Claims Canada August/September 2015

www.claimscanada.ca

August/September 2015

Official Journal of the Canadian Indeépendent Adjusters’ Association

THE

BIGGER

THEY COME

The greater the need for forensic engineers in investigating complex claims

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Contents AUGUST / SEPTEMBER 2015 • VOLUME 9 • NUMBER

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Cover Feature 12 THE BIGGER THEY COME Complex losses frequently necessitate the use of forensic experts, namely engineers. Even for seasoned adjusters, issues such as causation, coverage and surrounding circumstances may be too complicated in certain claims scenarios. That’s when they need to tap into the expertise of forensic specialists. Clear lines of communication, well-preserved evidence and as much advance notice as possible are the keys to the right working relationship, according to several forensic engineers.

BY CRAIG HARRIS

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Spotlight 20 The Right Network Former CIAA president Miles Barber heads up Manitoba-based Network Adjusters Ltd., a firm focused on quality of service and individual attention to customer needs.

BY CRAIG HARRIS

Education Forum 40 Anchoring an Adjuster’s Education A new report from the Conference Board of Canada shows the important role of the CIP designation in adjuster training and education.

News Features 22 Lessons from Below Subsurface construction, such as shoring walls, can present clients and adjusters with unexpected exposures.

BY GEOFF LAY

30 The Yellow Light Dilemma Drivers face split-second decisions at intersections – an accident might not be as simple as it first appears.

26 Contract, Conflict and BY JOSEPH JAKYM Subrogation 34 Face Fact or Face The law of the jurisdiction plays a key role in Fiction? insurance contract interpretation and rights of recovery.

BY TIFFANY CHEVERIE

28 Starting Points Pre-accident health status and earnings form the foundation of damages quantification in personal injury claims.

BY MATTHEW ROSE and KATERYNA SHPIR

How to develop social media evidence in litigation to best effect.

BY MAX HUFTON

38 Five Common Fire Culprits

Departments 4 First Notice 42 On The Scene

The threat of residential fire can emerge from several potential sources.

Columns

BY MENA COSTANDI

10 President’s Message

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40 Education Forum

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• first notice FN Alberta regulator concerned with Uber’s insurance Alberta’s Superintendent of Insurance has reviewed Uber’s insurance policies and found “significant issues with regulatory compliance.” In late July, the Superintendent issued an advisory notice on ride sharing services and the “insurance risk they currently pose to Albertans.”

“The Superintendent of Insurance is of the view that Uber’s supplemental insurance policies do not currently meet the requirements of Alberta’s Insurance Act and regulations,” Superintendent Mark Prefontaine wrote in the advisory, noting that the regulations are in place to ensure Albertans have access to insurance protection and accident benefits, including timely injury treatments, in the event of a collision or loss.

“The Superintendent is committed to working with Uber and other ride sharing services, to ensure that Albertans using ride sharing services have access to insurance protection and accident benefits under Alberta law,” Prefontaine added.

The Superintendent warned that owners and drivers participating in ride sharing services with Uber are at risk of not having access to coverage provided by the Automobile Policy, Section B – Accident Benefits, which provides coverage

mainly for medical expenses incurred due to a collision. “Owners and drivers are at risk of having limited or no third party liability coverage to pay for a potential legal claim if the driver is responsible for a collision that causes injury or damage to a passenger, pedestrian, or other party,” the advisory said.

“Owners and drivers are also at risk of not having access to collision coverage to fix any damage to the vehicle.”

Prefontaine suggested that vehicle owners and drivers participating in ride sharing services should speak to their insurance agent, broker or company to ensure adequate coverage for themselves and others.

In related news, a law firm with offices in Windsor, Ont. and Toronto has filed a $410 million class-action lawsuit against Uber X and Uber XL on behalf of all taxi and limousine drivers, owners and brokers licensed in Ontario.

Sutts, Strosberg LLP filed the lawsuit in July with the Ontario Superior Court of Justice, the law firm said in a press release. It was filed on behalf of all “taxicab owners, taxicab drivers, taxicab brokers, limousine owners, limousine drivers and limousine service companies licensed, permitted or authorized to operate in the Province of Ontario.” l

B.C. wildfires take a heavy toll

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Relentless forest fires burning across British Columbia may be the new normal, British Columbia Premier Christy Clark warned on July 23, according to the Canadian Press. Clark spoke outside West Kelowna, where flames have forced emergency officials to issue evacuation orders to the residents of 70 homes.

As of late July, the province has spent more than $140 million battling the 1,300 wildfires that have broken out this season, and Clark said the province could spend another $300 to $400 million this year if the pace continues.

“I am mostly concerned... that the forest fire season won’t give us a break and that we’re going to see more homes threatened, more people’s livelihood threatened, more forest resources lost,” Clark told the Canadian Press.

In a separate study, the journal Nature Communications, reported that fire weather seasons have lengthened globally by nearly 20% between 1979 and 2013. The study, titled Climateinduced variations in global wildfire danger from 1979 to 2013, found that globally, fire seasons have lengthened across 29.6 million km2, or 25.3% of the Earth’s vegetated surface, resulting in an 18.7% increase in global mean fire weather season length.

The study, which was released in July, also showed a doubling (108.1% increase) of global burnable area affected by long fire weather seasons and an increased global frequency of long weather seasons across 62.4 million km2 (53.4%) during the second half of the study period.

“If these fire weather changes are coupled with ignition sources and available fuel, they could markedly impact global ecosystems, societies, economies and climate,” the study’s authors wrote. l

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• first notice FN Federal government invests $237 million in cyber security The federal government announced on July 22 $142.6 million in cyber security funding – in addition to the $94.4 million for cyber security identified in Economic Action Plan 2015 – making a total investment over the next five years of $237 million.

Steven Blamey, Canada’s Minister of Public Safety and Emergency Preparedness, joined John Manley, president and CEO of the Canadian Council of Chief Executives, to announce the investments to advance Canada’s Cyber Security Strategy, Public Safety Canada (PSC) said.

The new funding will be used to “better protect essential cyber systems outside of the federal government by enhancing collaboration with the private and critical infrastructure sectors,” PSC noted.

This includes a greater capacity for the Canadian Cyber Incident Response Centre to respond to, and mitigate, cyber incidents in the private sector. Through the development of real-time automated feeds, the private sector will receive additional threat information and faster dissemination, PSC noted in a backgrounder.

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The investment will also be used to develop policing expertise to detect and disrupt cybercrime activities through dedicated resources and training, with the RCMP to establish a “dedicated investigative team to combat highpriority cybercrime.”

“As long as our digital infrastructure continues to evolve, there will always be those who try to exploit vulnerabilities to undermine Canada’s national security, public safety and economic prosperity,” Blaney said. “Collaboration and information-sharing with critical infrastructure sectors and private sector partners is our best defence to protect our essential cyber systems.”

Launched in 2010, Canada’s Cyber Security Strategy is built on three pillars: securing government systems; partnering to secure vital cyber systems outside the federal government; and helping Canadians to be secure online. In 2013, the Canadian Anti-Fraud Centre received more than 16,000 complaints of cyber-related fraud (email and website scams), accounting for more than $29 million in reported losses, PSC reported. l

www.claimscanada.ca

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Claimspro becomes member of CIAA

Insurers face competition from new sources: Celent

ClaimsPro, Canada’s largest independent adjusting and claims management company, announced on July 23 that it is becoming a member of the Canadian Independent Adjusters’ Association (CIAA).

The Toronto-based CIAA was created as an industry body established to promote and represent common business interests of licensed independent adjusters within the insurance industry.

Its mission is “to provide leadership for Canada’s independent adjusters through advocacy, education and recognition of professional standards,” the association said on its website.

Ross Betteridge, president of ClaimsPro, said that the company is pleased to join the CIAA and to engage with the broader independent adjuster community. “We believe this decision further demonstrates our leadership in the industry and we look forward to being an active member in helping to set the strategic agenda for the association,” he said.

Albert Poon, president of CIAA, added that “we are very excited to welcome ClaimsPro into the only organization solely representing the professional interests of the Independent Loss Adjusting profession. The addition of ClaimsPro represents a significant increase in resources and expertise for the CIAA and will be of considerable benefit for all members.”

ClaimsPro has been working with Canada’s domestic insurance market for more than 25 years and has offices in every province throughout the country. l

Barriers to entry into property and casualty insurance markets are being eroded, demanding that insurers innovate or face the potential that the p&c industry could diminish in size at an accelerating rate, cautions a new study by Conning.

This erosion is taking place as risk data becomes more widely available and as new capital sources disrupt traditional insurers, notes a statement in July from Conning, an investment management company for the global insurance industry.

Innovation in Property-Casualty Insurance: Responding to a Changing Value Proposition explores the relevance and value proposition of the p&c insurance industry in the face of challenges today, presents responses from many leading insurers, and offers scenarios for potential future outcomes and solutions.

The p&c insurance industry “faces unprecedented challenges, including emerging risks, changing technology, alternative capital and a decline in the relevance of the industry’s traditional products,” the report states.

“The value proposition of the insurance industry rests on the two foundations of managing information about risk and providing a large pool of capital to absorb risk – both of these are under attack,” Jerry Theodorou, vice president of insurance research for Conning, said. l

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• first notice FN CAT losses relatively light in first half of 2015 2015 first-half catastrophe activity in the North America – the vast majority in the United States – was the lightest since the first six months of 2010, resulting this year in US$8.1 billion in insured losses, note figures released in late July by Property Claims Services (PCS), a Verisk Analytics business.

PCS designated 26 catastrophe events (25 in the U.S.) in North America in the first half of 2015. This 20% increase in frequency was coupled with the 36% decrease in severity, notes Barely a Whisper: PCS Q2 2015 Catastrophe Review, available to users of the company’s loss aggregation service.

“The trend toward increasing numbers of smaller events continues. Last year’s first-half total was pushed higher by five events that each had more than US$1 billion in insured losses. This year, only one attained that level,” the report states.

As such, “2015 is below the first-half, ten-year average of US$10.4 billion despite having frequency above the 10-year average 19.9 events,” PCS points out.

“We’ve been closely watching the trend toward smaller, more frequent catastrophes,” Joe Louwagie, assistant vice

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

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

Craig Harris Editor (905) 873-7691 craig@editinsight.com

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Christine Giovis Account Manager (416) 510-5114 christine@canadianunderwriter.ca

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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 NEWCOM Business Media Inc. 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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president of PCS, said. “For claims departments across North America, this may have implications for catastrophe response planning, and the claims community should remain vigilant: Hurricanes Katrina, Rita and Wilma followed the quietist first half in the past 10 years,” Louwagie adds.

For the second quarter of 2015, PCS designated 17 catastrophe events in North America producing US$5.3 billion in insured losses. The US$5.3 billion tab brings 2015 first-half Cat losses to US$8.1 billion, a 36% drop from the US$12.6 billion for the same period south of the border in 2014.

“However, total catastrophe losses for the first half of 2015 could go higher, with estimates pending for three North American events (two in the United States and one in Canada),” notes the PCS statement.

Canada, for its part, had one designated Cat event in 2015 Q2, occurring at the end of the quarter.

“The wind and thunderstorm event affected Alberta and Saskatchewan, causing $56 million in insured losses,” states the report. l

Claims Canada

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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.

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Message from the President La Plume du Président ALBERT POON

Consolidation is a fundamental part of today’s property and casualty insurance industry. Recently, there has been a surge of merger and acquisition (M&A) activity in the marketplace. ACE Ltd’s ’s $28.3 billion proposal to purchase The Chubb Corp., announced in July, is just the latest in a string of blockbuster announcements. Hardly a week goes by without someone mentioning a big deal (or at least rumor) looming on the horizon.

According to a recent A.M. Best report, Active M&A Market for Canadian P&C Insurers Expected to Continue, market consolidation has been a hallmark for insurance over the past several years. In 2014, Canada’s top 10 p&c writers, as ranked by A.M. Best, generated 66.2% of the market’s direct premium, compared with 56% in 2007, the report noted.

Looking ahead, A.M. Best said that as the industry moves into the third quarter of 2015, it “anxiously awaits the next merger that is likely around the corner. While time will tell when the next big deal goes from a mere discussion to a full blown announcement, there are a myriad of factors that could lead to continued activity over the near- to mid-term. In addition to the competitive market pressures, the desire for scale and access to additional distribution channels as well as regulatory developments will likely influence how quickly the market consolidates.”

Is this a good thing? One can debate the pros and cons of consolidation endlessly. One can also speculate about the role of regulators and whether they will put in place controls on the level of concentration in the insurance industry.

But the fact is, as adjusters, we have to face the reality of larger insurance players and ongoing M&A activity. Those who think their relationships are solid and their markets secure may be in for a big shock when the latest round of amalgamation announcements hit the headlines.

Often, insurer corporate decisions on which adjusting firms will be used (or the degree of in-house staff adjusting) are made at a head office or senior management level, with little regard for past relationships or service history.

To paraphrase Pierre Trudeau, it is a lot like sleeping next to an elephant – one is affected by every twitch and grunt.

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La consolidation constitue une partie fondamentale du secteur de l’assurance de dommages. Il y a récemment eu un élan en matière de fusion et d’acquisition d’entreprises au sein du marché. La proposition de 28,3 milliards de dollars effectuée par ACE ltée pour l’acquisition de The Chubb Corp annoncée en juillet ne représente que l’élément le plus récent dans une liste d’annonces de grande envergure. Pas une semaine ne passe sans que l’on mentionne qu’une importante transaction (ou au moins une rumeur) se profile à l’horizon.

Selon un récent rapport d’A.M. Best intitulé Active M&A Market for Canadian P&C Insurers Expected to Continue, la consolidation du marché a représenté une caractéristique principale du secteur de l’assurance au cours des dernières années. D’après le rapport établi par A.M. Best, les souscripteurs en assurances de dommages se classant parmi les 10 meilleurs au Canada en 2014 ont généré 66,2 % des primes directes du marché, comparativement à 56 % en 2007.

En ce qui concerne l’avenir, A.M. Best a déclaré qu’au troisième trimestre de 2015, l’industrie « attend impatiemment la prochaine fusion qui approche possiblement à grands pas. Bien que le temps nous dira lorsque la prochaine transaction importante passera d’une simple discussion à une annonce de grande envergure, il y a de nombreux facteurs qui pourraient conduire à la poursuite des activités à court ou à moyen terme. En plus des pressions concurrentielles du marché, le désir de croissance et l’accès à des canaux de distribution supplémentaires ainsi que l’évolution de la réglementation auront probablement une incidence sur la rapidité à laquelle le marché se consolide. » Est-ce un élément positif? Nous pouvons débattre infiniment des avantages et des inconvénients de la consolidation. Nous pouvons également émettre des suppositions au sujet des rôles des organismes de réglementation et s’ils mettront en place des mécanismes de contrôle en ce qui concerne le degré de concentration au sein du secteur de l’assurance.

Toutefois, le fait est que, en tant qu’experts en sinistres, nous sommes confrontés à une réalité où il existe des acteurs plus importants dans le secteur de l’assurance et des fusions et acquisitions d’entreprises de façon continue. Ceux qui pensent que leurs relations sont robustes et que leur marché est sûr pourraient tomber à la renverse une fois que les dernières annonces de regroupement feront la une. Bien souvent, les décisions des entreprises d’assurances sur lesquelles s’appuieront les cabinets d’experts en sinistres (ou le degré d’experts en sinistres en interne) sont prises au siège social ou par la direction, au mépris des relations passées ou de l’historique de service. Pour paraphraser Pierre Trudeau, c’est comme dormir avec un éléphant; on subit chacun de ses mouvements et de ses grognements. www.claimscanada.ca

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Much like insurance companies, independent adjusting firms have seen their own share of consolidation in recent years. There are several larger national companies that have put their stamp on the adjusting profession and continually vie for market share in a competitive economy.

At CIAA, we represent adjusting firms of all sizes. We are agnostic when it comes to the question of whether larger companies or smaller operations are the appropriate fit for the marketplace. The fact is there is no right or wrong answer. Niche players in geographic regions or specialty business lines play a key role in serving customer needs.

So too do large national or regional independent adjusting firms that have invested in economies of scale, technology and resources to handle complex client demands. It is this diversity in our membership that lends strength and vitality to our organization.

That certainly doesn’t mean it is easy to find the common ground that will please all adjusters when it comes to our priorities – advocacy, professional development, continuing education and regulatory liaison. But it’s an ideal that we pursue in our board meetings and in all of our discussions with individual members and regional chapters.

In the midst of ongoing consolidation and change, the emphasis on broad membership representation is a constant that will continue to guide the CIAA in all of our efforts. n

Ces dernières années, comme les entreprises d’assurance, les cabinets d’experts en sinistres indépendants ont connu leur lot de consolidation. Plusieurs entreprises nationales importantes ont marqué la profession d’expert en sinistres et rivalisent continuellement pour obtenir des parts de marché au sein d’une économie concurrentielle. À l’ACEI, nous représentons les cabinets d’experts en sinistres de toutes tailles. Nous sommes indécis en ce qui a trait à savoir quelle est la place qui convient aux petites ou aux grandes entreprises au sein du marché. Le fait est qu’il n’existe pas de bonnes ou de mauvaises réponses. Les acteurs occupant des créneaux dans des régions géographiques ou dans des secteurs d’activités spécialisées jouent un rôle essentiel pour répondre aux besoins de la clientèle. Il en va de même pour les grands cabinets d’experts en sinistres indépendants nationaux ou régionaux qui ont investi dans une économie d’échelle, la technologie et les ressources pour gérer les demandes complexes des clients. C’est la diversité parmi nos membres qui renforce notre organisation et qui lui insuffle de la vie.

Cela ne veut certainement pas dire qu’il est facile de trouver les points communs qui plairont à tous les experts en sinistres quant à nos priorités, soit la défense d’une cause, le perfectionnement professionnel, la formation continue et la liaison réglementaire. Il s’agit toutefois d’un idéal que nous poursuivons lors de nos réunions du conseil d’administration et de toutes nos discussions avec des membres individuels et des sections régionales.

Au milieu de la consolidation et du changement continu, l’accent sur une représentation d’un large éventail de membres représente une constante qui continuera de guider l’ACEI tout au long des efforts que nous déployons. n

NATIONAL EXECUTIVE 2014 - 2015 President Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com 1st Vice-President Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. 535 North River Road, Unit 3 Charlottetown, PE C1E 1J6 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca Secretary Monica Kuzyk, FCIP, CRM Curo Claims Services 125 Northfield Dr. W., P.O. Box 218 Waterloo, ON N2J 3Z9 Phone: (866) 952-2876 Fax: (519) 888-9704 E-mail: mkuzyk@curocanada.com

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Treasurer John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca Past-President Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com 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 James B. Eso, CIP, CIOP 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 Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@cl-na.com 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

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• cover story

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Complex losses frequently necessitate the use of forensic experts, namely engineers. Even for seasoned adjusters, issues such as causation, coverage and surrounding circumstances may be too complicated in certain claims scenarios.

That’s when they need to tap into the expertise of forensic specialists.

Clear lines of communication, well-preserved evidence and as much advance notice as possible are the keys to the right working relationship, according to several forensic engineers.

By CRAIG HARRIS

B

uilding collapses. Mechanical equipment failures. Complex multi-vehicle accidents.

The scope of large-scale and complicated loss events applies to a wide range of claim scenarios.

Determining the root cause of these events is often a specialized task that goes beyond the skill sets of independent adjusters. So whom do they call? Forensic engineers.

“Though retaining and managing a forensic expert can add complexity, it also can supply the clarity necessary to promptly and fairly settle a claim,” notes John Goff, a senior general adjuster at Crawford and Company, who wrote an article on the subject for U.S.-based Claims Magazine called Rules of Engagement. “Forensic experts can add value in resolving three broad claim-related issues: causation, coverage and cost.”

Types of Losses What are the most common types of claims that require the skill sets of forensic engineers? The response varies, according to sources (while there are other forensic specialists, such as accountants, this article focuses on forensic engineering). www.claimscanada.ca

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“Forensic engineers are most often retained to investigate failed materials, products, structures or components that have caused personal injury or damage to property by not operating or functioning as intended,” notes Mazen Habash, president and consulting forensic engineer, Origin and Cause Inc. “Forensic engineers serve to validate the true origin and cause of a loss, providing clients with the information required to identify any fraudulent activities, subrogate the cost of damages from the responsible party, and/or pursue litigation.”

Much of the work that forensic engineers are required to do involves an exploration of the “unknown,” according to Richard Nellis, assistant vice president with EFI Global, part of the Cunningham Lindsey family of companies.

“The work typically includes a technical unknown that the adjuster needs an answer to,” he says. “There can be several reasons for this. The first reason is to determine the cause of the claim, so a decision on liability can be made. Is the claim a result of an insurable risk? If not, then there is no insurance and therefore no claim.”

Nellis notes that other factors come into play after causation. “Once the

cause of the loss is determined, then the next question is, are there any contributing factors to the losses? Can the loss or a portion thereof be attributed to another party, such as subrogation? Finally, what are the costs of restoration? Are engineering services required to remediate the loss and minimize any future ongoing liability concerns? Forensic engineers can assist with answers to all of these questions,” he adds.

More specifically, claims that require the expertise of forensic engineers often involve issues related to building and construction, says Philip Sarvinis, managing principal at Read Jones Christoffersen Consulting Engineers.

“Typically, we get referred from adjusters and claims managers for situations with physical damage to building structures or building enclosures as a result of physical damage due to neighbouring developments or demolition, car impacts, building leaks, wind damage and overloading,” he notes.

The scope of loss scenarios can, however, extend to everything from bodily injury to building and vehicle fires to building mechanical (HVAC, plumbing, frost and water damage) to material failures to environmental spills to collision

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reconstruction, according to the forensic engineers at CEP Inc. Claims can also vary in size.

“The (types of losses) can include small run-of-the-mill claims with small budgets requiring some field work but little analysis,” notes JeanFrançois Goulet, a forensic engineer with CEP. “(They can also involve) medium size claims with some field work and analysis required but under budget constraints or… large claims where the engineer is given ‘free range’

to do research, testing, purchase tools and so on.”

Randy Henderson, who is in charge of client management at Arcon Forensic Engineers, notes that claims are often classified by type of loss and relevant discipline.

“Engineering firms tend to group losses by the engineering discipline: Biomechanical, Electrical, Fire & Explosion, Civil & Structural, Environmental, Mechanical, Collision Reconstruction,” Henderson observes.

“Adjusters and lawyers often describe the losses by the type: structural failure (basement, walls, roofing system), structural assessment (after a fire, impact or weather event), structural design & reconstruction, personal injury (can arise from slip, trip or fall, auto accident, product failure), liability (personal or product), fire loss (property – auto and structural). There’s often overlap with either methodology which makes strict categorization difficult,” he adds.

For Joseph Jakym, a forensic engineer with Roar Engineering, the deciding factor in when experts get involved in a claim is not necessarily size but determination of liability.

“Forensic engineers can be involved in varying sizes of losses, from small losses (examples include slight impact of motor vehicles and product liability) to large complex technical losses,” Jakym observes. “Generally, subrogation and liability are the driving forces behind engaging a forensic engineer. Insurers that are aware of their exposure to losses will try to mitigate their exposure by subrogating or defending potential liability claims.”

Claims Challenges Certain types of losses can present a myriad of challenges to forensic engineers, according to sources.

“The matters that are especially challenging are the typical services that forensic engineers provide: fire investigation, structural collapse/damage assessments, vehicle accident reconstruction, material failures, and slip/trip and falls,” Nellis notes. “All of these require getting to the cause of the reported claim event.”

“When it comes to personal injury claims, we often get involved years after the original incident,” Henderson observes. “One of the biggest challenges with these files is incomplete details regarding the incident or loss of evidence that could be integral to the quality of the analysis. With some fire and structural damage claims, site clean-up or reconstruction may have already begun by the time we are engaged.”

For building and materials damage, Sarvinis reports that numerous factors can affect the proper determination of causation.

“The most difficult ones are those requiring us to decipher what is insurable damage as a result of an accident and what was caused by natural wear 14 Claims Canada

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August/September 2015

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and aging of a building,” Sarvinis notes. “Our background and experience is the repair and restoration of natural building deterioration and age is the primary tool that assists us in accurately reporting the fact and providing the background to justify our opinion.”

It is not just the kinds of losses, but also the point at which forensic engineers are contacted in the claim investigation, the amount of time that has lapsed since

the actual loss and any spoliation of evidence that can make things more complicated.

Henderson notes that “losses where there are a number of parties involved can be problematic in terms of coordination of experts for evidence inspection.

In certain types of files, our engineers can be contacted well after an initial loss, and after examination of the site is impossible – this can make it difficult to determine causation.”

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This lack of evidence often represents an obstacle for forensic engineers, according to Jakym. “The losses that are particularly problematic are matters in which we are provided with little evidence, often due to being retained long after the originally available evidence has been lost or destroyed,” he says. “If the adjuster waits too long to hire an engineer, the quality of the opinion that can be offered can be weakened significantly.”

The evidence issue can become especially onerous if the case proceeds to trial, Jakym adds. “Forensic engineering is an extremely complex scientific field and requires a unique combination of skill, experience and technical expertise,” he notes. “The most challenging losses are those that end up at trial. The courtroom is a ‘sink or swim’ type of environment and if your hypothesis can’t withstand the test of a serious challenge then it will become readily evident at trial.”

“Regardless of the type of loss or level of severity, a vital component to any investigation is the integrity of the physical evidence available for investigation,” Habash observes. “When we walk into a scene, every single item in the room and its positioning tells the story of what actually happened. If something has been moved or manipulated, the challenge we most often face is identifying the missing pieces of the puzzle, piecing them back into the scope of the investigation, and establishing a clear picture of what took place. “ There are other potential hurdles in complex claims that may include “delayed investigation mandates, spoliation of evidence in fires due to official investigations and early remediation by emergency contractors and electricians or coverage issues (that) may be difficult to address for lack of cooperation from the insured,” according to Joel Turcotte, a forensic engineer with CEP. In some cases, it could be a lack of coordination amongst adjusters that leads to undue delays. “(In some situations), cases keep being transferred from one adjuster to another with little or no communication between the adjusters,” notes Goulet.

Adjuster Opportunities There are several tips that forensic engineers recommend to adjusters to aid in a thorough, complete and timely investigation. These extend to expedited contact of forensic engineers early in the www.claimscanada.ca

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process, selection of the proper qualified expert, securing of evidence (especially if other parties are involved, such as emergency responders or contractors) and clear lines of communication.

“Our suggestions for adjusters include – contain and secure the site as soon as possible, maintain integrity of any potential evidence, get an expert opinion as soon as possible, be specific as to what is required of the expert, specify what budget constraints or approvals are necessary and the turnaround time and type of report required, attend the site with the expert, process invoices as soon as possible,” notes Henderson.

“Call us early,” Nellis concurs. “Our practice is that phone calls are free. So call and discuss and then decide whether or not we can help. This also helps to minimize cost to the file, as information is critical and the best information will be found sooner rather than later. We want to base our decisions on the best available information and that is most easily obtained early in the process,” he adds.

For Habash, the phrase “time is money” sums things up well. “The longer it takes to secure a scene, the higher the probability of spoliation of evidence, which in turn lowers the probability of a quick, conclusive investigation, and extends the life of a claim,” he says. “My recommendation to loss adjusters would be to contact a forensic engineer as soon as possible.”

Evidence preservation is another critical component of the investigation stage for adjusters, according to sources. “It is vital to ensure that evidence does not get destroyed or altered,” Jakym notes. “Preserving evidence at the site will dramatically increase your chances at recovery.

Recording and documenting the site and interviewing witnesses should all be completed as soon as possible so that this evidence is fresh and unaltered.”

However, evidence preservation may not be a straightforward process, especially in a large loss event that involves emergency responders and other personnel.

“Providing clear instructions to first responders to preserve the scene of the loss, until otherwise instructed by a forensic expert, is most certainly a recommended best practice,” Habash notes. “In line with this, another key best practice is preventing the spoilage of evidence by A National Network of Independent Law Firms ensuring that the area or item of interest is secured and stored properly.”

“We are frequently told that an item has been moved to a contractor’s facility and when we arrive to complete our examination, the item is sometimes left outside to rust or is thrown in a pile of other evidence,” Habash continues. “If the chain of custody is not well documented, and if the item is not preserved and stored correctly, the success of a conclusive determination of causation may prove difficult to achieve.”

Additionally, the proper selection of experts plays a vital role in the success-

ful execution of the claims handling process. “(My) advice would be to make sure that your consultant is truly an expert in the field they have been asked to consultant on,” Sarvinis says. “A seasoned expert in all aspects or claims may not be the best choice over a specialized individual – if the claim relates to a building structure, your expert should be a structural engineer. If the claim is electrical in nature, the expert should be an electrical engineer.”

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When is a medical examination considered a second examination under Rule 36 of the New Brunswick Rules of Court?

The ARC Legal Reporter v. Crowther and Kelly Case: Winter IssueReported – Article #1 Blyth 2009 NBCA 80 Citation: At Issue:

When both the plaintiff’s physical and mental condition are in issue in an action, and the plaintiff undergoes a physical examination, will a subsequent application for a psychiatric examination be considered an application for a second medical examination?

When is a medical examination considered a second examination Should medical examinations that are ordered as part of the discovery process be characterized as ‘independent’ medical examinations? under Rule 36 of the New Brunswick Rules of The Court?

Court of Appeal of New Brunswick Court: www.claimscanada.ca August/September 2015 Claims Canada 17 ARC_Fleet ad_1/2 page.indd 1

Reported Case: Citation: At Issue: p12-19 COVER STORY.indd 17

Judgment Rendered: Factual Summary:

October 13, 2009 (Reasons delivered November 2015-02-14 26, 2009) 1:05 PM The plaintiff suffered injuries in a motor vehicle accident and commenced an action seeking damages. Both the plaintiff’s physical state and mental state were in issue in the action. The plaintiff submitted to a physical examination by the defendant’s expert, but subsequently refused to submit to a psychiatric examination.

Blyth v. Crowther and Kelly 2009 NBCA 80 When both the plaintiff’s physical and mental condition are in issue in an action, and The adefendant made a motion requesting an order that the plaintiff submit to the the plaintiff undergoes a physical examination, will a subsequent application for 15-08-26 8:10 PM psychiatric examination. The motions judge granted the order. The plaintiff appealed, psychiatric examination be considered an application for a second medical

“Many adjusters will say that their cases rarely go to court, so they use quasi-technical consultants that will complete a superficial job for little cost and will never be able to defend their opinions at court,” Jakym notes. “The missed recovery opportunities are not easily accounted for because evidence gets buried and the claim gets paid. When every loss is classified as ‘undetermined’ than shoddy manufacturers and workmanship will always win the day.”

“It is recommended that the appropriate expert is selected for the loss in question,” Habash agrees. “Avoid the ‘jack of all trades’ type of forensic expert. This discernment puts an adjuster at a strategic advantage to accurately determine coverage and equips you with reliable documentation in the event the claim starts heading toward the path of litigation.”

A clear line of communication between adjusters and forensic engineers is also critical – both at the outset in the form of an assignment letter and in terms of ongoing interaction throughout the investigation.

In his article, Goff notes that: “While setting clear expectations may eliminate unnecessary back and forth between parties, additional dialogue during the course of the assignment is essential, particularly if the claim professional ex18 Claims Canada

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A clear line of communication between adjusters and forensic engineers is also critical – both at the outset in the form of an assignment letter and in terms of ongoing interaction throughout the investigation. pands the assignment, changes a deadline, or adjusts the budget.”

“When using an expert, the adjuster typically needs to be even more proactive about file management than usual, and should diary regular contact with the expert. The more severe or complex the claim, the more often they should be talking,” Goff observes.

Forensic engineers at CEP agree with this assessment. The importance of ongoing discussions about budget, timeline, deadlines and difficulties are key to a successful working relationship, according to Jean-François Joubert, president and chief executive officer of CEP. “Give feedback – If you’re unhappy about something, tell your expert. He or

August/September 2015

she wants to know,” Joubert notes. “Ask about cost-to-date from time to time.

Your expert should keep you in the loop but when things get busy this sometimes gets pushed back.”

Forensic Trends Forensic engineers can play an invaluable role in determining causation of often complex loss events. But how they are involved in the actual claims process may be changing in the future when it comes to subrogation, litigation – and even the relationship with adjusting firms. There has been ongoing debate in the industry about ownership ties of adjusting firms to forensic engineering companies. Some argue that this could taint the objectivity of expert opinion, particularly at trial.

“There appears to be a certain trend in consolidating forensic firms with large independent adjusting firms,” Joubert says. “Forensic engineers have to remain objective/unbiased. Forensic engineering companies and insurances companies would be better served if they remained independent of each other.”

“True independence means that the forensic engineering firm has no ties to adjusting firms, insurance companies or insurance brokers,” Jakym notes. “A perceived bias at trial by a judge, whether it is justified or not, will end up hurting a case.” www.claimscanada.ca

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Adjusting companies that have direct or indirect relationships with forensic engineering firms say that their separate management and ownership structures create proper lines of division and ensure that no conflict of interest or perceptions of bias exist. There has been no case law in Canada specifically related to alleged conflicts of interest and cross-ownership of adjusting and forensic engineering services.

Habash notes that other factors are coming into play when it comes to litigation strategies and the credibility of forensic evidence.

“As the Canadian insurance industry becomes increasingly litigious, we are seeing a very clever defense strategy being used,” Habash explains. “There has been a marked shift of focus on spoliation of evidence by counsel. In many instances, experts are not being challenged specifically on their technical opinion as they traditionally have been, but rather on the evidence from which they formed their opinion. The strategy is simple: if the integrity of the evidence can be brought in question, then the expert’s opinion can easily be discredited,” he adds.

Another trend is the focus on subrogation opportunities early in the claims process, according to Habash.

“We are seeing a huge shift in our industry, with an increased focus on exploring opportunities for subrogation,” he notes. “It seems our clients are realizing the value of completing a thorough and efficient forensic investigation on the front-end of a claim, rather than hiring a forensic expert months or even years down the road to piece things together.

“We predict that this shift of priorities – from price tag to quality of findings – will continue to grow in the Canadian market as insurers begin to see a higher return on investment for investigations that are initiated earlier on in the claims process,” Habash concludes.

For Nellis, trust is the glue that holds the working relationship between adjusters and forensic engineers together. “I expect that the future will continue with increased collaboration between service providers to the insurers,” he says. “The insurers’ goals will remain the same: to control cost and liability and close projects in an efficient and timely manner.”

“In my experience, clients don’t want surprises and need to know there is reliability and consistency of service with the company and individuals they choose to work with. Trust . . . will www.claimscanada.ca

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likely always be the key to long-term relationships with loss adjusters,” Nellis adds.

“Slowly, the engineers and adjusters are starting to realize that they are on the same team,” Sarvinis observes.

“They are both starting to realize that understanding each other’s position and opinions and working together effectively makes the assignment run much smoother.”

For adjusters like Goff, the measure of how forensic engineers and adjusters

can work together is in the nature of the agreement and the results achieved in a specific investigation.

“Done well, the work of a forensic expert can improve the claim experience and strengthen the relationship between adjuster and client,” Goff concludes. “Of course, the opposite also is true. Just as wise adjusters know when to involve an expert, they also know that mastering the rules of engagement with them can provide a fair and timely outcome for all.” 

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• spotlight S

The Right Network

Former CIAA president Miles Barber heads up Manitoba-based Network Adjusters Ltd., a firm focused on quality of service and individual attention to customer needs.

By Craig Harris

W

innipeg native Miles Barber has a term he likes to use – the “ten per centers.” What does it mean?

“If you go into any industry or community, there is ten per cent of the population who will step up and volunteer,” he says. “The other 90 per cent will applaud them, support them, but more or less stay in the shadows.”

Why is that relevant? As the owner and principal adjuster of Network Adjusters Ltd., Barber notes: “We look at ourselves as leaders who get involved in our profession and in our local communities; we want to be that ten per cent.”

The proof is in the commitment pudding. And for the three senior adjusters and two full-time support staff who comprise the firm, there is a lot in the mix.

In addition to Barber, Network Adjusters is home to well-known veteran adjuster Craig Shanks, who is regional president of CIAA’s Manitoba chapter, as well as Jim Magnan, a seasoned adjuster who has been an active member of the Manitoba and Ontario Insurance Adjusters’ Associations. The three represent a lifetime of volunteerism and giving back to their industry.

Barber’s passion for insurance adjusting started straight from graduating in 1985 from the University of Manitoba with an Honours Bachelor of Commerce degree, when he spotted an ad for an adjuster trainee in the newspaper.

“I didn’t know what an adjuster did, so I asked my father, who ran a local insurance agency in Winnipeg,” he recalls. “He gave me the basics on what adjusters do and told me that the p&c insurance industry was an honourable choice as a career investment.

So I applied and got the job.”

The “job” was with a smaller local independent adjusting firm. Barber learned the ropes and found himself gravitating to liability claims as an area of interest. “If you look at the resident licensed adjusters in Manitoba, there are not a lot of adjusters specializing in casualty claims” he says.

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“It’s an interesting area; no two claims are exactly the same. There are always different loss scenarios involved.”

The small local adjusting company where Barber got his start was bought by a large national firm in the late 1980s, and Barber continued his career as a liability claims specialist in that environment.

His career took a new turn when he became national president of the CIAA for the 2006-2007 term.

“

We have made this profession our lives, and we communicate effectively with our clients, insureds, brokers, claimants, and lawyers.

”

“That experience was invaluable; I am very grateful to the CIAA for having been able to serve as president,” he observes. “In that role you see different adjusters – from national to regional firms to Mom and Pop shops and what they are experiencing in every region. When I look back it really gave me a lot of insight and perspective on the issues facing all adjusters.”

It also prompted Barber to pursue a dream he had for several years: starting his own independent adjusting firm. “It really lit the fire,” he recalls. “The timing was right.”

With the support of his wife Valerie, also an insurance and risk management professional, and their three sons, Barber started Network Adjusters in the fall of 2007.

Shanks left a national adjusting firm and signed on with Network in 2011; Magnan came out of retirement after a long career to join in 2014.

August/September 2015

Network Adjusters has two offices in Manitoba: Winnipeg and Brandon. It is an all-lines adjusting firm that serves customers in a broad geographical area spanning Manitoba, Saskatchewan and Northwestern Ontario.

“It is not uncommon for us to boat or fly into certain locations,” Barber remarks.

“Our adjusters can be on site for days. It depends on what the client wants.”

For Barber, the transition from employee to owner was a positive adjustment.

“Either way – employee or owner, you have your clients, but when you have your own firm, that’s where the business starts and stops,” he observes. “With your own firm, you are more flexible (than with a larger adjusting firm) and can tailor your services more directly to what the client wants. You can also offer a quicker response – you are not checking with the regional VP or head office manager. You make a promise, you deliver on it and you are accountable for it; there is no intermediary.”

Of course, going out on your own also means facing competitive pressure from larger or regional firms. It’s a sink or swim environment, but Barber notes there are coping strategies for smaller adjusting firms.

“I would say that technology is the great leveler,” he observes. “If you have the resources, any size of firm can offer online file and time management services, which is what clients are looking for. Because of the progress in technology, there is a much more level playing field today.”

Barber explains that Network Adjusters pursues other points of differentiation in the marketplace.

“You have to look at it from the main business cornerstones – the quality of service, the cost of service, field investigation experience, communication skills and intellectual abilities in terms of technical policy knowledge,” he says. “In regards to your clients, can you sit down and knowledgeably discuss the results of the loss investigation, policy interpretation - coverage issues, and www.claimscanada.ca

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From left: Marlene Gauthier, Miles Barber, Craig Shanks, Jim Magnan (Missing; Marlene Magnan)

quantum of damages? In regards to claimants and plaintiff ’s legal counsel, can you represent your client’s position in a clear – articulate manner?”

The “quantum of experience” that Network Adjusters holds amongst its three veteran adjusters is impressive, with more than 90 collective years of service. “Our clients come to us for our experience and expertise.

We know how to conduct a thorough investigation, review coverage, report clearly and provide quality recommendations on the loss being adjusted,” notes Barber.

“We have made this profession our lives, and we communicate effectively with our clients, insureds, brokers, claimants, and lawyers,” he adds. “You have to use your field experience, your technical knowledge, policy understanding and take that and apply it to the situation at hand, and then communicate clearly to all of the parties involved.

I think those are but two of the many attributes that differentiate us at Network Adjusters; our knowledge base and that we communicate effectively.”

In an age when the focus is on efficiency, cost control and flat-fee adjusting, Barber and his firm represent a contrarian approach. www.claimscanada.ca

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“We don’t treat our loss adjusting files as commodities – there are a lot of adjusting firms and insurance companies that take a cookie cutter, one-size-fits-all approach,” he observes. “There are factors and nuances to every claim; we take the time to meet with the insured and conduct a thorough field investigation. By using the commodity approach, the insurer may save money on the expense side of the file but they will likely incur higher costs on the indemnity side of the file; a one-size-fits-all approach does not work on all files.”

With his varied experience in working for different types of clients that range from insurers to SIR’s and T/P Administrators, and his role as a former CIAA president, Barber also maintains perspective on the evolving nature of the loss adjusting profession.

“When I think back eight years ago to my time with the CIAA executive team, it is still etched indelibly on my mind that no matter which corporate flag was flying in the wind behind each executive committee member, we tried to find common ground solutions that would benefit all adjusters,” he says. “We looked for the high water mark for all adjusters, whether that was continuing education, expedited disaster response

at the provincial level, licensing, advocacy or professional development.”

Now as an adjuster principal, Barber still finds ways to give back to the profession and sets a high water mark for himself and his firm. He just represented CIAA as a panel speaker at a workshop held by the Manitoba government on climate change, infrastructure preparedness and disaster response. This fall, he will be teaching the Risk Management Principles and Practices course through the University of Winnipeg in collaboration with the Manitoba Chapter of RIMS, as well as presenting the CIP Society Pro-edge “Ethics is Good Business” seminar in Winnipeg.

Whether the organization in need is the regional CIAA chapter, the Insurance Institute, the Loyal Order of Blue Goose or a community group, stepping up to volunteer is what makes Network Adjusters tick, according to Barber.

“When we are asked to do a seminar on a certain topic or volunteer for our industry, we can take the time to accept the request.”

Barber concludes. “If you don’t give back to the profession and to your community, then progress does not occur. It means a lot to us – you have to give back.”

Spoken like a true ten per center. 

August/September 2015

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Lessons from below

Subsurface construction, such as shoring walls, can present clients and adjusters with unexpected exposures.

By Geoff Lay

Subsurface construction presents a unique and challenging risk. Owners often consider it a temporary expense that takes place out of sight and adds little value to a development. For example, when looking at the Burj Khalifa in Dubai, few people would marvel at the shoring walls for the foundation of what is presently considered the tallest building in the world.

All subsurface construction, whether a basement, underground parking facility or utility trench, requires the completion of an excavation. Although routine, even minor excavation operations carry inherent risk. When a failure does occur, the financial costs are significant, with remediation costs alone often exceeding the million dollar mark.

This article is an introduction to shoring walls, and the mechanical support systems used to reinforce the walls of large excavations. These subsurface support systems are both essential to safe and successful excavation and vulnerable to numerous failure scenarios. Hopefully, this will remove some of the mystery surrounding the world below the surface.

Sheet Pile Tieback

Photograph 1 – Steel sheet wall with tieback anchors

Shoring Walls Shoring walls are essential in providing support to the walls of an excavation and preventing excavation collapse. Excavation and shoring wall installation can be difficult even in competent soils due to the natural variability and complexity of soils. The risks are increased when excavating in ground containing soft, highly compressible clays, a high groundwater table or when excavating close to adjacent buildings/structures and utility or transportation corridors. Although these constraints can be accounted for through proper shoring wall design and construction, failures can still occur as a result of human error,.

Depending on the amount of deflection tolerated by shoring walls, they are classified as either flexible or rigid. Flexible walls experience some deflection while rigid walls generally experience little to no deflection. The selection of a type of wall will depend on the ground conditions and the project requirements.

Examples of flexible retaining walls include steel sheet pile walls with post-tensioned tieback anchors (Photograph 1), and soldier beam walls with wood lagging and anchors (Photograph 2). More rigid retaining walls include reinforced concrete slurry walls and contiguous caisson walls, with additional support from bracing or tieback anchors.

Lateral Earth Pressure All retaining walls, whether flexible or rigid, are designed to resist various applied pressures without experiencing excessive deformation or catastrophic failure. Retaining walls ex22 Claims Canada

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August/September 2015

Wood lagging Soldier pile Photograph 2 – Solider piles with wood lagging

perience earth pressure and may also experience hydrostatic (water) pressure, seepage pressure (if there is groundwater flow behind the wall), surcharge pressure (due to surface load acting at the top of the excavation), frost pressure during subzero environments, and earthquake pressure in seismically active zones.

Depending on the type of retaining wall and the soil conditions, the lateral earth pressure on a wall can vary significantly.

Various pressure distributions have been developed for different walls and soil conditions. Rigid walls, such as concrete walls, are commonly designed for a triangular lateral earth pressure distribution, wherein the lateral earth pressure on the wall inwww.claimscanada.ca

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creases linearly with depth. Flexible retaining walls, like temporarily supported braced walls, are commonly designed for trapezoidal distributions, and termed ‘apparent lateral earth pressure distributions.

The pressure distribution on a wall is determined using published formulations, which have been developed in part through pressure measurements on actual walls. When the appropriate formulation is selected and correctly applied, it should provide a conservative estimation of the pressure applied to a retaining wall. Correct application of these formulations is essential, as errors may lead to the underestimation of the actual lateral earth pressure on the wall, which can result in the wall being critically under-designed.

Giffin Koerth has investigated several shoring wall collapses wherein the lateral earth and water pressure was underestimated (Figure 1). In Figure 1, three pressure distributions are shown, with each pressure distribution normalized to represent a percentage of what should have been the design pressure. For these three distributions, the average pressure initially considered in the design represented between about 50% and 60% of the actual pressure that should have been considered.

0.6

depth / wall height

0.2

0.4

0.6

0.8

1.0 0 20 40 60 80 100

% of Required Pressure

Figure 1 – Lateral Pressure Distributions as Percentage of Correct Pressue

heating the face of the wall with propane heaters during the subzero winter months.

Frost-protection measures are often recommended by geotechnical engineers, but sometimes are not implemented in the field due to cost and schedule impacts during construction.

However, the cost to insulate and heat a temporary rigid or flexible retaining wall could represent a fraction of the remediation cost should a failure occur due to the development of excessive frost pressures.

Installation Errors and Construction Deficiencies Even if a shoring wall is properly designed, and frost-protection measures are implemented, a failure may still occur if the wall is improperly installed or if construction practices do not take into consideration the seriousness of maintaining the integrity of the excavation.

Issues often occur when bracing is removed to permit foundation wall construction as the building construction advances upward. While removal of bracing is typical, premature removal of bracing can lead to lateral deformation of the shoring wall. This can damage adjacent buildings, as soil behind the wall upon which the buildings are founded shifts downward and laterally.

Additionally, many municipalities require that tiebacks be de-stressed (load released by severing) as construction within an excavation progresses upward. This requirement is intended to eliminate safety concerns for workers who may be excavating in the future and potential adverse impacts to existing infrastructure, such as gas pipelines or underground fiber optic lines. However, like bracing removal, destressing may impact adjacent structures, as it allows for the relaxation of the shoring wall and the movement of the retained soil behind the wall.

Due to the lateral wall deformation that can result from tieback de-stressing and bracing removal, it is important that such practices be done in a progressive and controlled fashion.

Condition assessments of adjacent buildings should always be completed prior to any excavation or construction activity, as the possibility will always exist for this activity to damage adjacent buildings.

Conclusion Frost Pressure The Canadian climate presents unique challenges to subsurface construction. In most parts of the country, winter temperatures result in freezing of the near-surface ground for several months each year. This ground freezing results in volumetric expansion of the moisture within the soil, which can apply pressure to adjacent structures, like shoring walls.

These pressures can be significant, measuring several times greater than earth and hydrostatic (water) pressures applied to the wall.

Mitigation measures for a shallow retaining wall may include backfilling the wall with granular fill, a non-frost susceptible backfill, and ensuring sufficient drainage and surface barriers to isolate the wall and backfill from sources of water and moisture. For temporary rigid or f lexible retaining walls, measures could involve dewatering to lower the water table and lessen the moisture content of the soil, in combination with applying insulation to the face of the wall, and 24 Claims Canada

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Excavations are challenging due to the natural variability and complex nature of soil. However, the risk of failure and collateral damage can be greater in areas where soft, highly compressible clays are present, the groundwater table is high or when excavating near buildings/structures and utility or transportation corridors. Under these circumstances, it is particularly important that proper design is executed and sound construction methods are followed.

If properly designed and installed, a shoring wall should provide continuous support to the walls of an excavation with minimal wall deflection and adjacent ground surface settlement. However, when a failure does occur, the result is often catastrophic, with the potential for personal injury, significant financial costs associated with remediation, and possible litigation. î — Geoff Lay is a technical engineering associate with Giffin Koerth. www.claimscanada.ca

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Contract, Conflict and Subrogation

The law of the jurisdiction plays a key role in insurance contract interpretation and rights of recovery.

By Tiffany Cheverie

A claim in tort is properly commenced in accordance with the lex loci delicti commissi, Latin for “law of the place where the delict [tort] was committed.” But in automobile accident claims, the laws of an outside jurisdiction also may impact the value of a plaintiff’s claim.

For example, consideration must be given to section 113A of the Nova Scotia Insurance Act to determine whether a defendant has the right to deduct LTD payments made by an insurer to a plaintiff. Section 113A provides: In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by all payments in respect of the incident that the plaintiff has received …for income loss or loss of earning capacity …under an income-continuation benefit 26 Claims Canada

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plan if, under the law or the plan, the provider of the benefit retains no right of subrogation. [Emphasis added] A similar provision exists in Newfoundland and Labrador’s Automobile Insurance Act, which states that a plaintiff’s damages “shall be reduced …if the provider of the benefit retains no right of subrogation.” As a result, a benefit provider’s subrogation right (e.g. LTD insurer) can be materially relevant to the assessment of damages in a tort claim.

The existence of any subrogation right is to be determined in accordance with the laws governing the contract of insurance, which jurisdiction may be different than the laws governing the tort claim. A contractual subrogation right may be limited by the laws under which the contract of insurance is to be interpreted.

Choice of Law A contract of insurance will be interpreted in accordance with the choice of law chosen therein. The Supreme Court of Canada has confirmed

August/September 2015

parties to a contract are free to designate the law governing the contract, with no requirement of a connection to that jurisdiction (Syncrude Canada Ltd. v. Hunter Engineering, 1989 Carswell BC 37 SCC). Therefore, if a contract of insurance indicates it shall be interpreted in accordance with the laws of Alberta, for example, any court must interpret the contract within the context of that province.

If a contract does not specify the law of the contract, the decision of the Supreme Court of Canada in Imperial Life Assurance Co. of Canada v. Colmenares, 1967 CarswellOnt 65 (SCC) (“Colmenares”), provides guidance.

This decision holds that the proper law for contracts of insurance is to be determined by considering the contract as a whole “in light of all the circumstances which surround it” and applying the law of the jurisdiction with the “closest and most substantial connection” to the contract.

In Colmenares, a Cuban national entered into a life insurance contract with a Toronto insurance company. www.claimscanada.ca

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When an issue arose as to the proper law of the contract, the Court concluded, despite the domicile of the insured being in Cuba, the proper law of the contract was Ontario because the circumstances surrounding the making of the contract all pointed to Ontario law.

Limitations on Subrogation Rights Several provinces have enacted legislation to restrict subrogation rights regarding certain types of payments, including short and long term income replacement benefits. Regardless of any subrogation provision, courts consistently confirm a contract of insurance may be limited by the laws under which it is to be interpreted.

The Insurance Act in New Brunswick contains a restriction on subrogation in section 265.4, which was considered by the New Brunswick Court of Appeal in Graham v. Hill, 2003 NBCA 24 (“Graham”). In Graham, the respondent was involved in a motor vehicle collision and, as a result of her injuries, received LTD benefits under a group insurance plan issued

by Sun Life, through her employer (the Federal Government). The Sun Life insurance policy contained a right of subrogation and, on Sun Life’s instructions, the respondent included Sun Life’s subrogated claim in her damages at trial.

On appeal, the Court was asked to determine whether section 265.4(1) (a) allowed the appellant to reduce the amount of the LTD payments received by the respondent from the damages award, and if section 265.4(3) barred the right of subrogation on the part of Sun Life. The Court of Appeal concluded that LTD disability benefits under the Sun Life policy were “payments for loss of income.” The Court further confirmed that section 265.4(3) operates to limit Sun Life’s ability to subrogate in respect of those payments.

Similarly, the Ontario Insurance Act contains a provision restricting subrogation rights. This was considered by the Ontario Court of Appeal decision in Kingsway General Insurance Co. v. Canada Life Assurance www.claimscanada.ca

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Co., 2001 CarswellOnt 2790 (C.A.).

In Kingsway, a motor vehicle collision occurred in Florida. The injured party was insured by Canada Life Assurance Company, which then wanted to assert a subrogation claim against Kingsway, the insurer for the driver responsible for the accident. The Canada Life policy was issued in Ontario and contained two relevant clauses. First, the policy contained a contractual right of subrogation. Second, the policy contained a clause indicating that any terms in conflict with a statute of the province where the policy was issued would be amended to conform to the statute.

In third party automobile accident cases, it is important to remember that an LTD insurer’s subrogation right (if any) will be governed by the law of the contract and not the lex loci delicti.

In this case, opinion from the Florida lawyer indicated Florida would apply the law of Ontario with respect to any contractual claims under the policy of insurance. As such, a question arose as to whether the Ontario law precluded a right of subrogation even though the contract itself allowed for the right. At trial, the Court determined the right of subrogation is a matter of contractual interpretation.

Second, the Court found that there is “no basis” for a right of subrogation by reason of section 267.8(17) of the Insurance Act.

On appeal, two issues were raised.

First, Canada Life agreed the law of the place where the accident occurred was applicable (i.e. Florida). Second, Canada Life maintained the trial judge should not have allowed Kingsway to benefit from the limits on contractual interpretation because Kingsway was not a party to the contract.

The Court of Appeal found the issue was one of contractual interpretation and such interpretation was to be made in accordance with the law of the contract (i.e. Ontario). On the second matter, the Court of Appeal found that although Kingsway was not a party to the contract of insurance, it was able to benefit from the limits on subrogation.

Conclusion Kingsway confirms that if the law governing a contract is a jurisdiction different than the place where the tort occurred, the law of the contract will apply. That is, the law governing the tort claim is separate from the law governing the interpretation of the contract under which insurance is being paid. This is also true if an insurer is asserting a common law subrogation right because equitable subrogation derives from the contract of insurance (as a contract of indemnity) and therefore, “the determination of whether subrogation rights arise still depends on the interpretation of the contract itself” (Kerr v. Kerr, 2009 NSSC 27).

In third party automobile accident cases, it is important to remember that an LTD insurer’s subrogation right (if any) will be governed by the law of the contract and not the lex loci delicti.

If the insurer’s subrogation rights are limited by the law governing the contract, any benefits paid by the insurer to the plaintiff may be deductible from the plaintiff’s claim for damages.  Tiffany Cheverie is a lawyer at Burchells LLP in Halifax, Nova Scotia, acting for insurers in personal injury, property, LTD and other insurance coverage claims. She is a member of Canadian Defence Lawyers (CDL) and Nova Scotia Insurance Women’s Association (NSIWA).

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Starting Points

Pre-accident health status and earnings form the foundation of damages quantification in personal injury claims.

By Mathew Rose and Kateryna Shpir

Building the foundation of fair damages quantification commences with a consideration of pre-accident factors that establish the starting points. In this article, we review two areas of pre-accident status that are considered in damages quantification – pre-accident health status and preaccident earnings. How do these starting points affect the final quantum of damages?

Our previous article (February/March 2014 Claims Canada) explored three end points – life, worklife, and housekeeping expectancy – used in damages quantification in both accident benefit and bodily injury claims. However, there is another equally important area of contention in damages quantification; the evaluation of pre-accident file attributes to determine the starting points. The use of starting points in the evaluation of a claim is the corollary to use of end points, and both are equally as impactful on the final quantum.

Starting points are the claimant’s relevant pre-accident conditions (such as income, health, socioeconomic status, home environment) that form the baseline from which accident-related damages can be clearly evaluated. The claimant’s base earnings (also known as base wage or benchmark salary) provide a particularly important starting point from which a claimant’s loss of income is projected. Because loss of income is often one of the larger heads of damage, this starting point can have significant implications on the overall quantum of damages. Establishing realistic base 28 Claims Canada

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earnings sets a precedent for a reliable, fair value of loss of income – one that is neither over nor underestimated.

There are many sources of information when determining base earnings; the value of this starting point can vary significantly from expert to expert depending on which sources are relied upon. The most reliable source to turn to when predicting how much an individual would have earned is the claimant’s past income history. Referencing tax returns and employment history paints a thorough earnings profile specific to the claimant.

Provided that the profile is consistent year-to-year—with the individual’s annual income growing relatively smoothly over the considered period—the base earnings are then extrapolated into the future for the determination of future loss of income.

Individual-specific work information is preferred over general statistics as it gives a more accurate prediction of the plaintiff ’s earning patterns for the future. However, in certain cases (such as young adults, recent immigrant populations) past income history is unavailable, inconsistent, or insufficient (e.g. 1-5 years). In such cases, general population statistics must be relied upon.

Even in situations where income history does not suffer from the aforementioned problems, statistical averages should be used as a verification of the claimant’s own experiences. Comparing the claimant’s specifics to the general population allows for a more contextual understanding of the individual’s earning patterns.

Statistics can be gathered from telephone surveys of employers, educational institutions specializing in training for a specific labour market opening, union agreements (if applicable) and Statistics Canada’s income surveys. The Statistics

August/September 2015

Canada Census or National Household Survey (NHS), which consists of a sufficiently large, random sample of observations, provide the most dependable figures.

The base earnings are contingent on the age, experience, gender and education of the claimant in addition to the industry in which the individual was working prior to the accident. The average earnings of individuals who share the claimant’s attributes are extracted from the surveys and applied as a measure of base earnings.

It is important to consider a special scenario that commonly arises in personal injury cases: a young adult whose starting points can be more difficult to determine, and whose substantially long loss of income timeline contributes to a generous value of claims. A high percentage of seriously injured individuals are between ages 18 and 30 and fall under this category of young adult. For example, in 2002 of the 227,768 people involved in MVA, 26% of those were aged 15 to 24, according to the Traffic Injury Research Foundation (TIRF).

The young adult category is well known to have highly inconsistent work histories.

This group is unusual in that they do not have clear employment plans and are prone to changing career paths. When examining the average number of jobs held in the previous five years by gender and age, the 20-24 age group changes jobs more than any other age group, according to Statistics Canada.

A young adult’s employment can often be directly related to the economic conditions. If the economy as a whole is doing well, then young adult employment is high. This group is unaffected by involuntary unemployment because they are considered adaptable to the market. Thus, one of the most important determinants of www.claimscanada.ca

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young adult employment is the strength of the economy as a whole.

The second starting point integral to quantifying damages is the pre-accident health of the claimant, particularly as it relates to their pre-accident functioning. In our experience, we often find that pre-accident conditions are not carefully considered in terms of their functional implications; despite the large impact this can have on the total quantum of damages.

This area of consideration is arguably the cornerstone to the entire damages quantification process.

Determining pre-accident health status involves considering medical and lifestyle conditions, often obtained in the form of pre-accident medical and claims records. Independent medical reports regularly acknowledge these pre-accident conditions but there is little or no connection between these diagnoses, the past/ present functioning of the individual, and how such conditions would have affected them in the long-term if the accident had not occurred (this often leads into the “crumbling skull theory”– see CanLII Lee vs TDSB. 2012).

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Proper analysis requires an understanding of both the pre-accident medical conditions and the functional trajectory of these conditions. Any medical condition could conceivably affect a claimant’s pre-accident functioning and pre-accident functional trajectory. For example, a claimant who has pre-existing depression will likely continue to experience depression after the accident. Careful consideration must first be given to determine how the depression was affecting the claimant’s pre-accident functioning; in other words, one must establish this medical starting point. In our experience, this area is often not considered in adequate detail.

Similar to base earnings, medical starting points (expressed in terms of functional abilities) provide a baseline for the theorized trajectory of the claimant’s postaccident wage opportunity and growth.

Medical starting points also allow one to determine how pre-accident medical conditions would have affected function if the accident had not occurred. The necessary integration of different starting points highlights the importance of collaboration

between economic and medical professionals.

In conclusion, clearly establishing a claim’s starting points provides baselines for evaluating the quantum of damages.

Starting points such as base earnings and pre-accident functioning can have a significant impact on determining loss of income (one of the largest heads of damage, especially for younger claimants). Allocating adequate time to the evaluation of a claimant’s pre-accident status has a significant impact on the final quantum of damages, and is a necessary practice to ensure more accurate damages quantification.  Mathew Rose, OT (Reg). ON, CCLCP, is a Canadian Certified Life Care Planner, Occupational Therapist and Principal of Mathew Rose and Associates Inc. He is also an Adjunct Lecturer at University of Toronto’s, Faculty of Medicine. Kateryna Shpir is the Forensic Economist at MRA Medlegal Consulting and provides economic/statistical assessments of damages used in settlement negotiations and litigation.

August/September 2015

Claims Canada 29

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The Dilemma Drivers face split-second decisions at intersections – an accident might not be as simple as it first appears.

By Joseph Jakym

As children, most of us have played the game “red light, green light”.

The rules were obvious, when red light was called you stopped, and when green light was called you proceeded forward. However, sometimes during this game a child would announce “yellow light”, and the actions that would follow would often be split amongst the participants, with them either stopping, slowing, or proceeding forward.

Even as adults, while driving our vehicles, it can be unclear whether or not we are supposed to stop or proceed forward when we are unexpectedly faced with a yellow light. When the choice is not clear, this concept is known as being in the “dilemma zone.”

To better explain what the dilemma zone is, it is easiest to start with what it isn’t. If you are far away from an intersection (i.e. 10 seconds away) when its traffic signals change from green to yellow, the decision to stop your vehicle is obvious

and there is no dilemma. Further, if your vehicle is positioned nearly within the intersection when the light changes from green to yellow, the decision to proceed into the intersection is also obvious since it is physically impossible to stop your vehicle before encroaching into the intersection.

However, there is a region between these two areas in which the decision to stop or go is less clear; this region is the dilemma zone. For instance, if you find yourself in the dilemma zone, you may find the vehicle next to you proceed into the intersection, while you chose to stop your vehicle in response to the amber traffic signal.

The dilemma zone is a concept that has been mathematically modeled in research. This allows accident reconstruction experts to determine the probability of whether drivers in a particular situation would be expected to stop or proceed through an intersection. For example, an accident reconstruction expert can use this research to come to the opinion that based upon the circumstances that were

facing a particular driver, we would expect a certain percentage of drivers in their position to continue through the intersection.

Some of the factors that might be taken into consideration when determining the probability of entering the intersection include the following: • The distance from the intersection when the light changes from green to yellow • The speed of the vehicle • The type of vehicle Drivers of light passenger cars are more likely to stop compared to drivers of heavy vehicles (i.e. transport trucks) • Whether there are adjacent vehicles that are also travelling through the intersection If the vehicle beside you enters the intersection on a late amber, you are more likely to go through than if your vehicle was alone.

The concept of the dilemma zone can be very useful in circumstances where the colour/state of a traffic signal is a

In the end, there may be more to the story when a vehicle enters an intersection on a fresh red light or a stale amber.

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matter of importance. Imagine the scenario where your client/insured drives a heavy vehicle, such as a tractor-trailer.

The tractor-trailer enters an intersection, while a passenger car, initially travelling the opposite direction as the tractortrailer, turns left into the tractor-trailer’s path. The two vehicles collide in the intersection. Several witnesses to the accident indicated that the tractor-trailer entered the intersection right as the traffic signal turned red. The initial outlook regarding liability on this matter may be

bleak. However, the concept of the dilemma zone can be used to determine how reasonable it is that your driver entered on a fresh red light.

It might be determined in this scenario from the mathematical models that 60% of drivers in the tractor-trailer’s position would have elected to continue through the intersection, based on the tractor-trailer’s likely position when the light changed from green to amber. If that was the case, most drivers in his/her position would have entered the inter-

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August/September 2015

section against a red traffic signal. This type of information can be useful when determining the percentage of liability in a civil case.

This approach can also be useful if your client/insured is driving the leftturning vehicle. For example, imagine the scenario where your client/insured is waiting within an intersection to turn left. The traffic signal changes to red, and then proceeds to make their left turn.

Video surveillance showed that about 3-seconds into their left turn, they are struck by a van which entered against a red traffic light.

Based on a reconstruction of the speeds of the vehicles, the approximate position of the van when the traffic signal changed from green to yellow can be determined. Based on the van’s initial positioning, it might be determined through the dilemma zone models that 100 % of drivers in the van driver’s position would be expected to stop in response to the yellow signal before entering the intersection. This conclusion may initially seem to be obvious; however, these mathematical models provide a tool which can be used in litigation to support these common sense answers.

In the end, there may be more to the story when a vehicle enters an intersection on a fresh red light or a stale amber.

Accident reconstruction experts are often asked to determine whether a driver’s actions or inaction was reasonable. This is determined by comparing how well a particular driver performed against research of drivers facing similar situations. In some cases, it might be reasonable to expect a driver to have entered an intersection on a stale amber or a fresh red light, whereas in other cases it may not be reasonable.

Therefore, the next time you are reviewing a case where there may be an issue of a vehicle entering an intersection against a red traffic signal, there may be more to the story than you had originally thought. Consequently, the liability of a particular case may not be as black and white as it first appears… or as green and red.  Joseph Jakym, P.Eng., is partner at Roar Engineering, responsible for managing the accident reconstruction department. He has over 8 years of experience in the forensic engineering/accident reconstruction field.

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Face Fact or Face Fiction?

How to develop social media evidence in litigation to best effect.

By Max Hufton

When asked on Monday morning how your weekend was, the expected answer is typically a brief reply that generally things went well, some fun was had or a minor calamity averted. We laugh, smile, swap pleasantries and then off we go to work.

Sometimes, however, people respond more fully, perhaps more honestly, and tell you in detail what really happened. We listen, often in an increasingly awkward “Beam me up Scotty” state, to these tales of woe, supply caring words of encouragement and then move on. Some people we just don’t ask. Some people we stop asking.

Do we apply the same stock response standards to our social media profiles? Do our postings reflect our true state or only our bravest faces belying hidden tales of woe? The fact is, it could be either.

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For that reason, when it comes to litigation, the story behind the picture also needs to be told. This story can prove that pictures of joy and excitement in adventurous pursuits posted by litigants on their social media profiles either truly represent their post-accident condition or show only rare best moments in a life otherwise touched by functional impairment and well-masked misery.

A recent case from British Columbia illustrates precisely the considerations to be applied by the trier of fact in weighing the social media image versus private persona. In Tambosso v. Holmes, 2015 BCSC 359, the defendants introduced into evidence 194 pages from the plaintiff’s Facebook page posted between May 2007 and July 2011.

The plaintiff was in car accidents in 2008 and 2010. She alleged that the accidents had significantly impinged on her social and recreational activities and rendered her unemployable.

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Her evidence at trial was that the accident had caused her to change from a “vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman” to that of a “housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose ‘life sucks’.”

The plaintiff’s Facebook page told a different story. The trial judge noted, “There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident.”

The plaintiff argued that persons posting the events of their life tend to post positive events and activities and portray themselves as social, while avoiding posting negative thoughts events and news. While noting an absence of expert opinion to support www.claimscanada.ca

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that argument, yet broadly accepting its logic, the trial judge relied extensively on the independent evidence of collateral witnesses and a careful analysis of postings in relation to real life events. He reached a conclusion that the plaintiff’s postings, not her evidence at trial, represented the more accurate version of her circumstances.

Key to that determination was the timing of the postings in relation to the prevailing events of the plaintiff’s life. The court contrasted, for instance, the relative lack of postings during a period in which the plaintiff was pregnant and in an abusive relationship, with those periods immediately after the accident and subsequent to her ending the abusive relationship.

During this latter period, her postings were prolific and consistent with an active individual engaged in vigorous outdoor pursuits and regular socialization with friends.

The Court concluded that the social media life portrayed by the plaintiff was “completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the Internet.” At the end of the six and a half week trial, the plaintiff asked for $2.6 million.

The Court awarded her damages of $36,042.30.

Not every case involving Facebook evidence achieves this extraordinary result. A case is a story and a trial the telling of the tale. Key to success is foremost the development of a coherent and credible narrative. Illustrations enhance the story; they are not the story itself. The potentially devastating use of social media in litigated claims has not gone unnoticed and it is rare now for plaintiff’s counsel not to caution their clients as to the potential risks of posting material to sites with content open to the public.

What then can claims examiners do to facilitate the best use of social media data in litigation and ensure the data is secured while the window of opportunity remains widest open?

Conduct internet searches on receipt of notice of the claim: note maiden names if applicable (many

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women who change their names on marriage have social media profiles in their maiden names to facilitate “friending” older associates). Also note the names of other likely social media contacts, spouses, other family members, passengers in the same car as the claimant, team members, as possible sources of social media data and search them too. An often overlooked point is that your insured may have access to the claimant’s social media postings, and they of course have a duty to cooperate with their insurer.

Data obtained from social media may also have the peripheral benefit of assisting in early identification of potential witnesses and securing contact information for them without need to wait for examination for discovery.

If a search within a demographic in which one would anticipate finding a social media presence reveals nothing, consider searching common letter switches (“5” for “S”, @ for “A”).

You may have received an email from the claimant, try searching using the name before the @ sign in the email address (people tend to be predictable in their choice of usernames and passwords and as anyone who’s ever forgotten a password or username knows, with good reason).

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Perform periodic regular repeat searches pre-litigation. Typically in the acute phase of injury one would expect the most dramatic change in a claimant’s presentation; recording early post-accident postings can be very helpful in highlighting any disconnect in this common sense and generally accepted story line.

Secure copies of electronic data.

Privacy settings can and do change, frequently so once litigation is commenced. Having evidence of an active profile immediately prior to retainer of counsel may assist in disclosure applications where privacy has “suddenly” become important to claimants. On a practical note, in addition to printing or screen capturing data, copy the URL and paste it to a document in the file, this provides a direct link to the webpage even where the claimant may subsequently have changed their username and avoids loss of data which you knew at one point to exist.

Data obtained from social media may also have the peripheral benefit of assisting in early identification of potential witnesses and securing contact information for them without need to wait for examination for discovery.

From an ethical standpoint, it is clearly impermissible to engage in subterfuge to try and gain access to data stored on social media sites.

Data gathering is restricted to information that can be gained only from public profiles or indirectly from reposts on “friends” public social media sites.

In summary, be prepared that seemingly very damaging visual information obtained from social media alone may not deliver the result you seek. It is the contextualization of the image and the weaving into the story that increases the chances of success. It is a lucky spider that catches flies with a single stranded web.

Max Hufton is an associate with the British Columbia litigation boutique firm Race & Co. LLP and has served on the board of directors of Canadian Defence Lawyers since 2012.  www.claimscanada.ca

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1-877-695-6575 ext.300

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15-08-26 5:05 PM

Common Fire Culprits The threat of residential fire can emerge from several potential sources.

By Mena Costandi

Dishwashers. Refrigerators. Computers. Toasters. Exhaust Fans. Our homes are filled with appliances and electronics, but most homeowners don’t think of them as potential fire hazards.

The first step in protection from the dangers of a house fire is to ensure working smoke alarms exist throughout the house. Here is a list of five household items that can potentially overheat or catch fire, with some helpful tips for preventing electrical and electronic failures.

1: CORDS AND POWER BARS Power and extension cords that are pinched, pierced, bent or otherwise damaged do not look very threatening, but the truth is, they are serious fire and shock hazards.

Keep power bars and cords away from moist or wet environments.

Salt-water aquarium electrical should be installed by a professional to provide protection from moisture and contaminants. Normal power bars and extension cords will not do. Also keep weather-proofing covers closed on outdoor outlets.

Look behind the sofa.

Pressing furniture against an outlet where a cord is plugged in can cause damage to the plug. Make sure there is enough space behind the couch, bookcase, bed, or desk to ensure you are not pushing against the plug.

Check your kitchen counters.

Pinching a cord under or behind an appliance or wrapping it around a toaster or kettle can damage or melt the insulation around the wire.

Keep cords away from carpets.

Running a cord under a carpet may keep it out of sight, but it also keeps it from 38 Claims Canada

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properly cooling and makes it easy to damage by foot traffic or furniture.

Keep cords free and clear.

Leaving combustible items near cords or power bars is a bad idea – they will just end up feeding the fire in the event of a failure. Do not place boxes or furniture on cords either.

Keep animals away.

Do not let your pets chew on cords.

(And if you have mice in your house, they can do some serious damage too.)

Inspect regularly.

Check for nicks, damage or signs of overheating at plug connections. If your cords are hidden away or in a tangled mess, you will probably be less likely to check them.

Replace damaged cords.

Never patch power and extension cords.

Look for corroded and bent plug blades. It is far safer to replace the cord – or even the entire appliance – than to tape a damaged cord.

Use as intended.

Extension cords are classified as temporary wiring. Do not drape wiring over nails or fix extension cords to walls to create an extra outlet. Get a permanent outlet installed by an electrician instead.

2: APPLIANCES Dishwashers, refrigerators, toasters and dryers are all common household appliances that can cause fires due to manufacturers’ defects or misuse.

Dishwashers: the heating element can be defective and water infiltration can cause circuit board failures.

Refrigerators: compressor components and wiring can fail.

Toasters and other small appliances: circuit boards and electrical contacts can fail. Food can catch fire during use or afterwards if left in toaster.

August/September 2015

Dryers: thermostats can fail, allowing the dryer to overheat. If the main heating element fails, it can send molten metal into the drum, igniting your clothes.

Register your appliances.

If there is a manufacturer’s defect, you will automatically be made aware of any recalls. Sign up on Health Canada’s recall page to get email alerts for your products.

Unplug it.

Not only should you be disconnecting your kettle, coffee maker and toaster when on vacation, but you should unplug them whenever they are not in use! Even when your appliance is not on, the cord is still energized when it is plugged in. It is a practice that literally can save lives… not to mention a bit of energy too.

Stay close when appliances are in use.

People often run their appliances overnight while they are sleeping or when they are out for the day. Although these times may be more convenient for your lifestyle, they pose a possible safety threat.

Appliance failures are not an infrequent occurrence – they can happen at any time.

Get your dryer cleaned by the pros.

Call in a company that will clean your dryer interior and exhaust ductwork.

You would be surprised how much flammable material (lint) can build up.

3: ELECTRONICS Lithium ion batteries that power our gadgets cram a lot of power in a very small package. When they fail (usually due to damage, improper charging or a defect) their high-energy density can cause an explosion with a fire that can spread rapidly.

Faulty circuit board components can fail and catch fire.

Charge electronics according to manufacturer’s instructions Keep your laptops, tablets, cell phones and wearable electronics from becoming www.claimscanada.ca

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fire hazards by charging them with the right charger in the right setting. Aftermarket chargers should be selected with care. Do not just look at the price tag.

Unplug it.

Remember, when the cord is plugged into an outlet, it is energized even if the device is off. Better to disconnect and be safe, especially when sleeping or when leaving the room or house.

4: COOKING STOVES AND OVENS Fires on cooking appliances are caused more often by user error than by manufacturer defects. They are so common they deserve their own section.

Stay in the kitchen when you are cooking.

Unattended cooking is one of the most common causes of household fires. It is a simple rule but you would not believe the percentage of fires we are involved in investigating that would have never happened if someone did not leave the room. We hear it all the time, “I only left the room for a minute!” Consider using an electric deep fryer instead of a pot on the stove to make fries.

www.claimscanada.ca

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Do not overuse the self-cleaning feature.

It uses temperatures greater than 900°F to burn off food particles – much higher than anything used for cooking. Some claim that it can wear away the oven’s electronics and cause the control panel or other features to stop working properly.

My advice is to carefully follow the instructions in the user manual about recommended frequency of this feature and, if unclear, call the manufacturer.

5: EXHAUST FANS Bathroom and laundry room exhaust fans are another common source of electrical fires. The dust on a fan that has not been cleaned is an excellent fuel source for a fire, should one break out due to a fan malfunction. Sometimes it is not clear that the fan has caused a fire inside the ceiling space. An ignited plastic fan grille can drip down and set fire to bath mats, clothes and other flammable items.

Check for heat.

Feel the plastic grille while the fan is operating. If there is a lot of heat radiating from it, you may have uncovered a problem.

Open it and dust it.

This is probably the easiest way to see if there is a problem. After removing the dust, examine the fan for signs of overheating such as discolouration or melting of plastic components around the motor. If you do detect any signs of overheating, stop using the fan immediately and call a professional to replace it.

We tend to appreciate the conveniences of these electronics and appliances but underestimate the dangers of their improper use. Make a conscious effort to frequently check on the five common culprits to ensure everything is operating as it should and that you are using them as recommended. The fact is: preventing electrical and electronic fires in homes is easy and pretty straightforward!  Mena Costandi, P.Eng., CFEI, Is a Forensic Engineer with Origin and Cause forensic engineering and fire investigation firm. He specializes in structural fires and electrical failures and has performed more than 600 fire and product liability investigations.

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EF

• education forum

A SERIES OF ARTICLES PROVIDED BY THE INSURANCE INSTITUTE OF CANADA

Anchoring an Adjuster’s Education

L

oss adjusters will be in demand in the future, and a new report by the Conference Board of Canada shows the important role of a Chartered Insurance Professional (CIP) designation in educating the new recruits.

“The CIP designation is a key part of preparing professionals for the p&c insurance industry in Canada and around the world,” the Conference Board found.

“The CIP program bridges the general education provided in university or college, and the specific training offered by individual firms.”

Adjusters, who come to the industry from a wide variety of backgrounds, anecdotally support the Conference Board’s finding.

“Choosing a career as an independent adjuster, the CIP courses gave me that academic background in insurance that I didn’t receive through my post-secondary education,” said Andy Williams of AMG Claims Inc. in Nova Scotia. “I think a lot of the adjuster’s job is on-the-job training, where you are out meeting people and understanding how situations happen. How that all relates back to insurance policies and whole reason for insurance, that’s where the CIP courses help and are important.”

What the Conference Board found The Insurance Institute commissioned the Conference Board of Canada to review parts of the CIP program. The Conference Board is an independent, not-for-profit organization specializing in business, education, economic and human resources research. As part of its study, the Conference Board surveyed 91 insurance organizations in the p&c industry and 848 insurance professionals.

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Overall, 76% of employers saw a quantifiable return on their investment in the CIP program, the Conference Board found.

Benefits took various forms: higher quality service from CIPs (reported by 77% of employers), more capable employees, stronger relationships between employees and their clients, lower employee turnover and higher employee productivity.

Almost all (97%) of employers offered some form of support for CIP students, while 71% of employers reported that job candidates with a CIP designation are of more interest when recruiting.

“I know that when I first became an adjuster, the employer who was interviewing me specifically noted how many CIP credits I had at that time,” said Paul W. Féron, vice president of Western Ontario at ClaimsPro. Féron started his career in the mailroom of an insurance company when he was 18 years old. He said the company “definitely” encouraged him to pursue his CIP designation. “I knew that I was not done my education at 18 years old,” he said. “I was in the fortunate position that I had employment and the ability to go to school part-time, partially subsidized by my employer. That was a great scenario.”

Given employers’ preferences for job seekers with a CIP designation, “it is not surprising that CIP holders are able to garner a wage premium,” the Conference Board said. “In fact, on average, those with a CIP designation can expect to earn $8,000 more a year than their colleagues with a similar level of experience but no CIP designation.”

A broad education for adjusters Three-quarters of employers look to the CIP program to provide foundational

August/September 2015

knowledge about the p&c industry, the Conference Board found.

Independent adjusters are required to be licensed, and selected CIP courses are included in the licensing requirements in most Canadian jurisdictions. The Insurance Institute’s CIP program offers a standardized learning experience that begins by concentrating on essential p&c knowledge.

Once educated in the fundamentals of p&c principles and techniques, CIP students then choose courses related to specialized career paths within the industry – including claims staff and adjusters.

“It’s a holistic perspective instead of just a claims perspective,” Féron said of his CIP education.

Adjusters say the CIP’s broad scope helped them to become better adjusters. For example, knowing the perspective of an underwriter can sometimes help to discover the nature of a loss during a claim investigation, said Williams.

“We can maybe pinpoint more precisely a cause of loss, or contributing factors, by looking at what an underwriter would be looking at,” he said. “When you take a property risk, for example, you are looking at whether the building has a sprinkler or what type of construction it is. When we’re out doing an investigation, those are things that we are trying to confirm, trying to make sure that what was on the policy is what is actually there.

Those questions help us with our investigation.”

Knowing the fundamentals helps adjusters communicate with all parties during the claims resolution process – policyholders, brokers and underwriters – to make sure important details are not overlooked, said Laurie Walker, a senior vice www.claimscanada.ca

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president at inTrust, Cunningham Lindsey’s Third Party Administration (TPA) operation.

“At the end of the day, a claims adjuster has to be able to go into a person’s home or the lawyer’s office and be able to communicate in plain English the insurance contract and what it means – the responsibilities and obligations – and the claims process,” Walker said.

“People who have the CIP are far greater advantaged than those who don’t.

Those who don’t have a CIP generally seem to have a checklist provided by their employer saying, ‘Go out and do the following.’ Whereas a CIP has the ability to say, ‘Hmm, wait a minute, there’s an area here that is unknown to someone – the underwriter or the insured might not be aware of this concept – and it’s my job to explain it to them.’ CIPs have that ability because they’ve got that knowledge and that base – a foundation that’s been so broadly built.”

This broad base of knowledge is particularly important in light of the urgency of recruiting new loss adjusters into the p&c industry in the future.

sory glance at the backgrounds of recognized industry leaders and adjusters interviewed for this story reveal previous backgrounds in commerce, marketing, the RCMP, hospitality and freelance journalism, to name a few.

This speaks to the importance of a standardized education in p&c insurance for loss adjusters.

“If someone has a CIP, I know exactly what they had to do, because it is exactly the same across the country,” said Walker.

“Everybody who writes a Property I exam

wrote the same exam across the country.

Everybody had to have the same knowledge in order to pass, and everybody had to have the same mark. So I do like a standardized approach. I think it guarantees stability and consistency for the insured consumer, the government and the employer.”  More information about the CIP designation and a summary of the findings of the Conference Board of Canada are available at www.insuranceinstitute.ca

Spotlight on claims adjusters The Insurance Institute’s most recent industry demographic study highlights the fact that claims adjusters will be a hot commodity in the near future. The study drew on the input of many human resource professionals working within the p&c insurance industry.

“From the employer’s perspective, claims staff remains the most difficult and urgent to recruit,” the demographic study said. “One in three of the employees who retired between 2007 and 2012 worked in claims.”

More retirements are expected in the claims area. The median age of a male claims worker was 41 in 2012, and for a woman it was 40. Excluding managers, claims adjusters ranked among the three highest median ages by occupation (just below risk managers and information technology staff).

“The perception of the industry’s human resource management professionals is that, on average, retention of specific occupations is ‘somewhat urgent’ over the next two years,” the demographics report says. “Retaining accident benefit adjusters is rated as the most urgent priority followed closely by casualty adjusters.”

From where will these adjusters come? Anywhere, potentially. A curwww.claimscanada.ca

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August/September 2015

Claims Canada 41

15-08-26 9:04 PM

• on the scene OTS The Canadian Independent Adjusters’ Association (CIAA) is proud to announce that Patti M. Kernaghan, FCIP, CRM, was officially inducted President of the International Federation of Adjusting Associations (IFAA) at their Annual General Meeting held on July 6, 2015. A past CIAA National President (2009/10), Patti assumes the role on behalf of CIAA, which was one of the founding members of the Federation. “Patti’s wealth of knowledge of the industry is remarkable and her extensive involvement with numerous industry organizations will bring immeasurable value and perspective to the IFAA’s Board as the Federation continues to expand their membership and fulfill its mission to be the representative voice of loss adjusting around the world,” said CIAA Executive Director Patricia Battle. l

Cunningham Lindsey Canada Claims Services Ltd. (“Cunningham Lindsey Canada”) announced in late June that it deployed five adjusters to Australia to join a team working on thousands of claims that followed severe storms in early May. They will remain in Australia for 6-8 weeks. l ProFormance Group has introduced interactive Online Claims Training. In addition to its in-person training, the adjusting firm now offers new interactive and fully customizable online courses that to achieve a higher level of professionalism. In other company news, ProFormance announced the launch of Xcelsia Claims, a third party administrator (TPA) solution designed to increase efficiencies in claims handling, reduce loss ratios and enhance risk management strategies. l

Patti Kernaghan

Crawford & Company (Canada) Inc.’s Global Technical Services (GTS) division has provided its business partners with independent adjusting services on complex, high-value property losses, as well as claims in specialty industry sectors, for more than 20 years. With the recent amalgamation of the global Crawford Specialty markets group with the Global Technical Services unit, Paul Hancock, vice president of GTS Canada, has been appointed to head the merged division in Canada. l In other company news, Crawford & Company (Canada) Inc. recently announced the opening of a branch in Fort McMurray, Alberta. The opening of the Fort McMurray branch is the latest addition to Crawford’s network of more than 65 locations across Canada. l

CIAA New Members — July 2015

Barry Kozluk

Joseph Jakym

Roar Engineering Inc., an independently owned Canadian boutique forensic engineering firm, has added 2 senior forensic engineers to its team. Barry Kozluk, P.Eng. and Joseph Jakym, P.Eng. will form part of a multi disciplinary team of independent experts with proven court experience. l DKI Canada announced the addition of Garry Construction & Restoration DKI to the organization. Garry Construction and Restoration has provided property restoration services in East Burlington, Oakville, Milton and surrounding areas for almost 40 years. l WINMAR Franchise Corp recently announced the new ownership of WINMAR Victoria, B.C. managed by Jason Pennock, and the opening of WINMAR Prince Albert, Saskatchewan under the ownership of Dave Matthews. In other company news, WINMAR Franchise Corp. announced its national partnership with INFLOTROLIX, an industry leading flood prevention solutions firm. l 42 Claims Canada

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August/September 2015

CORPORATE MEMBERSHIP Charles – Edward Claim Services Ltd. Cocagne, NB ClaimsPro Toronto, ON EECM Ltd. Middle Sackville, NS Maximum Insurance Adjusters Ltd. Mississauga, ON INDIVIDUAL MEMBERSHIP Charles – Edward Claim Service Ltd. Charles-Edouard Girouard Cocagne, NB Level 3 Crawford & Company (Canada) Inc. Ryan Petrie Ottawa, ON Level 1 Izabela Gesikowska Mississauga, ON Level 1 Level 1 Duncan Cameron, BA (Hons) Mississauga, ON David Nakhla Hamilton, ON Level 1 Candice White Stellarton, NS Level 3 Lisa Boutilier Dartmouth, NS Level 1 Chris Hawkins Calgary, AB Level 1 Coast Claims Insurance Services Tiffany Essig Nanaimo, BC Level 1 Robyn Nicholson Port Alberni, BC Level 1 EECM Ltd. Pieter Heydenrych, CIP Middle Sackville, NS Level 3 Kernaghan Adjusters Jolene Jani Fort McMurray, AB Level 1 Maximum Insurance Adjusters Ltd. Rob Jeffrey, CIP, BBM Mississauga, ON Level 3 Mississauga, ON Level 3 Ian Gurnell

www.claimscanada.ca

15-08-27 11:19 AM

APPOINTMENT

The Restoration Contractors Organization of Canada (RCOC) and the Restoration Industry Association (RIA) have formed a “Strategic Alliance” to deal with a number of current issues that have the potential to affect both the full-service restoration industry and its stakeholders. l First General of Greater Toronto/Halton-Peel/Durham Region announced the appointment of Neal Weir as President and Geoffrey Gonneau as Director of Project Manager Training and Development. In other company news, First General - Sudbury recently received the Fire Safety Award from the Fire Marshal’s Public Fire Safety Council at a ceremony on June 16, 2015 in Toronto. The annual Fire Safety Awards recognize outstanding contributions to fire protection and prevention in Ontario. l As part of the ongoing efforts to support charity and their community, ServiceMaster Restore of London participated in the Make-A-Wish® Rope for Hope event on June 19, 2015. This unique challenge calls on participants to raise money in exchange for a once-in-a-lifetime experience to rappel down the edge of a high profile building. All funds raised from this special event go to granting the wishes of children with life-threatening medical conditions. In other company news, Stephan Roy, National Director of ServiceMaster Restore is pleased to announce the addition of their newest location in Canada, ServiceMaster Restore of Grey-Bruce under the ownership of Mike & Kathy Cochrane, formerly operating as BlueWater ProTeam. l Xpera, Canada’s Risk Mitigation and Investigation Company, announced recently that it has acquired Sterling Pacific Investigations Inc. l EagleView Technology Corporation, a leading technology provider of aerial imagery, data analytics and GIS solutions, announced that its wholly owned subsidiary, Pictometry International Corp., delivered Canadian imagery via drones through their CONNECT™ platform. The research and testing were completed in collaboration with Avyon using their Microdrones MD4-1000 drone. l The Travelers Companies Inc. announced in August that Travelers Canada chief executive officer Brigid Murphy is retiring, chief operating officer Duane Sanders is replacing Murphy and Heather Masterson — most recently CEO of Totten Insurance Group Inc. — is replacing Sanders. l Late July storms in Alberta and Saskatchewan caused more than $230 million in insured damage, Insurance Bureau of Canada reported recently. IBC quoted the preliminary estimate from Property Claims Services (PCS), a unit of Jersey City, N.J.-based Verisk Analytics Inc. IBC said the $230 million estimate is of insured damages “caused by the heavy rains, wind and a hailstorm that swept across parts of Alberta and Saskatchewan on July 21 and 22.” During that storm, “a tornado was sighted north of Priddis,” southwest of Calgary. Hail the size of golf balls was reported in Calgary while “nickel-sized hail was reported near Water Valley and Cochrane,” IBC reported. Meanwhile, IBC also reported in late July that the insured damage caused by the heavy rains and strong winds that swept southern Ontario on June 22 is estimated at more than $30 million. l Aviva Canada Inc. recently announced that it is offering new cross-border insurance coverage designed to provide a simple solution for Canadian domiciled companies who also have United States plated vehicles. “With the U.S. accounting for over three-quarters of Canada’s trade, and the two countries sharing the world’s largest trading relationship, a simple, widely available solution was needed for Canadian business that have U.S. domiciled exposures,” said Joe Vachon, executive director, large commercial and national brokers, Aviva Canada. l www.claimscanada.ca

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

Audrey was called to the Ontario bar in 1995. She received an Honours Bachelor of Arts degree (Political Science and French) from Wilfrid Laurier University in 1989 and her Bachelor of Laws degree from Ottawa University in 1993.

Since her call to the Bar, she has handled a broad range of insurance defense work including property and casualty, professional negligence, commercial and automobile insurance.

Audrey is involved in a number of professional organizations, and has served as a member of the Ontario Bar Association Board of Directors, Chair of Professional Development, OBA Chair of Sections, OBA Chair of Insurance Law Section, OBA Chair of Civil Litigation Section, Vice-Chair, OBA Insurance Law Executive, Public Affairs Liaison on the Insurance Law Executive, member of OBA Council and Chair of Counsel Forum at the Financial Services Commission of Ontario.

Audrey is a past instructor for the Law Society of Upper Canada’s Bar Admission Course, and Skills and Professional Responsibility Licensing Program and also a past newsletter editor for both the Ontario Bar Association Insurance and Civil Litigation section newsletters.

Audrey’s contact information is: aramsay@blouindunn.com (416) 365-7888 ext. 119 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

August/September 2015

Claims Canada 43

15-08-26 9:07 PM

• on the scene OTS EFI Global welcomed Ken Giersch, CFEI (Senior Fire Investigator) to the Winnipeg, MB office. As a Senior Fire Investigator, Ken is responsible for determining the origin and cause of structural and vehicle fires and explosions in Western Canada. EFI Global, Inc. is a leading provider of forensic engineering, failure analysis, fire investigation, accident Ken Giersch reconstruction, environmental and laboratory testing services. l

The Government of Prince Edward Island has taken steps to simplify the claims process for vehicle repairs by having Islanders deal only with their own insurance companies following an accident. Enacted in the spring of 2014, insurance reform known as “Direct Compensation – Property Damage” (DCPD) will take effect Oct. 1, 2015 and apply to accidents occurring on or after that date. It is mandatory coverage. The new rules require that insurance companies compensate their own customers for damage to a vehicle and its contents caused by someone else, notes a statement in August from PEI’s Department of Justice and Public Safety. l

The Insurance Bureau of Canada (IBC), the RCMP and the Atlantic Provinces Trucking Association (APTA) announced in early August that they are joining forces to bring a national cargo theft reporting program to Atlantic Canada. The Cargo Theft Initiative, which IBC and the Canadian Trucking Alliance (CTA) launched in Ontario in 2014, brings together the insurance industry, the trucking community, law enforcement and other stakeholders to raise awareness of the dangers and costs associated with cargo theft and to assist in the recovery of stolen goods, the IBC said in a media release. l

As Alberta agriculture producers continue to deal with dry conditions, the Agriculture Financial Services Corporation (AFSC) estimates that this year’s claim payments for multi-peril crop insurance will range from approximately $700 million to $900 million. To date, AFSC has already paid out about $70 million on more than 3,000 insurance policies, “as claims are being processed and dollars are flowing to address priority areas,” Alberta Agriculture and Forestry said in a press release. Producers also have access to approximately $541 million currently deposited in AgriInvest accounts. l

Ji Yoon

Andrew Scott

Emergency restoration company On Side Restoration Services Ltd. announced the appointment of Ji Yoon, CFO (chief financial officer) and IT (information technology) lead.

In other company news, Andrew Scott was promoted from project manager to branch manager in On Side’s Kamloops, B.C. office. l The automotive usage-based insurance (UBI) market will account for 21.7 million policyholders worldwide in 2015, says a recent report from visiongain, a London, United Kingdom-based business intelligence provider. According to Automotive Usage-Based Insurance (UBI) Market Report 2015-2025: Insurance Telematics and the Connected Car, the policyholders projected for this year represent a “significant increase” over the 12.2 million policyholders accounted for in 2014. l

The no-fault deductibles in Ontario’s Insurance Act in tort claims for damages arising from car accidents have been amended and increased to account for inflation and will be increasing slightly ever year in the future, Canadian insurance litigation firm Dutton Brock LLP reported in August. Ontario Regulation 221/15 amending Ontario Regulation 461/96 (Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996) was proclaimed in force Aug. 1, Toronto-based Dutton Brock said. Section 5.1 of Ontario Regulation 461/96, entitled “Deductible Amounts,” has now been amended, as have some parts of Section 267.5 of the Insurance Act. l Nearly two-thirds (63%) of C-suite executives report that their companies experience “significant” cyber attacks daily or weekly, but only 25% of them say their organization always incorporate measures in the design of their company’s technology and operating models to make them more resilient, according to a new survey from Accenture. Business resilience in the face of cyber risk, released this week, surveyed 959 C-suite executives – predominantly CEOs, chief information officers, chief technology officers and chief operating officers – via phone and online in a number of industries, including insurance, banking and capital markets, Accenture, a global management consulting, technology services and outsourcing company said in a press release. l

More than one in five Canadian drivers surveyed admitted they have followed other vehicles too closely while more than one in eight admit to having cut someone off, Kanetix Ltd. reported in August. Toronto-based Kanetix, which operates an Internet insurance quote comparison service, released results of a survey it sponsored, which was conducted July 13-16 using Leger’s online panel. Leger surveyed 1,426 drivers, asking which of 12 different behaviours they were “guilty of doing or having done in the past while behind the wheel of a vehicle.” Respondents were also given the choice of answering “None of the above - I am a perfect driver,” and 19% claimed they were. l 44 Claims Canada

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August/September 2015

www.claimscanada.ca

15-08-26 9:07 PM

CIAA REGIONAL PRESIDENTS 2014 – 2015 Newfoundland & Labrador TBA

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 Greg Potten, BPE, CIP, CFEI AMG Claims Inc. 212 Queen Street, Unit 308 Fredericton, NB E3B 1A8 Phone: (506) 458-9000 Fax: (506) 458-9595 E-mail: greg.potten@amgclaims.ca

Quebec/AESIQ Denis Duchesne Cunningham Lindsey Canada Claims Services Ltd. 1250 rue Guy, bureau 1000 Montreal, QC H3H 2T4 Phone: (514) 938-5400 Fax: (514) 938-5445 E-mail: dduchesne@cl-na.com

Ontario Maria Joshua, FCIP Sedgwick CMS Canada Inc. 21 Four Seasons Place, Suite 100 Toronto, ON M9B 6J8 Phone: (416) 695-5100 Fax: (416) 695-5120 E-mail: maria.joshua@sedgwickcms.ca

Manitoba Craig Shanks, BA, CIP Network Adjusters Ltd. 64 Regent Cres.

Brandon, MB R7B 2W9 Phone: (204) 725-7436 Fax: (204) 725-7437 E-mail: craig.shanks@mymts.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 M. Doreen Lennon, CIP Townsend & Leedham Adjusters Ltd. 200, 4245 - 97 Street Edmonton, AB T6E 5Y7 Phone: (780) 463-7776 Fax: (780) 462-1280 E-mail: dlennon@tladjusters.com

PACIFIC TBA

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National Standing Committees 2014-2015 ADVISORY Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. P.O. Box 20102 Sherwood Charlottetown, PE C1A 9E3 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com James B. Eso, CIP, CIOP 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 Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@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 Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. 535 North River Road, Unit 3 Charlottetown, PE C1E 1J6 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca Monica Kuzyk, FCIP, CRM Curo Claims Services 125 Northfield Dr. W., P.O. Box 218 Waterloo, ON N2J 3Z9 Phone: (866) 952-2876 Fax: (519) 888-9704 E-mail: mkuzyk@curocanada.com Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com Patricia M. Battle Canadian Independent Adjusters’ Association/L’Association Canadienne des Experts Indépendants Centennial Centre, 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, CIP, CIOP 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 Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@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 Sasha Alexander University of Guelph Alexander Hall 50 Stone Road East Guelph, ON N1G 2W2 Phone: (519) 824-4120 Fax: (519) 824-0364 E-mail: sasha@uoguelph.ca

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

FINANCE John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca

John D. Seyler, CIP Integrated Insurance Resources 5080 Timberlea Blvd., Suite 214 Mississauga, ON L4W 4M2 Phone: (905) 238-4985 Fax: (905) 238-2735 E-mail: jseyler@integrated-ins.ca

Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com

Fred R. Plant, AIIC ClaimsPro 85 Englehart Street Dieppe, NB E1A 8K2 Phone: (506) 853-8500 Fax: (506) 853-8501 E-mail: fplant@planthope.com CONSTITUTION & RULES John Jones, BA Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: jjones@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 CONVENTION Krystine Wolochatiuk Cunningham Lindsey Canada Bob Grouchy, BA, FCIP, CRM Claims Services Ltd. Allianz Global 74 Cedar Pointe Drive, Suite 1001 1600 – 130 Adelaide Street West Barrie, ON L4N 5R7 Toronto, ON M5H 3P5 Phone: (705) 728-8398 Phone: (416) 915-4247 Fax: (705) 734-0559 Fax: (416) 849-4555 E-mail: bob.grouchy@agr.allianz.ca E-mail: kwolochatiuk@cl-na.com Tim Guernsey RSA Canada 18 York Street, Suite 800 Toronto, ON M5J 2T8 Phone: (416) 366-7511 Fax: (416) 367-9869 E-mail: tim.guernsey@rsagroup.ca

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

Paul Hicks, FCIP, CRM TD Insurance 2161 Yonge Street, 4th Floor Toronto, ON M4S 3A6 Phone: (416) 486-2507 Fax: (416) 545-6022 E-mail: Paul.Hicks@tdinsurance.com

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

Peter Hohman Insurance Institute of Canada 18 King Street East, 6th Floor Toronto, ON M5C 1C4 Phone: Fax: E-mail: phohman@insuranceinstitute.ca

Robert V. Pearson, CLA, FCIAA 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

Justin MacGregor Highgate Insurance Brokers Inc. 151 Rose Glen Rd. Port Hope, ON L1A 3V6 Phone: (905) 885-1551 E-mail: justinmacgregor@highgateinsurance.com 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 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 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 Richard Swierczynski, BA, CIP

EDITORIAL Mary Charman, CIP Crawford & Company (Canada) Inc. 1 – 120 Mulock Dr. Newmarket, ON L3Y 7C5 Phone: (905) 898-0008 Fax: (905) 898-1705 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 EDUCATION Gary Ellis, BBA, FCIP, RF, FCLA, FCIAA, FIFAA AMG Claims Inc. P.O. Box 20102 Sherwood Charlottetown, PE C1A 9E3 Phone: (902) 628-9091 Fax: (902) 628-9093 E-mail: gary.ellis@amgclaims.ca 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

August/September 2015

Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com 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 Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com NOMINATING Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com Albert Poon, CIP Cunningham Lindsey Canada Claims Services Ltd. 1102 – 50 Burnhamthorpe Rd. W. Mississauga, ON L5B 3C2 Phone: (905) 896-8181 Fax: (905) 896-3485 E-mail: apoon@cl-na.com James B. Eso, CIP, CIOP 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, CIP, CIOP 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 Marie C. Gallagher, FCIP, CRM Kernaghan Adjusters Limited 602 – 1 St. Paul Street St. Catharines, ON L2R 7L3 Phone: (289) 786-1074 Fax: (289) 723-1979 E-mail: mgallagher@kernaghan.com

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• on the scene OTS A solid turnout of 200+ industry representatives attended the 56th Annual Reception of the Quarter Century Club on May 13 at the Albany Club in Toronto.

The event was a roast for claims industry veteran Paul Hancock, National Director/Toronto Branch, Manager Global Technical Services at Crawford & Company (Canada) Inc. l

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• on the scene OTS Winmar Toronto/Brampton celebrated the opening of their new 30,000 sqft facility on June 18th, 2015. Over 150 industry professional attended the event. Guest were treated with fine food, cocktails and cigars. l

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15-06-24 3:47 PM

• on the scene OTS Newtron Group’s “Grand Opening Extravaganza” was hosted at their new 50,000 sq/ft equipment restoration facility and headquarters in Brampton, Ontario. More than 200 professionals from the property insurance and restoration communities attended. Guests were treated to the finest of foods catered by Pusateri’s and a premium spirits and cigar lounge. l

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• on the scene OTS Giffin Koerth held its 4th Annual Golf Tournament, “The Big Divot,” on July 24th at the scenic Greystone Golf Club in Milton, ON. Industry professionals were treated to a beautiful sunny day on the challenging Greystone layout that features spectacular views from many of the holes that are carved into the Niagara escarpment.

Several on course contests were enjoyed throughout the day including a swing speed challenge. 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 ARC Group Canada held its 2015 Annual Seminar and Cocktail Reception at the St. Andrews Club and Conference Centre in downtown Toronto on October 2.

This year’s seminar saw experts offer their views and insight as part of the panel, A New World Order – Are You Cyber Ready? Panelists included Patrick Bourk, B.A., LL.B. Senior VP, Management Risk Practice Leader, Integro Group; Bobbie Goldie, VP Professional Risk, ACE; Eileen Greene, VP and Partner, Hub International; and Aleksandra Zivanovic, BCL, LL.B., LL.M., Hughes Amys LLP. Keynote speaker was Ray Boisvert, President of I-Sec Integrated Stategies and Endnote Speaker was Paul Hanley, KPMG’s National Leader for Cyber Security. See coverage of speaker comments, including video’s and links to other coverage at: http://bit.ly/arcseminar15 l

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