Plant is president of Plant Hope Adjusters Ltd. and a Past President of the Canadian Independent Adjusters’ Association (CIAA), having served as National President 2007- 2008. www.claimscanada.ca

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Rethinking the Retrofit

Who pays for damages caused by ill-conceived home/building energy retrofits?

BY JASON GUIHAN

Amid the rising cost of home heating in our harsh and diverse Canadian climate, more homeowners and building operators are considering various building envelope and energy retrofit and upgrade options with the goal of reducing heating and cooling costs. These energy retrofits, sometimes designed and executed without the proper understanding of basic building science principles, can lead to catastrophic outcomes for the owner. This can also place the insurer and/ or claims professional in a challenging situation when resultant damage is presented in the form of a property claim.

As a specialist in assessment and remediation of property damage, we have often been retained to assess water damage and mould issues at a property only to conclude that the observed damages are directly linked to the improperly executed application of such measures under the guise of more efficient energy performance. Unfortunately, what was done in the spirit of improvement actually leads to degraded building performance and health.

To avoid such outcomes, it is critical for the insured (and more importantly the contractor) to give careful consideration to the original design and construction of the home (i.e. brick and plaster walls, brick veneer, wood frame construction, etc.) as this dictates the best option for the building envelope energy retrofit.

Consider the following example that illustrates how an energy retrofit implemented for all the right reasons can lead to unwanted outcomes. The owner of a beautiful turnof-the-century brick veneer detached home decides to add blown-in insulation (i.e. loose fill fiberglass, cellulose, blown mineral

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August/September 2013

wool fiber, etc.) to all un-insulated exterior wall cavities in order to reduce heating costs in the winter months. We can assume that the wall assembly consists of vertical wooden members with wood sheathing on the exterior, plaster and lath wall finishes on the interior and no vapour barrier behind the plaster and lath wall finishes.

Prior to the application of the new insulation into the exterior wall cavities, the structure and building envelope were operating as an interactive system consisting of various components (i.e. structural components, heating, ventilating and air conditioning (HVAC) equipment and the occupants). Each component is integral in how the structure operates in the context of how the whole building deals with energy and moisture transfer from the interior to the exterior.

An example of this ‘interactive system’ concept would be the movement of moisture laden air in the winter months from the interior through the exterior walls by means of passive air leakage and vapor diffusion. Before the introduction of the blown-in insulation, such moisture laden air produced by taking showers, cooking, breathing, etc. would have previously entered the exterior walls through hairline wall cracks and receptacles and would have been able to migrate towards and be directed to the outside. In the past, construction practices saw exterior walls built with little regard for vapour transmission and air leakage and heat loss.

This approach was fine for an era when heating costs and energy efficiency were less of a concern. In this sense, the building envelope essentially acted as a passive ‘sieve,’ allowing moisture laden air (and the heat carried within it) to freely wick to the exterior while providing a modicum of insulating performance.

Although the above mentioned energy retrofit created a better insulated building envelope, it also resulted in less moisture laden air being able to escape through the insulated exterior walls. The moist air from within the home would now potentially enter the wall cavity and condense when it comes into contact with any portions of the blown-in insulation or wall structural components that are below the dew point (i.e. tem-

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perature at which water vapour condenses back to liquid As we know, this is often followed by the homeowner form). Even worse, if the insulation installation is uneven contacting their insurer expecting that remedial costs and throughout the wall cavity (i.e. gaps within the insulation), subsequent restoration work will be covered under their inthe moisture laden air could potentially reach the exterior surance plan only to learn that seepage and water ingress sheathing (that is now at a decreased temperature because over time are excluded. This situation is further aggrathe added insulation is keeping the heat from the vated when some form of water leak or flood causes interior of the house from reaching the the wall cavities to be inspected, only to reveal the exterior sheathing). This further inpre-existing non loss-related damage from the creases the risk of condensation and moisture ingress over time. mould/mildew growth or wood rot.

It creates an interesting debate as to Consider another example of a whether the contractor and/or the common energy retrofit option that design professionals retained to comis preferred by homeowners not only plete the energy retrofit and renovafor the perceived energy savings, but tion should be blamed for the resulalso the additional living space (not tant damage. The extent to which the to mention valuable rental income) various parties involved can be held -- the internally insulated finished liable would depend on the individual basement. The insured will often role they were contracted to fulfill and perceive a home with an insulated/ would be subject to the requirements finished basement to have higher of the Ontario Building Code and the value, but may be unaware of the applicable best practices. The deterpotential damage to building materimination of liability in these regards als occurring just behind the freshly would generally be done by a legal propainted walls. fessional as part of the claims review To create a livable space in the baseand litigation process. ment, owners of existing structures The insured could have avoided the have two options. One is to insulate resulting damage with a little research the foundation walls externally. This and understanding of the implications option is rarely used because of the of adding insulation to an existing elevated cost associated. This leaves structure that was previously workAs building envelope the more cost effective option of insuing as an “interactive system.â€? In the and energy retrofit lating the basement foundation walls first example, a simple upgrade to the options become from the interior. In order to provide capacity of the existing HVAC system a surface for wall finishing materials to to remove excess airborne moisture more common and be installed, the most common methshould have also been included. In the resultant damage od is to add stud wall framing on the second case, an alternative insulating from improper inside of the house foundation walls. method (e.g. a layer of rigid foam inThis method involves the construction sulation against the foundation wall installation become of a wooden stud wall frame against or water seal) could have avoided the more prevalent, the foundation wall that is insulated resultant damage. with fiberglass batt insulation and then As building envelope and energy the insurance industry covered with a vapor barrier. Wall finretrofit options become more common will require the tools ishing materials in the form of drywall and resultant damage from improper to identify and are then attached to the wooden stud installation become more prevalent, wall frame. the insurance industry will require the delineate the related A potential flaw with this type of tools to identify and delineate the redamages. construction is that moisture can lated damages. They also need to have migrate into the newly installed wall the insight to find the right resources cavity from the exterior of the foundain the early stages of such claims. It is tion if it is not properly damp or waterproofed (i.e. through our belief that forensic engineers and building scientists play ground water leakage, capillary pressure, etc.) or from the a key role in such solutions, which, when combined with an interior of the finished basement (i.e. diffusion, air leak- informed claims professional, will serve to avoid unnecesage, etc.). This moisture becomes trapped between the sarily costly claims and litigation. î — foundation wall and the vapor barrier potentially resulting in mould growth and the decay of the wooden stud wall Jason Guihan, B.A. Tech., is an environmental technologist frame. with the forensic engineering firm Giffin Koerth Inc.

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Double-sided Rule on Disclosure?

FSCO interpretations on surveillance practices leave a lot to be desired

BY DANIEL STRIGBERGER

Insurers involved in FSCO proceedings should be aware that despite binding authorities instructing otherwise, FSCO Arbitrator Wilson has once again ordered an insurer to disclose “forthwith” whether or not it has any surveillance in its possession. And if it does have any, it “shall have 60 days from the date of this decision to make its election as to whether it intends to rely upon any of the surveillance, in which case it shall immediately disclose all surveillance in accordance with Rule 40 of the Dispute Resolution Practice Code.”

Let’s look at Rule 40 of the Code. It states: “40.1 If a party intends to rely on any portion of surveillance or investigative evidence, including videotapes, photographs, reports, notes and summaries of surveillance observations or investigations, at least 30 days before the hearing, the party shall provide: (a) the names and qualifications of the persons who secured the investigative or surveillance evidence, the dates, times and places where any surveillance or investigation was undertaken; and (b) copies of all videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute. “ The Rule is clear: the insurer must comply with (a) and (b) – but only if it intends to rely upon the surveillance.

And if it chooses to do so, it must exercise that right at least 30 days before the hearing by providing the required disclosure.

In Security National v. Morgan, (FSCO App. 2007), Director’s Delegate Evans held that the whole point of Rule 40.1 is to avoid the difficulties that occur in the court system by setting out a simple rule regarding surveillance. He held that Rule 40.1 governs: “It is determina30 Claims Canada

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tive of when the insurer’s obligation to disclose arises, and that the context in the DRPC 4th is identical to that in the DRPC 3rd. Accordingly, the arbitrator was bound by Puljic [another appeal decision]. Finally, Rule 81 does not give an arbitrator carte blanche to simply ignore the rules.

In Puljic v. Zurich (FSCO App. 2000), Director’s Delegate Draper considered the opening of the first paragraph of the rule, which reads: “If a party intends to rely on any portion of surveillance or investigative evidence....”

He stated: “In my opinion, the clear implication of Rule 37.1 [now Rule 40.1] is that the insurer’s production obligation only arises when it decides ‘to rely on any portion of surveillance or investigative evidence.’”

Director’s Delegate Evans quoted this passage from Puljic and agreed with it.

How then does a FSCO Arbitrator clothe himself with the jurisdiction to sidestep the “rules”’ and issue an order requiring “forthwith” disclosure of surveillance, and then a requirement to produce within 60 days from a preliminary issue hearing instead of at least 30 days before the hearing?

It is a perplexing issue. Let’s look at the decision, Dewing v. Unifund. First off, Arbitrator Wilson relied in part on one of his own decisions (Suhanic-Knox v. Economical, 2008, also on a surveillance disclosure issue) wherein he refused to be bound by the appeal decision in Security National to bolster his view that FSCO arbitrators are not bound by appeal decisions from FSCO. On this note, after Dewing was released, Director’s Delegate Evans released an appeal decision in Pries v.

Economical, which was an appeal from another Arbitrator Wilson decision. Director’s Delegate Evans held that arbitrators are bound to follow appeal decisions from FSCO, something Arbitrator Wilson refused to do in Pries.

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Vo and Maplex General Insurance Company et al., (OIC P-002777, December 12, 1997) established that appeal decisions are binding on arbitrators not on the basis of stare decisis, but simply on the structural basis of this tribunal. This is so, Evans stated, because “the Legislature intended there to be certainty on issues of law going beyond the specific dispute of the parties.” Otherwise, as the Director in Vo noted, if an appeal decision is simply “giving a second opinion which would have no impact on other arbitration cases with the same interpretive dispute ... the process merely duplicates itself, and the goal of expeditious resolution of disputes is compromised.”

Back to Dewing. Having found that he was not bound to follow appeal decisions, Director’s Delegate Evans cited section 22 of the Insurance Act and various provisions of the Statutory Powers Procedure Act to arrive at the conclusion that he had the same powers as a Superior Court judge to order various productions and to make orders dealing with disclosure at various stages of the proceedings.

So much for certainty on issues of law. With respect to the wording of Rule 40.1, Evans said: “On the face of it, the use of ‘at least’ before 30 days in Rule 40.1 would suggest that the Director contemplated situations where the disclosure would take place more than 30 days prior to the hearing. Otherwise the insertion of ‘at least’ would be redundant.”

But let’s have a look at Rule 40.1 in its proper context. Without the phrase “at least,” an insurer would be allowed to use surveillance only if it was disclosed on the 30th day before the hearing. It would not be allowed to use surveillance if it was disclosed 35 days before a hearing or six months before the hearing.

Further, the timing of the disclosure is at the discretion of the party possessing the information. It can make the determinawww.claimscanada.ca

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tion to rely on the surveillance and disclose it at anytime, subject to the ‘drop dead’ 30-day period.

With respect to the Code, Evans stated: “The Dispute Resolution Practice Code, which is ‘a user’s guide’ to resolving disputes between consumers and insurers involving statutory accident benefits claims under the Insurance Act and the Statutory Accident Benefits Schedule,’ is published by the Director of Arbitrations. It is neither law nor subsidiary law (regulation). It is in the words of the Insurance Act to provide for rules for ‘the practice and procedure’ in arbitrations.”

How many insurers have been reprimanded for not complying with the timelines or other procedural requirements in the Dispute Resolution Practice “User’s Guide”? For example, in Hotchkiss v. Kingsway (2011, FSCO Arb.), the insurer tried to rely upon surveillance despite failing to disclose it at least 30 days before the hearing.

Arbitrator Wilson wrote: “Rule 40.1 of the Practice Code deals with surveillance evidence. Its terms are clear and

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mandatory. Unlike Rule 39.2, there is no relief provision in the event of ‘extraordinary circumstances.’”

Arbitrator Wilson also wrote: “The time limits set out in the Practice Code are the default time limits that are set for this hearing. Until now there has been no request to amend the time limits.

Whether extraordinary circumstances are specifically a named criterion in any relief or not, it is incumbent upon those who would have us deviate from the Rules to demonstrate cogent reasons to justify their requests.”

This would appear to be a very narrow reading of a “user guide,” to the prejudice of the consumer at large (those who have to pay insurance premiums).

Finally, from Dewing: “Mr. Wynperle [claimant’s lawyer] is right. Ms. Dewing is expected to provide all her evidence to the Insurer, whether she intends to rely upon it or not, quite early in the hearing process. She must obtain the opinions of doctors or other experts to support her claim without knowing until almost the eve of the hearing whether there is photographic or other surveillance evidence that should have

been shown to those experts for their comment. It is unbalanced. It is unfair.

It is also unnecessary.”

Does this mean that a claimant must produce an unfavourable medicolegal report to the insurer, even if she does not intend to rely upon it? If so, I would gladly trade some surveillance tapes for such unfavourable reports.

And if 30 days before a hearing is “almost the eve of the hearing,” which somehow prejudices the claimant’s questionable right to have her doctors see the surveillance, when will an insurer ever be able to rely upon Rule 40.1 to serve surveillance on the 30th day? Where is the balance? Is there a concern that an insured may not be being forthright with their own experts, such that the insurer’s surveillance can ‘upset the applecart?’

Presumably. if an insured was being forthright, there would be no concern with a picture telling a thousand words.

I have been told that Unifund has appealed the decision.  Daniel Strigberger is a partner in the insurance litigation group in the Waterloo office of Miller Thomson LLP.

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Contending with

Chronic Pain

How insurers can find the right expert to diagnose this condition

BY DR. JASON MAZZARELLA

In Canada, insurers are under fire due to the reports of chronic pain post motor vehicle accident collision.

Recent findings have further complicated the chronic pain issue in Canada.

The World Health Organization has stated on recommendations set forth by the International Association for the Study of Pain that chronic pain treatment is a basic human right.1 The Canadian Pain Coalition at the September 3, 2010 International Pain Summit in Montreal stated that “access to pain management is a fundamental human right.2 And court judgments, including Martin vs. Workers Compensation Board of Nova Scotia, addressed severity of pain as a violation of the Canadian Charter of Rights.3 These findings provide further evidence of the struggles insures have when trying resolve motor vehicle accident claims in a timely and efficient manner. These current findings are then complicated further by the current legal system that acknowledges chronic pain to be a primarily subjective experience thus allowing any doctor to make a comment on need based on patient response.

The truth is that In Canada an estimated 6 to 7 million people suffer from chronic persistent pain.4 The Canadian Pain Study in 2002 reports that chronic pain patients make up to 40% of the population, and most doctors are ill-equipped to assess or treat 32 Claims Canada

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these conditions due to an overall lack of education and training.

Dr. Jovey, president of the Canadian Pain Society, reported that two-thirds of physicians and two-thirds of patients believe chronic pain is not well managed, and that due to the shortage of pain specialists, family physicians are forced to provide the bulk of pain management care.5 The overall lack of whiplash and chronic pain specific training is leading to an environment in which providers (DCs, psychologists, GPs, neurologists, physiatrists, orthopedic surgeons) are stepping into the gray area of their scopes in order to make medical opinions. These medical opinions can then lead to further expenditures and disability. If a plaintiff chronic pain doctor indicates to a patient that a chronic pain process is present, this changes the ideology of the injured person, their belief in their functional abilities and their long-term outcome.

Research has shown that a patient’s perception of pain is as important as the actual pain present.6

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On the same hand, if the insurer prematurely denies benefits for those suffering from pain, research has shown that the cause of pain can continue to exacerbate. In general MVAs, the majority of initial pain symptoms are due to nociceptive input, such as tissue damage resulting in a painful response. However, if this tissue damage is not appropriately and timely treated, continued nociceptive input can lead to neuropathic pain, compressive pain or psychogenic pain, further complicating the overall recovery outlook.7 Whiplash and chronic pain research has evolved greatly over the last two decades. We now know how occupants react inside a vehicle during specific vector collisions at different speeds dependent on crash variables, speeds and risk factors. We also know that chronic pain can be objectively found through specific orthopedic testing and special tests such as fMRI and PET scans.

Whiplash and chronic pain education is the key to overall reduced liability in regards to chronic pain and motor vehicle trauma. Doctors who deny benefits based on assumption and opinion, allow for increased litigation potential, as well as reduced client retention on the insurer’s part.

Doctors without specific training who freely deliver chronic pain diagnosis based solely on subjective reports allow for flooding of the www.claimscanada.ca

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claims process as well as psychological related adverse effects on client.

As insurers, the answer is simple.

Require specific postgraduate training from both the plaintiff IME and defense IME firms chosen doctors. Those requesting chronic pain assessments related to motor vehicle trauma or denial of chronic pain benefits related to motor vehicle trauma should have post graduate training in whiplash traumatology as well as in chronic pain from a CME (continuing medical education) or CCE (continuing chiropractic education) approved organization.

The current standard in Canada is the Canadian Academy of Pain Management. Those recognized with a Diplomat in Pain Management have obtained this through several qualifying control steps (completed through the AAPM). First, the doctor must have enough CME or CCE training in pain management to be approved to sit for the qualifying examination by a panel of pain experts. Secondly,

the doctor must pass a rigorous and comprehensive multidisciplinary pain management test. Thirdly, and most importantly the doctor must maintain 100 hours of continuing education per cycle.

In my view, this is just as important as pain medicine, as medicine in general is every changing and continued maintenance of education is required to ensure the best possible outcomes for those injured.

By requesting this specific education from your IME assessors, the overall quality of care will be enhanced and the overall duration of symptoms along with overall disability, and need for additional benefit will be reduced.  Dr. Jason Mazzarella, DC, DAAPM, DCAPM, DAAETS, FIAMA, MVCFRA, CBIS, CMVT, CATSM, CPM, is a specialist in chronic pain and one of only 26 Pain Management Diplomats in Canada.

1. World Health Organization. http://www.who.int/en/ Retrieved May 28, 2013.

2. The Status of Pain in Canada moving toward a Canadian Pain Strategy Recommended by the Canadian Pain Coalition, The National Voice of People with Pain. http://www.canadianpaincoalition.ca 3. Judgments of the Supreme Court of Canada. http://scc.lexum.org/decisiascc-csc/scc-csc/scc-csc/en/item/2088/ index.do Retrieved May 28, 2013 4. Definition of Chronic Pain from the Supreme Court of Canada. http://ontarioinsurancelaw.blogspot.ca/ 2009/07/ definition-of-chronic-pain-from-supreme.html 5. Health Canada Meeting Re: Scheduling of Tramadol Ottawa, December 5th 2006. Roman D. Jovey MD, President Canadian Pain Society.

6. Barry L, Guo Z, Kerns R, Duong B, Reid MC: Functional self-efficacy and painrelated disability among older veterans with chronic pain in a primary care setting. Pain 104 (2003) 131-137 7. Woolf CJ: Central Sensitization: Implications for the diagnosis and treatment of pain. Pain 152 (2011) S2-S15

OUR SIMPLE CLAIM Efficient Objective Reliable A.R.S. has the experience and medical resources necessary to effectively guide the disability management process and ensure that your client has a safe recovery to maximum rehabilitative potential.

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Independent Medical Evaluations Occupational Therapy Evaluations Labour Market Diagnostic Testing Functional Abilities Evaluations Transferable Skills Analysis Vocational Evaluations File Reviews

416-510-2468 • 1-877-304-2239 • info@arsi.ca • www.arsi.ca www.claimscanada.ca

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Client: A.R.S

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Avoiding the Acronyms

Has “insurance-speak” become your default communication style?

BY CAROLYN WILBY

Have you ever pulled your hair out (literally) while trying to decipher your computer manual (insert cell phone bill, banking correspondence, or even barbeque assembly instructions here)? Or perhaps you rely on deep breathing to cope while attempting to fill in a form, or have resorted to caffeine and sugar (or worse) while trying to understand policies or procedures? Sadly, we’ve all been there.

Whatever you want to call it—corporate mumbo-jumbo, bureaucrat-speak, tech-talk, legalese, or med-speak—there are also numerous words to describe the consequences of unclear information: confusion, irritation, and frustration, not to mention creating an image of everything from authoritative to pompous to incoherent and dull—all at the same time. Although you have experienced the consequences of unclear language firsthand, have you also unwittingly perpetuated it? Has insurance-speak unconsciously become your default communication style?

Clarity is critical The claimant, DOB, vocational, reserves, functional status, IE, quantum value, RHP—just business as usual, right? Not necessarily. What we industry insiders often don’t realize is that the language we consider “business as usual” is anything but usual for our customers and claimants. Whether communicating information to another insurance-related business or providing information directly to a claimant, it’s important to avoid falling into the insurance-speak 34 Claims Canada

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trap. When faced with insurance-speak, all types of readers end up pulling their hair out, or worse, they make poor decisions.

For our intended readers, comprehending insurance-speak is like struggling to understand a foreign language—the language of insurance is a unique dialect of med-speak, legalese, and corporate jargon all rolled into one.

And the consequences of unclear language are especially high where insurance correspondence and information are concerned. Our intended readers need to—and have the right to—make informed decisions. They should be able to make decisions based on a complete understanding of the matter at hand.

Ultimately, insurance-speak that creates unclear language can pose serious financial and liability risks, as well as negatively affect health, lifestyle, and safety.

Just say “no” to insurance-speak Here’s how…

Immersed in the industry, we’re immersed in industry language. We need to train ourselves to step back, using the motto “Write to your reader.”

1. Check your assumptions—be clear on “who” you are writing to You may be surprised—especially if you work in a business-to-business environment—about average reading ability and literacy levels, which are often just assumed to be good (or not considered at all). Although there is wide-ranging agreement that it is important to define a “desired level” of competence for coping with the increasing skill demands of the

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emerging knowledge and information economy, this doesn’t mean that most of us have achieved this level. It’s exactly the opposite, in fact. Here’s the scoop: • The “desired level” or what the literacy world refers to as Level 3 performance “is generally chosen as a minimum benchmark because in developed countries, performance above Level 2 is generally associated with a number of positive outcomes.”

• However, the International Adult Literacy Survey “showed that close to half of the Canadian adult population aged 16 and over performed below Level 3 on the prose and literacy scale, the ‘desired level’ of competence for coping with the increasing skill demands of the emerging knowledge and information economy (OECD and Statistics Canada, 1995). Among those 16 to 65 years of age, this represented about 8 million Canadians below Level 3 in 1994.”

• Similarly, the results of the next largescale survey in 2003, showed that “just under half of adults aged 16 and over and 42 percent of those aged 16 to 65, about 9 million, were below Level 3 in prose literacy.”

• Approximately 72 percent of Canadians below Level 3 are employed.

What does this mean? It means that most of our intended readers—whether in a business-to-business or businessto-consumer environment—struggle to easily read and easily understand written information. Now add to this the trend of rising multiculturalism, and it’s obvious that clear information is critical: The 2006 census indicates that the proporwww.claimscanada.ca

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tion of the Canadian population born outside of the country reached its highest level in 75 years, nearly tripling over that time. This represents one in five (19.8 percent) of the total population and a 13.6 percent increase in the foreign-born population between 2001 and 2006, four times higher than the growth of the Canadian population overall.

Accordingly, as a guideline, experts recommend we aim to write at about the 9th grade level and often recommend even lower for important health and safety information. However, insurancespeak bumps up writing to a reading level well above this. As a result, even if your intended readers are technically able to read your information, they may not understand it and probably are not able to confidently act on it. Now that you know “who” you are writing to—namely a large proportion of customers and claimants that struggle to understand written information—it’s time to make your writing easier to read and easier to understand— and ultimately, more useful.

2. Carefully select the language you use Enhance clarity—and banish insurance-speak—by using plain language writing techniques. Simply put, plain language is a development process in which the language, structure, and presentation of the information all work together to make sure your reader can read, understand, and act on your correspondence or information—after just one read. Plain language is often described as “considerate English” because it focuses on your reader’s needs, not your needs or your organization’s needs. The result?

• If your readers are high literacy: They appreciate plain language because it is quickly engaging and makes it easy for them to take from it what they need— and get the task at hand done efficiently. Zero confusion, zero frustration.

• If your readers are lower literacy: They don’t just appreciate plain language— it’s vital. Otherwise, although they may be able to read it, they may not be able to understand it or use it.

3. Tackle the “top three” Small things make a big difference in terms of enhancing clarity. As a starting point, try these plain language writing www.claimscanada.ca

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techniques to tackle what could be considered the “top three” insurance-speak issues:

Minimize abbreviations and acronyms—this improves clarity as well as tone Although let’s face it: with insurance correspondence and information, realistically there is no way these days to abandon abbreviations and acronyms altogether. However, there are ways you can significantly decrease their use and in turn do major clarity damage control. Try this: After initial reference to the abbreviation or acronym, instead of repeating it again and again, replace it with, for instance, “the committee,” “the legislation,” or “the form.” For ex-

Accordingly, as a guideline, experts recommend we aim to write at about the 9th grade level and often recommend even lower for important health and safety information.

ample, just refer to the “SABS” once (for the Ontario Statutory Accident Benefit Schedule), and then for any follow-up references simply say “the legislation.”

Break down long sentences— this lightens things up and helps reader fatigue • First, check for only one complete thought per sentence by asking yourself, What is the main point that this sentence is trying to relay? Then cut out anything that doesn’t directly relate to the point.

• Next, circle any sentences that have more than 25 words and edit them down to 15-20 words (or even fewer;

consider aiming for an average of about 10 words).

• If you find you have several thoughts in one sentence and well over 15 words, in addition to breaking down the sentence into shorter sentences, try using techniques such as bulleted lists.

Aim for a friendly but professional tone—this energizes your writer and your reader Use personal pronouns like “I” and “your” and “we” and “our”: This immediately makes your writing more direct and engaging. For example, “The insurer requires the following information…” becomes “We require the following information…”

Use the active voice as much as possible: This is the antidote to confusion and frustration because it makes it clear “who” is doing “what.” For example, “The documentation is required by the claims analysts” becomes “The claims analysts require the documentation” or even better (using a personal pronoun and simpler words), “We require the information.”

Read your writing out loud: Would you actually say it this way to someone?

Do you sound friendly while still professional?

No decoding necessary Overall, think of your writing as a conversation—try to write in the same everyday language that you would use if you were talking to your intended reader.

Your writing should come across as if it were written by one human being for another human being. Keep in mind that to easily read, understand, and act on insurance correspondence and information, our customers and claimants should not have to be part insurer, part rehabilitation professional, and part lawyer.

The FCAC advises using “a checklist to ensure that clear language and presentation principles were followed.” To get started, download this complimentary checklist using promo code FCAC at http://clearlanguageatwork.com/ complimentary-resources/  Carolyn Wilby, MBA, is the founder, principal writer and editor of Clear Language @ Work Inc. (www.clearlanguageatwork.com)

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GOOD

GRIEF!

Determining psychological injury under the DSM-5

BY JAMES DOWLER AND KRISTA PROCKIW

On May 18, 2013, the DSM-5, the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders was published replacing the DSM-4 which was last revised in 2000. The book is primarily used by the psychiatrists in defining and diagnosing mental disorders.

The DSM-5 has received extensive criticism from the psychiatric industry with the National Institute of Mental Health cautioning physicians to “use the DSM-5 cautiously, if at all”. Dr. Allen Frances, who chaired the task force for the DSM-4, reported in Psychology Today that the “saddest moment” of his 45 year career was when the Board of Trustees of the American Psychiatric Association gave “its final approval 36 Claims Canada

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to a deeply flawed DSM-5 containing many changes that seem clearly unsafe and scientifically unsound.”

That said, it is likely that diagnoses based on the DSM-5 will continue to be advanced in the context of medical legal reports. This could have several implications on personal injury litigation: The DMS-5 contains 15 new diagnoses and has expanded the criteria for diagnosis of several existing disorders.

Accordingly, there is the possibility that the widening of diagnostic disorders identified in the DSM-5 will lead to an increase in conditions for which remedy is sought from the courts.

It is trite to say that a necessary element of any tort claim is that a plaintiff suffers damage. In the context of personal injury litigation this may involve proof of a recognizable psychiatric illness. This requirement was described in obiter by Madam Justice McLachlin in the Supreme Court of Canada decision of Mustapha v. Culli-

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gan of Canada Ltd., 2008 SCC 27 who, while stating that she would “not purport to define compensable injury exhaustively”, noting that “psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset” and that “minor and transient upsets do not constitute personal injury, and hence do not amount to damage” [at para. 9].

Courts often turn to expert evidence from psychiatrists in order to make a determination of whether a plaintiff suffers from a psychological disturbance sufficient to constitute personal injury. In this regard, the Diagnostic and Statistical Manual of Mental Disorders provides a framework for diagnosing psychiatric illnesses. In fact, the British Columbia Court of Appeal in Young v. Borzoni 2007 BCCA 16, commented that “[r]ecognizable psychiatric illnesses, such as are defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) for example, amount to visible and provable www.claimscanada.ca

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illnesses for the purposes of the tort of the intentional infliction of mental suffering” [at para. 37].

One change introduced in the DSM-5 is the removal of the twomonth qualifying cut-off known as the bereavement exclusion, which exempted grief lasting under two months as a criterion upon which to base a diagnosis of depression in situations involving the death of a spouse or a loved one. This will make it much easier for a person grieving to be diagnosed with depression. In fact, a person could accordingly be diagnosed with Major Depressive Disorder almost immediately after the loss of a loved one.

The courts have long held that grief and mental anguish suffered by the family member of a deceased are noncompensable, except in a claim under fatal accidents legislation which allows for recovery or if they form part of a recognized psychiatric or emotional condition upon which a nervous shock claim can be founded [Rhodes Estate v.

C.N.R. 1990 CanLII 5401 (BCCA), Devji v. District of Burnaby 1999 BCCA 599].

This may be subject to the wording of the particular provincial legislation.

It may well be that the reclassification under the DSM-5 elevates “psychological upset” to the level of “psychological disturbance” so that it is possible that a mental state which prior to May 2013 would not have given rise to a claim for damages will now be considered an injury.

The DSM-5 contains a “cautionary statement for forensic use” in which it comments that when “used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations”. However, this cautionary statement also provides that “it is important to note that the definition of mental disorder included in the DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professions”.

This caution is especially warranted given the controversy surrounding the validity of the DSM-5. As noted by the Ontario Court of Appeal in Healey v. Lakeridge Health Corporation 2011 www.claimscanada.ca

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ONCA 55, the classification of a recognizable psychiatric illness is “dependent upon shifting medical opinion” [at para. 66]. Accordingly, this controversy may impact the weight to be given to an expert report which purports to rely upon DSM-5 classifications in the diagnosis of a psychological injury.

The true impact of the DSM-5 on personal injury litigation remains to

be seen; however, as psychiatrists begin to utilize the DSM-5 in their expert reports these issues will soon be before the courts.  James Dowler is a partner and Krista Prockiw is an associate counsel with Alexander Holburn Beaudin + Lang LLP (a member firm of the ARC Group Canada).

August/September 2013

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from

And some do’s and don’ts on how to deal with them

BY JEFF MOWATT

Perhaps you’ve noticed that customers are becoming increasingly hostile. Case in point was the highly publicized incident where a patron in a fast food restaurant became so enraged that he attacked the restaurant manager. The customer spilled his coffee on his breakfast and when the manager refused to replace the meal, the ensuing argument led to violence that ended with the customer being arrested.

It seems in our fast-paced frenetic world customers are now more tired, rushed, stressed, and downright fedup. That’s why in my customer service seminars both managers and frontline employees frequently ask me how to handle the proverbial customer from hell. Here are five Do’s and Don’ts for calming cranky customers.

1. Do consider the big picture Don’t focus on the single transaction The fast food fisticuffs could have been avoided if the restaurant manager (better yet the frontline employee) would have cheerfully replaced the patron’s meal for free. The incremental cost to the restaurant would have been nominal, and the loyalty and 38 Claims Canada

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subsequent return on investment would have been substantial. Instead, the manager took the low road and focused on the cost of the meal and the fact that it wasn’t the restaurant’s fault. Guy should have been litigator; he certainly wasn’t a business person.

2. Do acknowledge feelings Don’t say, “Calm Down.” Ever.

Can you think of a single example in the history of the world when telling somebody to, “Calm down” did anything other than make things worse?

Me neither. It’s never appropriate to tell someone how they should feel.

On the contrary, you’ll improve their demeanor by validating their feelings with empathic statements like, “That sounds frustrating.”

3. Do ask the four Ws Don’t ask “Why” When a customer has a problem and you need the pertinent details, ask the four Ws: who, what, where, and when. But avoid asking Why. Generally, the response to why something

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went wrong is that someone was inept. Imagine asking a customer, “Why didn’t you read the instructions?”

This is not constructive and just makes things worse.

4. Do apologize for foul-ups Don’t over explain Over the 20 years that I’ve written and delivered customized customer service seminars, I’ve discovered that the main reason customers become irritated is simple - the organization broke a promise; one that was either expressed or implied. Telling a customer, “I’ll call you back”, then neglecting to do so is called lying. If we normally complete a project in www.claimscanada.ca

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three days, and this time it takes three weeks, we are now breaking an implied promise. In both cases the customer didn’t get what they expected so we need to apologize.

It’s also helpful to give them something extra to make up for the customer’s hassle factor. If there are extenuating circumstances then give the customer a brief explanation. But keep it short. Going into lengthy details about why you couldn’t keep your end of the bargain sounds like trying to rationalize poor service. It only makes matters worse.

5. Do be respectful Don’t become a doormat Some customers are not at their best when they get angry. They can shout, swear, cry, or become abusive.

That does not give us license to react in kind. We do need to be respectful. We don’t need to kow-tow.

Imagine a customer, upset about a late delivery, is swearing at a supplier on the phone. In that case the supplier would do well to respond with something like, “Sir, I want to help you. Using that language however, is preventing me from focusing on resolving this issue. So I’m going to ask you to stop using that language so we can focus on fixing the problem.”

If the customer continues with the verbal abuse, close the conversation with, “Sir, as I explained earlier I want to help you, but I can’t help you when you’re using that kind of language.

I’m going to hang up now, but please call back when you can talk to me without using that language. Goodbye.” Then go immediately to your supervisor and give them the details of the conversation. That way, they’ll be forewarned when the customer calls back demanding to talk with the manager.

Bottom line – have some empathy Who among us can claim that as a customer, we’ve never been terse or worse with a service representative who was in no way responsible for the foul-up? Some customers are cranky because stuff happens in their lives that has nothing to do with you. So www.claimscanada.ca

before becoming too self-righteous or casting proverbial stones at those miserable customers, we’d do well to put ourselves in their shoes.

It’s also worth remembering that if work was supposed to be fun, they wouldn’t need to pay us. Dealing with upset customers sometimes comes with the territory. Fortunately, by learning to handle difficult customers well, you’ll make them even more loyal than before the foul-up. That makes

the job less stressful and more rewarding for everyone.  This article is based on the bestselling book, Influence with Ease by customer service strategist and certified professional speaker Jeff Mowatt.

To obtain your own copy of his book or to inquire about engaging Jeff for your team, visit www.jeffmowatt.com or call toll free 1-800-JMowatt (5669288).

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

Reaching Over 8,500 Insurance Claims Professionals from Coast-to-Coast!

For advertising space information, please contact Paul Aquino, Publisher: paul@canadianunderwriter.ca

www.claimscanada.ca August/September 2013

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Deception

Untangling a Web of How to effectively use surveillance

BY ROBERT C. MCGLASHAN AND BRITTANY SUD

There have been several recent cases throughout Canada where defence counsel effectively use surveillance evidence to attack a plaintiff ’s credibility and undermine the plaintiff ’s case.

This article will provide a case comment with respect to the cases of Ryckman v Pottinger, 2013 ONSC 2857, Iannarella v Corbett, 2012 ONSC 2253 and Bialkowski v Banfield, 2013 BCCA 130. In these cases where defendants have compelling surveillance evidence, plaintiff ’s actions should be defended aggressively.

Ryckman v Pottinger In Ryckman v Pottinger, 2013 ONSC 2857, the Court held that a plaintiff was not entitled to general damages. Credibility issues were central to this decision because of effective surveillance that called the plaintiff ’s evidence into question.

The plaintiff was involved in two motor vehicle accidents; the first on January 31, 2003 and the second on November 26, 2003. Liability was admitted in both accidents. The plaintiff entered into a Perringer agreement with the defendant of the first accident and the Court heard evidence on damages.

The Court ultimately did not find the plaintiff to be credible. There was an observable difference between how the plaintiff appeared in court and how she functioned in the surveillance video.

During trial, when the plaintiff was confronted with surveillance evidence and cross examined concerning his apparent lack of credibity, the plaintiff raised the issue that on certain occasions he will experience “good days” and that the surveillance evidence had observed him on rare occasions when he was feeling better than usual. It is important to note that this is the explanation often offered by plaintiffs when confronted with surveillance evidence that calls their

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credibility into question and shows them performing activities that they claim they cannot do.

The Court did not accept the plaintiff ’s explanation that the surveillance displayed “good days” and the plaintiff was unable to recover any general damages.

Iannarella v Corbett In Iannarella v Corbett, 2012 ONSC 2253, the plaintiff was involved in a motor vehicle accident on February 19, 2008.

Before being involved in the accident, the plaintiff had been living and working in Canada for over 30 years. Most recently, he worked at Fenco Company, a car parts manufacturer, where he supervised several workers and drove a fork lift vehicle in the plant.

Prior to the accident, he was under regular care from his family doctors for a variety of ailments and his job function was modified to suit his degenerative low back limitations but he worked full time and pursued some leisure and social activities with his family and friends.

Following the accident, the plaintiff allegedly developed neck pain and over time he complained of left shoulder pain and restricted mobility of his left arm and shoulder. He claimed he was completely disabled from his modified factory job immediately following the accident and effectively from any job after the accident.

The neck injury resolved and it was not asserted that it had produced serious or permanent impairment. The plaintiff claimed that combination of left shoulder and chronic pain syndrome produced permanent limitations. The defence position was that he had long since recovered from any injuries brought about by the accident. The left shoulder operations were reasonable and necessary interventions but the defence insisted that they were not accident-caused.

The Court noted that the plaintiff was often not responsive during cross examination and when he feared being tied down to a proposition he did not like, he resisted answering at all or claimed that he did not understand the question or the concept it addressed. His understatement of his ability to speak in and comprehend the English language also hurt his credibility.

The Court stated that the surveillance evidence contradicts the plaintiff ’s self description of his abilities and limitations and it demonstrates a significant level of accomplishment in the nature and extent of his usual activities of daily living, considering the plaintiff ’s age.

The investigators testified that on the day before the trial began, the plaintiff drove on 400 series highways in excess of the speed limit and passed cars in the process. He was accompanied by his wife; yet, both www.claimscanada.ca

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gave evidence that he rarely drove other than short distances and that he did not drive on those highways.

The Court held that the plaintiff gave an inconsistent testimony, overstating his limitations and understating his abilities. The Court did not accept the plaintiff ’s description or his family’s evidence of subjective complaints and limitations as accurate, as the surveillance video showed he was capable of more, demonstrating a significant level of accomplishment in the nature and extent of his usual activities of daily living.

The Iannarella case demonstrates the court’s preference for objective surveillance evidence over subjective evidence of a plaintiff ’s family that may be motivated by a desire to assist the plaintiff with respect to his or her claim. Defendants should not be discouraged by cases where a plaintiff ’s family and friends support the plaintiff ’s claim if that evidence is contradicted by clear and objective evidence that calls not only the plaintiff ’s credibility into question but also the credibility of the plaintiffs’ family and friends.

deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame .”

The Court in this case found Bialkowski lacked credibility in claiming he was injured in the motor vehicle accident. The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries. It was supplemented by YouTube videos to the same effect.

This case illustrates that surveillance evidence can greatly assist the court in cases where there is contradictory medical evidence and can assist the court in deciding weight to be given to conflicting medical evidence while also providing a means to assess the plaintiff ’s credibility.

Importance of Surveillance Surveillance is a useful tool when attempting to assess a plaintiff ’s credibility. Surveillance showing a plaintiff to be more active than he or she admits to or appearing better than he or she attempts to present at exBialkowski v Banfield aminations or at trial will be paramount In Bialkowski v Banfield, 2013 BCCA in attempting to weaken the plaintiff ’s 130, the plaintiff, Bialkowski, was a front credibility. While one might be concerned seat passenger in a large truck operated by that the cost associated with surveillance his wife. Their vehicle was stopped waiting of a plaintiff may not be warranted, the to make a turn when it was struck from considerable savings that can be achieved behind by a motor vehicle driven by the from using surveillance when it is bendefendant, Banfield. The truck sustained eficial far outweigh the costs associated There is a little damage; whereas, the defendant’s with occasional rounds of surveillance motor vehicle was damaged heavily. not yielding expected results. There is a substantial Prior to the accident, Bialkowski had substantial benefit to using surveillance as benefit to using been seeing medical professionals for a means to explore the issue of whether a plaintiff is credible. problems with migraines and other injusurveillance as a Surveillance evidence can be a deterries sustained in a work-related accident. means to explore mining factor in assessment of damages He saw his family doctor for a previouslythe issue of whether and a plaintiff ’s credibity. In order to take arranged appointment two days after the full advantage of the benefits of surveilaccident and reported he had no injuries a plaintiff is lance defence counsel should keep the folfrom the accident. Two days later, he went credible. lowing issues in mind. Plaintiffs often will back to the doctor and the doctor found he try to limit the weight of surveillance evihad a whiplash-type injury. The plaintiff also relied on the evidence of a physiotherapist, Maria Chris- dence by claiming it occurred on good days. Defendants can tian, who testified that she observed indicia of physical injury. address this criticism by having several days of surveillance so The defendant asserted that she was the only person who tes- that the explanation of “good days” will seem less plausible. tified to objective signs of injuries and that her evidence was Also, it is important for defence counsel to obtain eviat odds with the evidence of doctors who did not observe dence of the plaintiff ’s best case performance of activities of such symptoms. daily living. The goal at examination should be to get quanBialkowski was off work for a week after the accident, and tifiable and clear evidence from the plaintiff with respect to then returned but left after one hour. He never worked again. their abilities and disabilities so that when surveillance is obThe focus of the defendant’s case was that the plaintiff tained it can be judged objectively and the plaintiff will not lacked credibility and that he had failed to provide credible be able to explain it away with excuses suggesting they were evidence that his injuries were caused by the accident or experiencing “good days.”  that they continued to cause him any impairment. The defendant’s evidence of surveillance of the plaintiff provided Robert McGlashan is an associate with McCague Borlack objective evidence of him performing activities that he had and a CDL Board Member. His litigation practice includes intestified that he was unable to do. surance, professional negligence, personal injury, employment, In Le v Milburn, [1987] BCJ No. 2690 (SC), Madam Justice commercial, and family matters. Brittany Sud is a Summer Southin stated: “When a litigant practices to deceive, whether Student at McCague Borlack. CDL is a national organization by deliberate falsehood or gross exaggeration, the court has representing the interests of civil defence lawyers through CLE, much difficulty in disentangling the truth form the web of advocacy and networking within the insurance community. www.claimscanada.ca

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CIAA REGIONAL PRESIDENTS 2012 – 2013 NEWFOUNDLAND & LABRADOR Christopher Goodwin Crawford & Company (Canada) Inc. 96 Clyde Avenue, Suite 100 Mount Pearl, NL A1N 4S2 Phone: (709) 753-6351 Fax: (709) 753-6129 E-mail: Christopher.Goodwin@crawco.ca NOVA SCOTIA E. Grant King, BA, B.Ed., CIP Crawford & Company (Canada) Inc. 120 – 237 Brownlow Avenue Dartmouth, NS B3B 2C7 Phone: (902) 468-7787 Fax: (902) 468-5822 E-mail: Grant.King@crawco.ca NEW BRUNSWICK & PRINCE EDWARD ISLAND Luc Aucoin, BBA, FCIP Plant Hope Adjusters Ltd. 85 Englehart Street Dieppe, NB E1A 8K2 Phone: (506) 853-8500 Fax: (506) 853-8501 E-mail: laucoin@planthope.com QUEBEC/AESIQ Claude Nadeau Cunningham Lindsey 1250 Guy Street #1000 Montreal, QC H3H 2T4 Phone: (514) 939-1570 Fax: (514) 938-5445 E-mail: cnadeau@cl-na.com ONTARIO Dorothy Lowry, FIIC Crawford & Company (Canada) Inc. 14 & 15 - 431 Bayview Drive Barrie, ON L4N 8Y2 Phone: (705) 728-5597 Fax: (705) 728-2167 E-mail: dorothy.lowry@crawco.ca MANITOBA Timothy W. Bromley J.P. Hamilton Adjusters Ltd. 125 Enfield Crescent Winnipeg, MB R2H 1A8 Phone: (204) 944-1057 Fax: (204) 944-1606 E-mail: tbromley@mts.net SASKATCHEWAN Cheryl Hanson Crawford & Company (Canada) Inc. 210 – 227 Primrose Drive Saskatoon, SK S7K 5E4 Phone: (306) 931-1999 Fax: (306) 931-2212 E-mail: Cheryl.Hanson@crawco.ca WESTERN Russell Fitzgerald, CIP Kernaghan Adjusters Limited 203 – 4246 97 Street N.W. Edmonton, AB T6E 5Z9 Phone: (780) 488-2371 Fax: (780) 488-0243 E-mail: rfitzgerald@kernaghan.com PACIFIC David Porter, LL.B., FCIP, CRM Granite Claims Solutions 400-4370 Dominion Street Burnaby, BC V5G 4L7 Phone: (604) 699-6550 Fax: (604) 659-6570 E-mail: david.porter@graniteclaims.com

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National Standing Committees 2012-2013 ADVISORY Marie C. Gallagher, FCIP, CRM Granite Claims Solutions 71 King Street, Suite 204 St. Catharines, ON L2R 3H7 Phone: (905) 984-8282 Fax: (905) 984-8290 E-mail: marie.gallagher@graniteclaims.com E. Grant King, BA, B.Ed., CIP Crawford & Company (Canada) Inc. 120 – 237 Brownlow Avenue Dartmouth, NS B3B 2C7 Phone: (902) 468-7787 Fax: (902) 468-5822 E-mail: Grant.King@crawco.ca Greg G. Merrithew, CIP, FIFAA Arctic West Adjusters Ltd. 201 – 5204 – 50 Ave. Yellowknife, NT X1A 1E2 Phone: (867) 920-2212 Fax: (867) 873-2244 E-mail: gregm@arcticwest.ca James B. Eso, BA, CIP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca John Jones, BA Granite Claims Solutions Suite 300, 5915 Airport Road Mississauga, ON L4V 1T1 Phone: (905) 671-3164 Fax: (905) 671-1889 E-mail: john.jones@graniteclaims.com Rob Seal, CIP Cunningham Lindsey Canada 1102 - 50 Burnhamthorpe Rd. W., Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: 905-896-3485 Email: RSeal@cl-na.com Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com CIAA NATIONAL INSURANCE INDUSTRY ADVISORY BOARD Patti M. Kernaghan, FCIP, CRM Kernaghan Adjusters Limited 300 - 1575 West Georgia Street Vancouver, BC V6G 2V3 Phone: 1-800-387-5677 Fax: 1-800-387-5644 E-mail: pkernaghan@kernaghan.com John D. Seyler, CIP ProFormance Group 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@prospecialty.ca Marie C. Gallagher, FCIP, CRM Granite Claims Solutions 71 King Street, Suite 204 St. Catharines, ON L2R 3H7 Phone: (905) 984-8282 Fax: (905) 984-8290 E-mail: marie.gallagher@graniteclaims.com Greg G. Merrithew, CIP, FIFAA Arctic West Adjusters Ltd. 201 – 5204 – 50 Ave. Yellowknife, NT X1A 1E2 Phone: (867) 920-2212 Fax: (867) 873-2244 E-mail: gregm@arcticwest.ca Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com Patricia M. Battle Canadian Independent Adjusters’ Association/L’Association Canadienne des Experts Indépendants

August/September 2013

5401 Eglinton Ave. West, Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Toll Free: 1-877-255-5589 Fax: (416) 621-7776 E-mail: pbattle@ciaa-adjusters.ca James B. Eso, BA, CIP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: jim.eso@crawco.ca Laurie Walker, CIP Granite Claims Solutions 5915 Airport Road, Suite 300 Mississauga, ON L4V 1T1 Phone: (905) 740-1784 Fax: (905) 671-1889 E-mail: laurie.walker@graniteclaims.com Albert Poon, CIP Cunningham Lindsey Canada 1102 - 50 Burnhamthorpe Rd. W., Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com Jo-Ann Eccleston, CIP Aviva Canada Inc. 2206 Eglinton Ave. East Toronto, ON M1L 4S8 Phone: (416) 689-3328 Fax: 1-866-805-8585 E-mail: jo-ann_eccleston@avivacanada.com Bob Grouchy, BA, FCIP, CRM Allianz Global 1600 – 130 Adelaide Street West Toronto, ON M5H 3P5 Phone: (416) 915-4247 Fax: (416) 849-4555 E-mail: bob.grouchy@agr.allianz.ca Carol Jardine, FCIP, CRM TD Insurance 2161 Yonge Street, 4th Floor Toronto, ON M4S 3A6 Phone: (416) 486-2507 Fax: (416) 545-6022 E-mail: Carol.Jardine@tdinsurance.com Justin MacGregor Avec Insurance Managers - Inc. 25 Toronto Street, Suite 200 Toronto, ON M5C 2R1 Phone: (416) 862-9527 Fax: (416) 862-9388 E-mail: justin.macgregor@avecami.com Mark Stewardson, FCIP Royal & SunAlliance 2225 Erin Mills Parkway, Suite 1000 Mississauga, ON L5K 2S9 Phone: (905) 403-2333 Fax: (905) 403-2326 E-mail: Mark.Stewardson@rsagroup.ca

CAREER RECRUITMENT PLANNING Richard Swierczynski, BA, CIP AZ Claims Services Inc. 1500 Upper Middle Rd., Unit #3 P.O. Box 76041 Oakville, ON L6M 3G3 Phone: (905) 825-0027 Fax: (905) 825-5543 E-mail: Richard@azclaims.ca COMMUNICATIONS Teresa Mitchell, FCIP, CRM, FCLA, FCIAA, FIFAA Crawford & Company (Canada) Inc. 14 – 431 Bayview Drive Barrie, ON L4N 8Y2 Phone: (705) 728-5597 Fax: (705) 728-2167 E-mail: Teresa.Mitchell@crawco.ca CONSTITUTION & RULES John Jones, BA Granite Claims Solutions Suite 300, 5915 Airport Road Mississauga, ON L4V 1T1 Phone: (905) 671-3164 Fax: (905) 671-1889 E-mail: john.jones@graniteclaims.com CONVENTION David S. Riddell, FCIP, CRM Canadian Claims Services 17958 – 106 Avenue Edmonton, AB T5S 1V4 Phone: (780) 443-1185 Fax: (780) 443-1893 E-mail: driddell@canclaims.com DESIGNATION Paul W. Greening, CLA, FCIAA Greening Aviation Claims Inc. 26C Palliser Park, Box 190 Riverhurst, SK S0H 3P0 Phone: (306) 353-2000 Fax: (306) 353-2200 E-mail: pgreening@sasktel.net E. Brian Gough, FCIP, CLA, FCIAA Marsh Adjustment Limited 1550 Bedford Highway, Suite 711 Bedford, NS B4A 1E6 Phone: (902) 469-3537 Fax: (902) 469-2396 E-mail: ebgough@marshadj.com Robert V. Pearson, CLA, FCIAA Hansen Labelle Adjusters Ltd. 1328 17th Avenue N.W. Calgary, AB T2M 0R1 Phone: (403) 284-2211 Fax: (403) 284-2299 E-mail: bob@hansenlabelle.ca EDITORIAL Mary Charman, CIP Crawford & Company (Canada) Inc. 14 & 15 – 431 Bayview Drive Barrie, ON L4N 8Y2 Phone: (705) 728-5597 Fax: (705) 728-2167 E-mail: Mary.Charman@crawco.ca John M. Sharoun, FCIP, FCIAA, CRM Crawford & Company (Canada) Inc. 300 – 123 Front Street West Toronto, ON M5J 2M2 Phone: (416) 867-1188 Fax: (416) 867-1925 E-mail: John.Sharoun@crawco.ca

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

EDUCATION Santo Carbone, CRM, FCIAA Crawford & Company (Canada) Inc. 300-123 Front Street West Toronto, ON M5J 2M2 Phone: (416) 364-6341 Fax: (416) 435-0546 E-mail: Santo.Carbone@crawco.ca

Beth Bull ACE INA Insurance 1400 – 25 York Street Toronto, ON M5J 2V5 Phone: (416) 594-3067 Fax: (416) 368-0641 E-mail: beth.bull@acegroup.com

EMERGENCY MEASURES Richard Van Horne Action Investigations Inc. 2 Catelina Court Dartmouth, NS B2X 3G9 Phone: (902) 462- 1222 Fax: (902) 462-3688 E-mail: richardvanhorne@actioninvestigations.ca

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

FINANCE Russell Fitzgerald, CIP Kernaghan Adjusters Limited 203 – 4246 97 Street N.W. Edmonton, AB T6E 5Z9 Phone: (780) 488-2371 Fax: (780) 488-0243 E-mail: rfitzgerald@kernaghan.com

John D. Seyler, CIP ProFormance Group Inc. 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@prospecialty.ca Greg G. Merrithew, CIP, FIFAA Arctic West Adjusters Ltd. 201 – 5204 – 50 Ave. Yellowknife, NT X1A 1E2 Phone: (867) 920-2212 Fax: (867) 873-2244 E-mail: gregm@arcticwest.ca IBC: LIAISON, LEGISLATIVE & FORMS Paul Hancock, B.Sc., CIP Crawford & Company (Canada) Inc. 300 – 123 Front Street West Toronto, ON M5J 2M2 Phone: (416) 867-1188 Fax: (416) 867-1925 E-mail: Paul.Hancock@crawco.ca LICENSING J. Miles O. Barber, B.Comm. (Hons.), FCIP, CRM Network Adjusters Ltd. 67 Folkestone Blvd.

Winnipeg, MB R3P 0B4 Phone: (204) 897-5793 Fax: (204) 897-5797 E-mail: mbarber@mts.net MEMBERSHIP & QUALIFICATIONS Georgiana Chen, CIP ProFormance Group Inc. 1101 Kingston Rd., Suite 280 Pickering, ON L1V 1B5 Phone: (877) 539-3111 Fax: (905) 554-3776 E-mail: gchen@proadjusting.ca NOMINATING Greg G. Merrithew, CIP, FIFAA Arctic West Adjusters Ltd. 201 – 5204 – 50 Ave. Yellowknife, NT X1A 1E2 Phone: (867) 920-2212 Fax: (867) 873-2244 E-mail: gregm@arcticwest.ca John D. Seyler, CIP ProFormance Group Inc. 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@prospecialty.ca James B. Eso, BA, CIP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca Craig J. Walker, CIP, FCIAA, FIFAA Maltman Group International 3550 Victoria Park Ave., Suite 301 Toronto, ON M2H 2N5 Phone: (416) 492-4411 Fax: (416) 492-5657 E-mail: cwalker@maltmans.com PRIVACY James B. Eso, BA, CIP Crawford & Company (Canada) Inc. 539 Riverbend Drive Kitchener, ON N2K 3S3 Phone: (519) 578-5540 Fax: (519) 578-2868 E-mail: Jim.Eso@crawco.ca Keith P. Edwards, FCILA, CLA, FUEDI-ELAE CIAA Honorary Life Member c/o CIAA National Office 5401 Eglinton Ave. W., Suite 100 Etobicoke, ON M9C 5K6 Phone: (416) 621-6222 Fax: (416) 621-7776 E-mail: info@ciaa-adjusters.ca PROFESSIONAL PRACTICES Greg G. Merrithew, CIP, FIFAA Arctic West Adjusters Ltd. 201 – 5204 – 50 Ave. Yellowknife, NT X1A 1E2 Phone: (867) 920-2212 Fax: (867) 873-2244 E-mail: gregm@arcticwest.ca

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Consent Forms:

To Sign or Not to Sign?

It’s a question that is on the rise in insurer examinations

BY DEANNA GILBERT

In what seems to be an increasing phenomenon, injured plaintiffs/insureds are being asked to sign Consent Forms when they attend a tort defence medical examination or an insurer examination (“IE”) pursuant to the SABS. A common scenario arises when the plaintiff/insured is suddenly presented with a Consent Form; refuses to sign it without first consulting with her lawyer; the examiner refuses to proceed with the assessment; and the whole process is stalled.

Is There a Legal Requirement to Sign?

It must be clearly stated from the outset that there is no legal requirement that a plaintiff/insured sign a Consent Form before a defence medical or IE. More specifically: • There is no civil procedure or SABS provision which compels a plaintiff/insured to sign a Consent Form prior to a defence medical or IE. • The Superior Court and FSCO case law does not support the proposition that a Consent Form must be signed prior to a defence medical or IE. • There is nothing in the Health Care Consent Act, 1996, which requires an examiner to obtain a signed Consent Form.

• There are no regulatory college policies, procedures, or guidelines that mandate that an examiner obtain a signed Consent Form prior to proceeding with an assessment.

Health care professionals are required to obtain informed consent; however, this may be accomplished verbally or in writing. Further, when documenting consent in 44 Claims Canada

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writing, there is no requirement that this be done by way of a Consent Form. Rather, it can be a notation made in the examiner’s clinical records.

The challenge is that many health care professionals, in particular physicians, feel pressure to obtain a signed Consent Form for fear of being questioned by the College of Physicians and Surgeons of Ontario. None of the CPSO policies on 3rd party examinations, however, require a signed Consent Form; only some of the policies recommend that one be obtained. Further, policies are not law and the law does not require a Consent Form.

Are Consent Forms Really that Bad? Most Consent Forms are basic and “inoffensive”. In those circumstances, notwithstanding the absence of any legal requirement to sign, it may be better to sign rather than “making a mountain out of a mole hill”.

In other circumstances, the Consent Form may contain “offensive” provisions, which ought to be removed before the plaintiff/insured signs, if she signs at all. A non-exhaustive list of such provisions includes: • Disclaimer provisions (e.g. “I release Dr. X from any liability arising from this IE).

• Pro forma and/or overly broad provisions (e.g. “I agree to the assessor conducting an assessment of attendant care needs”…when the injury falls within the MIG, such that there is no entitlement to attendant care benefits).

• Provisions with unduly complicated language making the Consent Form difficult to understand or vague.

• Provisions authorizing the use of the test data for research-purposes (e.g. release of information beyond the www.claimscanada.ca

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scope of the defence medical or IE).

• Provisions containing blank spaces that the examiner may later fill in after the plaintiff/insured has signed (e.g.

“I consent to your speaking with _________________ after my assessment if you require more information”).

What Are Possible Consequences in Refusing to Sign?

Some examiners will refuse to proceed with the assessment. In both the tort and accident benefits context, the plaintiff/insured will likely have to re-attend on some other occasion. It may be with the same expert (if the Consent Form issue is resolved with the help of the lawyers) or a new expert who does not insist upon a signed Consent Form.

Apart from the inconvenience, in the tort context, this may delay other key steps in the litigation, such as mediation. In the accident benefits context, this may delay the determination of whether an Insured is entitled or continues to be entitled to receive a benefit. If the benefit is income replacement benefits, for instance, a delay may be very difficult upon the Insured.

Accordingly, it is in everyone’s interest – the plaintiff/ insured, examiner, and party who retained the examiner – to ensure that any Consent Form issues (including whether the plaintiff/insured will be asked to sign one) are dealt with well-in advance of the assessment.  Deanna Gilbert is an associate with Thomson, Rogers specializing in helping people who have been seriously injured as a result of motor vehicle accidents, slip and falls, medical malpractice, and assaults. www.claimscanada.ca

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EF

• education forum

A SERIES OF ARTICLES PROVIDED BY THE INSURANCE INSTITUTE OF CANADA

Strategic Stakes:

Assessing Your Firm’s Key Relationships

I

n addition to financial capital, all businesses require human capital: the knowledge, skills, and experience of people. And like any business, an adjusting firm needs to manage its human capital and its stakeholders effectively. The first step is to analyze current strengths and opportunities.

Stakeholders are individuals and groups that are affected by a firm’s performance or that have a claim – a stake – in its performance. Some stakeholders can affect a firm’s access to resources; others can shape the structure of the industry; and still others influence the overall environment in which the firm operates.

Stakeholders can be relatively remote (government, society as a whole) or immediate (customers, competitors). Some are suppliers of capital (shareholders, banks), some exercise oversight (regulators), some are part of the firm’s market (insurers, suppliers, alliance partners), and some are organizational stakeholders (employees at all levels).

Staking out the stakeholders A key challenge of stakeholder analysis is to assess whether each stakeholder poses a threat or represents an opportunity; and a key challenge of stakeholder management is to decide how to balance the conflicting interests of different stakeholders.

Here’s an exercise that can help you get started.

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1. Brainstorm a list of your firm’s stakeholders – all the companies or groups that affect or are affected by the activities of your firm.

2. Use a grid to sort your stakeholders in terms of how much interest they have in your firm’s activities and how much power they have to affect your firm. Draw a grid with four squares, labeled as in the diagram below.

HIGH POWER, HIGH POWER, LOW INTEREST HIGH INTEREST LOW POWER, LOW POWER, LOW INTEREST HIGH INTEREST Note each stakeholder firm or group in the appropriate box. Those in the upper right quadrant (high power, high interest) should be your firm’s highest overall priorities; those in the lower left quadrant (low power, low interest) should be the lowest priorities.

August/September 2013

3. Mark up the grid to indicate the stakeholders whose interests in your firm are aligned with each other and the stakeholders whose interests conflict. Brainstorm a list of actions that could help your firm to minimize or manage conflicts between stakeholders.

4. Identify which stakeholders you have a personal connection to, and any connections you know of between stakeholders and others in your firm. Are there “structural holes” in the network that need to be bridged to create value? If so, prioritize the gaps that need to be filled and brainstorm a list of actions that could help fill these gaps.

On the basis of this analysis, think about the key challenges in managing your firm’s stakeholders. Review your lists and identify the actions your firm could most easily undertake in the short term, given your resources and strategic priorities.

Social strengths In any industry, the interests of a firm’s various stakeholders sometimes conflict. The stronger a firm’s social networks – the personal or business relationships that connect people – the more information will be available to help the firm balance competing interests, and the more goodwill the firm will enjoy as it does so.

Whether they’re mediated through new technologies or conducted www.claimscanada.ca

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through more traditional approaches, social networks can provide access to a wealth of resources such as knowledge, ideas, skills, leads, opportunities and influence. By capturing information from a variety of sources, networks can increase the range and depth of information available in a firm, as well as the points of access to it. They can be a key tool for scanning the external environment for threats, opportunities and trends.

Social networks and social capital are particularly important in the property and casualty sector, where there is often a web of firms providing overlapping services, sometimes to the same client. Over the course of a single policy, a customer may deal with a broker when purchasing the policy, the insurer when submitting a claim, and an independent adjuster who investigates the claim. These firms need to maintain relationships with one another as well as with the insured customer. Social networks can help an adjusting firm develop a better understanding of its business partners.

Network knowledge The value of any network of relationships lies in its size, diversity and quality. Networks can develop through proximity (people who work near each other), similarity (people who have things in common), shared activities (such as working on the same project) or some combination. The most valuable network relationships often evolve naturally when people make contributions to a network out of a genuine desire to build relationships and further the group’s aims.

Consider the depth and breadth of your own work-related social network:

Social Media Methods Used effectively, social media can be a means of communicating with stakeholders and fostering networks of relationships. Savvy networkers use new technologies to provide value to their networks by sharing information, ideas and insights.

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1. Sketch your network, differentiating between your direct and indirect connections, and between your strong and weak direct connections. Where do your strongest connections lie? Do you have direct or indirect connections to key stakeholders? Where could you benefit from strengthening or adding connections?

2. Do you have connections both within and beyond your functional area? In your own organization and at others? New connections as well as long-established ones?

How could you make your network more effective?

es of knowledge transfer, leads or other resources? Which people play the key roles in these networks? Could the firm’s network be strengthened by enhancing those roles?

Investing in your network can yield benefits both for you and for your firm. Networks can facilitate knowledge transfer and problem-solving within the organization. Effective networks of relationships can also allow a firm to involve stakeholders in defining problems and generating potential solutions.

Firms that are able to do this well can turn stakeholder management

Social networks and social capital are particularly important in the property and casualty sector, where there is often a web of firms providing overlapping services, sometimes to the same client.

3. How have your strongest connections developed? What activities led you to the people in your networks? How can you enhance your contribution to your key relationships and to the networks you belong to? How can you expand your web of connections or become part of new networks?

4. Thinking about your firm or business unit as a whole, which networks seem to be important sourc-

into a strategic competency, leveraging their human and social capital to create value and achieve their strategic objectives.  This article is based on material used in the Insurance Institute’s FCIP program, the pinnacle of learning in Canada’s p&c industry. Focusing on strategic leadership and advanced management principles, the program blends academic business theory with practical insurance application.

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• on the scene OTS

Pat Van Bakel

Pat Van Bakel will take the reins of Crawford & Company (Canada) Inc. as its new president and chief executive officer. Succeeding John Sharoun, Van Bakel will be responsible for all facets of the Canadian organization, including all services supplied to the Canadian property and casualty insurance market, notes a statement from Crawford & Company. Crawford & Company (Canada) is a wholly owned subsidiary of Crawford & Company in Atlanta. l

In other company news, Crawford & Company announced July 3 that the management and adjusting team of Horizon Adjusters Ltd. has agreed to join Crawford’s Canadian operations effective Aug. 1. Bea Boutcher, president of Grande Prairie, Alta.-based Horizon, her team of five alllines adjusters and a support staff team will all be joining Crawford Canada. The group has more than 60 years of combined experience in handling all lines of insurance claims in northern Alberta and northern British Columbia, according to a statement from Crawford. l

Chris Andrews

Amanda Dean

Itech Environmental Services is pleased to officially welcome Chris Andrews as Project Manager for Emergency Response and Industrial Services. Chris is a well-established hazardous materials specialist and business development professional. He brings 14 years of extensive experience in emergency response service along with safe management and remediation of impacted sites throughout Ontario. l Insurance Bureau of Canada (IBC), the national trade association for Canada’s private home, car and business insurers, has announced the promotion and appointment of Amanda Dean as Regional Vice President, Atlantic Canada. Ms. Dean will be responsible for IBC’s government relations activities and community and stakeholder outreach initiatives across the region. l

Peter Flattery, CEO of the Healthcare Insurance Reciprocal of Canada (HIROC) is pleased to announce the appointment of Heather Brown as Vice President, Insurance Operations. Heather holds a RIBO licence and is now Principal Broker of HIROC Insurance Services Limited. She has also obtained an RPLU (an international professional liability underwritHeather Brown ing designation) and an MBA from the Rotman School of Management, University of Toronto. l STRONE and Itech are pleased to announce the opening of the newest joint branch in Belleville, Ontario. Regions served will include Belleville, Madoc, Marmora, Napanee, Trenton, Tweed, Hastings County & Surrounding Regions of Quinte Shores, East Northumberland County and Prince Edward County (Picton). “The addition of this Belleville Branch enhances our service coverage incredibly by filling a service gap along the 401 corridor,” comments Steve Blinco, CoCEO Support Services. “With the experienced personnel we are staffing in this branch, I expect a high level of customer service, knowledge, and professionalism to be evident with every claim.” l RSA is pleased to announce the appointment of Julie Pingree to Vice President, Commercial Insurance. Reporting to Donna Ince, Senior Vice President, Personal and Commercial Insurance, Julie’s mandate will be to grow RSA’s small to medium commercial book profitably, while enhancing the company’s broker service model and evolving ePolicy, RSA’s electronic trading platform. l

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It’s been a busy summer for mergers and acquisitions in the Canadian p&c insurance industry. The Travelers Companies, Inc. (NYSE: TRV) announced June 10 that it has agreed to acquire The Dominion of Canada General Insurance Company from E-L Financial Corporation Limited (TSX: ELF) for approximately $1.1 billion in cash, subject to adjustment. The Dominion and Travelers’ Canadian operations will be integrated and the combined organization will remain headquartered in Toronto. Meanwhile, global insurance brokerage Hub International Limited has agreed to be acquired by a San Francisco private equity firm for $4.4 billion in an announcement on August 6. Under the terms of the agreement, investment funds managed by Hellman & Friedman will hold a majority interest in the company, while members of Hub’s senior management will continue to have a significant equity position. The Chicago-based brokerage, which has roughly 6,500 employees in the United States, Canada and Brazil, is expected to have 2013 revenue of about $1.2 billion, after the annualized impact of acquisitions, according to Hub’s statement. l

www.claimscanada.ca

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APPOINTMENT

• on the scene OTS Cunningham Lindsey Canada Claims Services Ltd. President and CEO Rob Seal recently announced the introduction of District Managers to their field operations management structure effective today. “The insurance industry is evolving in terms of how and when our customers use our services,” said Seal. “We’re seeing a shift to more task based assignments and an emphasis on Account Management with its strict quality and service targets and verifiable proof of our performance against these targets. The District Managers will play a key role in providing an essential level of performance management within our field operation to ensure we meet our client expectations.” l

Guy Sanders Claude Blouin and Jamie Dunn, Partners at Blouin Dunn LLP, are extremely pleased to announce that Guy Sanders has joined the firm as an associate lawyer.

Guy received his B.Sc. in Law followed by his Juris Doctor degree from Western State University in 1986 and 1988, respectively. He was called to the California Bar in 1989 and to the U.S. Federal Bar in 1990. He practiced at a successful insurance litigation firm in California from 1993 to 2010, then moved to Ontario, where after passing his Barrister and Solicitor Exams, was called to the Ontario Bar in 2011.

Over the last 24 years, Guy has tried numerous judge and jury trials to verdict. As well, he has briefed and argued many cases before appellate courts. He has defended national trucking and transportation companies in negligence actions. His clients included global hotel chains, nationwide grocery stores and other commercial establishments in claims for premises liability and catastrophic injury.

He has successfully defended product liability suits involving, for example, motor vehicle rollovers and accusations regarding tainted foods.

He has also defended developers, construction companies and property owners against allegations of defective construction.

Guy is a member in good standing of the Law Society of Upper Canada and the Advocates’ Society. He is also a member of the Canadian, Ontario, American and California Bar Associations. He has lectured to university students, taught continuing education to lawyers and sat as a judge pro tem in the Los Angeles Superior Court.

Outside of work, Guy enjoys travelling the world with his lovely wife Gloria, cooking and surfing.

Guy’s contact information is: gsanders@blouindunn.com (416) 365-7888 ext. 161 Blouin Dunn is one of Ontario’s leading insurance defence firms whose members have been providing quality legal support to the insurance community for over 30 years. We offer services in Ontario to property and casualty insurers throughout North America, at all levels of experience, at appropriate and competitive rates.

www.blouindunn.com

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Granite Claims Solutions, a leading national claims management provider is pleased to announce that Henry Scullion has taken on the role of Branch Manager of its new Ajax, Ontario location. Henry brings with him over 29 years of claims adjusting experience, having held senior adjusting roles with national, independent adjusting firms. Henry is a fully licensed adjuster with exceptional skills in the areas of personal and commercial property, professional and product liability, and catastrophe claims. In addition to holding a Bachelor of Science degree from the University of Toronto, and having acquired his FCIP, CRM and CFEI, Henry has been an active member of the Insurance Institute as a course instructor and facilitator. l CRDN (Certified Restoration Drycleaning Network), an international organization of textile restoration experts serving the insurance industry, announces the ownership transition of CRDN of Greater Toronto to former CRDN Vice President Garry Bradamore and business partner, Tom Saridis. The CRDN of Greater Toronto franchise territory, the largest in Canada by population, was previously owned and operated by Jack Creed of Creeds Dry Cleaning. CRDN has 14 locations throughout Canada, in all the major metropolitan areas, as well as locations throughout the U.K. and United States. l Ken Tucker, CEO of DKI Canada, and Mike Foley of Foley Restoration DKI are pleased to announce Adam Tzarik as the Director of Business Development – Central Region. Adam has spent the past 8 years working with Foley Restoration DKI Canada as the Director of Marketing and Sales. In addition Adam is the chairman of the central task force for DKI Canada and also acts as the Most Loyal Gander for the Blue Goose – Ontario Pond. In other news, DKI Canada is proud to announce that Garbutt Construction has joined the organization. Garbutt has provided property restoration services in the Stayner, Ontario area for over 12 years. l Natural catastrophe statistics for the first half of this year have been dominated by severe flooding events, although the overall losses were below the average for the last decade, according to Munich Re. Overall, the first half of the year had 460 loss-relevant natural hazard events, slightly above the 10 year average of 390, the reinsurer said Tuesday. But at about $45 billion, natural catastrophe losses for the first half of 2013 are below the 10 year average of $85 billion, the company said. Insured losses totalled approximately $13 billion (under the 10 year average of $22 billion). All figures are in U.S. currency. Roughly 47% of the overall losses and 45% of the insured losses for the first six months of the year were from inland flooding in Europe, Canada, Asia and Australia, according to Munich Re.l New Brunswickers with questions about insurance claims following the July 20 tornado that caused extensive damage, particularly in the Grand Lake region, are advised to call for more information. Amanda Dean, vice president, Atlantic Region for the Insurance Bureau of Canada (IBC), encourages residents with insurance questions to contact the bureau’s Atlantic Consumer Information Centre. “It is absolutely critical to know how you can protect your family and your home, and what your insurance policy covers in the event of an emergency,” Dean emphasizes in a statement. IBC reports that the tornado left a path of uprooted trees, damaged buildings, and displaced vehicles from Whites Cove and Cambridge Narrows to Juniper, which are popular cottage and agricultural areas in the province. l

August/September 2013

www.claimscanada.ca

13-08-22 9:21 AM

The National Oceanic and Atmospheric Administration in the United States has updated its outlook for this year’s Atlantic hurricane season, slightly reducing its initial forecast, but still predicting an above-normal number of storms. There have been four named storms since the season began in June, including Andrea, Barry, Chantal, and Dorian. “Significant activity is expected for the remainder of the season, with an additional 9-15 named storms likely, of which 6-9 are expected to become hurricanes with 3-5 reaching major hurricane status,” the NOAA said in early August. Major hurricanes are those classified as Category 3, 4 or 5. l Specialist lines underwriting agency, CFC, has significantly enhanced its market leading cyber policy, CPM. Based on over 13 years experience of insuring against cyber risks, the revamped policy includes crucial new coverage that truly reflects the changing landscape of cyber risk faced by companies in Canada.

Unlike many policies that are simply a carbon copy of those sold in the US and focused on privacy and data breach notification, CPM takes a bold step in embracing and tackling head on the issue of cyber crime faced by companies operating across different territories around the world including the “new” crimes of phishing scams, telephone hacking, identity theft, wire fraud and cyber extortion. l American International Group, Inc. (NYSE: AIG) announced today that effective July 1, 2013, the Chartis brand was retired in Canada and that the AIG Property Casualty insurance business in Canada will operate as AIG Insurance Company of Canada (“AIG Canada”) going forward. AIG Canada also announced today the launch of a new bilingual website tailored to inform and meet the needs of its Canadian audience at: www.aig.ca l With nearly 10 million square kilometres and close to one million kilometres of road to call home, Canadians are no strangers to the draw of the open road and to the significant role that a car can play in our lifelong journey. In a new campaign launched today, Canada’s largest collision & glass franchise network, CARSTAR, is aiming to celebrate the priceless moments in life’s journey that Canadians experience in - and with – their cars and to remind them that CARSTAR is there to help whenever they hit a bump in the road. Through television, social media and contesting CARSTAR will explore many of these moments and express the underlying theme that the joy is often in the journey, and not just in the destination. l Owners of First General Ottawa, Richard Crate and Gerry Denomme were pleased to be presented with a Gold Flame plaque by WICC in recognition of their continued generous support over the past three years. First General Ottawa was presented with the WICC Ontario Chapter ‘Gold Flame’ award at the WICC Gala in Toronto on April 11th, 2013. The Gold Flame award is presented to an organization that has made a donation exceeding a certain amount and/or an organization who has made significant contribution to WICC. l

www.claimscanada.ca

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CIAA New Members — April 2013 ASSOCIATE MEMBERSHIP Wiz & Associates

Mumbai, Maharashtra, INDIA

CORPORATE MEMBERSHIP James Taylor Company (1983) Ltd

Sherwood Park, AB

INDIVIDUAL MEMBERSHIP Crawford & Company Ron Taylor Joanne O’Driscoll John Shores William Len Raymond Mark Beattie Ben Patterson Patrick Richardson

Edmonton, AB St. John’s, NL Calgary, AB Edmonton, AB St. Catharines, ON Hamilton, ON Hamilton, ON

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

QA Adjusting Company Theodore A. Teterenko Randy Stephens

Winnipeg, MB Winnipeg, MB

Level 3 Level 1

Canadian Claims Services Inc. Dawn Fuchs Edmonton, AB

Level 1

Coast Claims Service Ltd. Warren Nicholson Jakov (Yako) Topalovic

Level 1 Level 1

Port Alberni, BC Victoria, BC

Kernaghan Adjusters Limited Colin Schadlich Calgary, AB Stephanie Wood Edmonton, AB Cindy Menzie Duncan, BC Brad MacDonald Revelstoke, BC

Level 2 Level 2 Level 1 Level 1

Plant Hope Adjusters Limited Marcel Deschenes Grand Falls, NB Carol Messervey Bedford, NS

Level 3 Level 3

James Taylor Company (1983) Ltd Fred Schaitel Sherwood Park, AB Level 3 Midwest Claims Services Jamie Birns Darren Kuznitsoff

Saskatoon, SK Regina, SK

Level 1 Level 2

Thirteen catastrophe bonds closed during the second quarter of this year, Aon Benfield Securities reported Wednesday in its latest quarterly report. With a total value of $3.3 billion, the first half of this year has reached a total issuance of nearly $4 billion, the highest level since 2007, according to the investment banking division of Aon Benfield. During the second quarter, coverage was offered for regional earthquake and hurricane, Turkey earthquake and Australia cyclone, as well as multi-peril across the United States, the company said. As of June 30, the total catastrophe bond limit outstanding was $17.5 billion. l

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

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

August/September 2013

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APPOINTMENT

• on the scene OTS The National Association of Independent Insurance Adjusters (NAIIA) held its 76TH Annual Conference June 17 – 20, 2013 in Hilton Head Island, South Carolina. CIAA members were in attendance. l

Aaron J. Wachna Claude Blouin and Jamie Dunn, Partners at Blouin Dunn LLP, are extremely pleased to announce that Aaron J. Wachna is now an associate lawyer at the firm.

Aaron received an Honours Bachelor of Arts degree in Political Science from the University of Windsor in 2007. From 2007 to 2009, he worked in the field of personal injury law.

Aaron obtained his Juris Doctor in 2012 from the University of Windsor Law School, where he graduated in the top 20% of his class. While attending law school, Aaron was an intern mediator at the University of Windsor’s Community Mediation Clinic.

He gained valuable insight and experience as a summer student at a Toronto insurance defence firm during the summer months of 2010 and 2011.

From left: Fred Plant, Past President, CIAA; Pat Battle, Executive Director, CIAA.; John Seyler, President, CIAA.

Aaron articled at Blouin, Dunn LLP and was called to the Ontario Bar in 2013. During his articling year he was responsible for all Small Claims Court files and motions, legal research and he appeared in the Superior Court of Justice on numerous occasions.

Aaron is a member in good standing of the Law Society of Upper Canada, the Canadian Defence Lawyers and the Toronto Lawyers Association.

Outside of work, Aaron’s interests are largely focused on travelling with his wife and enjoying golf, baseball, volleyball and snowboarding.

From left: Kevin Wood, President, CharFrom left: John Seyler, President, CIAA; Mike Csom, Past President, tered Institute of Loss Adjusters (CILA); NAIIA; Pat Battle, Executive Director, Chris McDowell, President, NAIIA 2012 – 2013; John Seyler, President, CIAA. CIAA.

Aaron’s contact information is: awachna@blouindunn.com (416) 365-7888 ext. 153 Blouin Dunn is one of Ontario’s leading insurance defence firms whose members have been providing quality legal support to the insurance community for over 30 years.

We offer services in Ontario to property and casualty insurers throughout North America, at all levels of experience, at appropriate and competitive rates.

www.blouindunn.com

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From left: Mark Nixon, President, From left: Fred Plant, Former President, CIAA; Walid Jishi, President, In- NAIIA 2013 – 2014; John Seyler, Presiternational Institute of Loss Adjusters dent, CIAA. (IILA); John Seyler, President, CIAA.

August/September 2013

www.claimscanada.ca

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The Ontario Insurance Adjusters Association (OIAA) held its 2013 Provincial Claims Conference hosted by OIAA Niagara Chapter on May 9 and 10 in Niagara Falls at the Fallsview Casino. The event hosted 112 exhibitors at the trade show portion as well as six seminars.

The lunch speaker was David Chilton, author of The Wealthy Barber and the Wealthy Barber Returns. l

www.claimscanada.ca

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• on the scene OTS Risk managers from across Ontario gathered on May 15 for the Annual General Meeting of the Ontario Chapter of the Risk and Insurance Management Society (ORIMS). The AGM was held at the Hockey Hall of Fame in Toronto.

During the event, ORIMS 2012-13 president David Beal passed the cup to ORIMS 2013-14 president Suzanne Barrett. l

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August/September 2013

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For more information visit www.winmar.ca August/September 2013

Claims Canada 55

13-08-21 3:58 PM

• on the scene OTS The Restoration Contractors Organization of Canada (RCOC) held its inaugural Annual General Meeting and Supplier Exposition at the Sheraton on the Falls Hotel in Niagara Falls, Ontario on June 17–18. RCOC was formed two years ago by eight contractors - Winmar, Canadian Disaster Restoration Group, DKI Canada (then Disaster Kleenup Canada Ltd.), BELFOR, FirstOnSite Restoration, Service Master of Canada, First General Services Ltd. And Paul Davis Systems – to represent contractors in matters such as safety and regulatory affairs. As of mid-June, RCOC had 35 members. l

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August/September 2013

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• on the scene OTS CSN Collision and Glass held its 7th annual Golf Tournament on June 5 at Piper’s Heath Golf Club in Milton, Ontario. Guests enjoyed a fabulous day on the links and the evening concluded with dinner and prizes, with CSN donating $10,000 to the MakeA-Wish Foundation. l

The Newtron Group hosted its annual Summer Picnic at Albion Hills Conservation Area on July 6. Guests were treated like family and spoiled with a BBQ feast, live music and the now famous “Italian Grape Juice.” l

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October/November 2013

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• on the scene OTS Giffin Koerth held its annual golf tournament, the “Giffin Koerth BIG DIVOT” on July 19 at The Club at Bond Head in Bond Head, Ontario. On the links, players were treated to dramatic hole elevation changes and beautiful fairways. TSN has used the famous north course sixth hole in commercial shoots.

Guests also enjoyed a fabulous lunch, a wonderful assortment of prizes and the ceremonial presentation of the “BIG DIVOT” trophy. l

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• on the scene OTS The Canadian Independent Adjusters Association Ontario Region Executive held their Annual General Meeting & Conference June 13-15 at the Oakwood Inn & Golf Resort in Grand Bend. Events included the Executive’s annual general meetings, elections, golf & spa day and 2 educational seminars. l

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We’ve remained true to our core for 60 years.

Kernaghan Adjusters has remained an independently owned Canadian firm since 1953. We stand out as independent adjusters who live our core values of trust, accountability, professionalism and innovation.

Our corporate culture and our adjusting expertise attract new talent to our national team. We continue to build strong business relationships with our clients and provide service excellence across Canada.

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D o i n g W h a t I s R i g h tÂŽ 1.800.387.5677 | kernaghan.com

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© 2013. RSA is a registered trade name of Royal & Sun Alliance Insurance Company of Canada. “RSA” and the RSA logo are trademarks used under license from RSA Insurance Group plc.

Complete Offering

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OUR CLAIMS SERVICE TEAM IS ALWAYS AVAILABLE. Our Canada-based Claims team is committed to assisting your clients immediately, wherever and whenever they need us. From our mobile response vehicles and guidance and counselling services to our Fast Track claims and preferred recovery and repair suppliers, our dedicated, compassionate team has the resources your clients need to keep moving forward. It’s all part of the RSA Advantage.

We stand behind the facts. We stand behind our brokers. rsabroker.ca Personal Insurance

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