New study highlights increased uncertainty in Canada’s legal environment: IBC

TORONTO, June 13, 2006 – Canada’s home, car and business insurers today released a study that shows the legal environment in Canada is becoming increasingly uncertain, and that organizations and individuals are more vulnerable to lawsuits than ever before. The study, The Impact of Recent Legal Developments on Liability Insurance, was conducted by researchers at the University of Western Ontario.

The study, conducted by Professors Craig Brown, Jason Neyers and Stephen Pitel, focused on cases and legislation since 1990. It suggests that uncertainty has increased due to several factors, including: expansion of the concept of bad faith and increased potential for punitive and aggravated damages; the development of class actions; and a greater likelihood that someone will be held accountable for another person’s actions.

Randy Bundus, Vice-President, General Counsel and Secretary, IBC said: “Insurers have been increasingly concerned that recent legal developments are making it more difficult for them to predict the cost of the insurance they are providing. So IBC sought an independent study to determine the causes of this unpredictability.”

One recent case that highlights this unpredictability is Herbison v. Lumbermens Mutual Casualty Co. (not included in Prof. Brown’s study), in which a hunting mishap resulted in a redefinition of the concept of a “motor vehicle accident.”

The hunter was driving his pick-up truck across a farmer’s field before sunrise when he spotted some movement in the distance. He stepped out of his truck, aimed his rifle and fired at what he thought was a deer. It wasn’t. Instead he hit a fellow hunter, wounding the man in the leg. The wounded man, Harold Herbison, sued.

Lumbermens Mutual Casualty, which insured the defendant’s truck, was also added to the suit. The trial judge dismissed the claim against the insurer because it was the defendant’s rifle, not his truck, that caused the injury.

However, the Ontario Court of Appeal overruled the trial judge. The appeal court found that the incident qualified as a motor vehicle accident because the hunter would not have been in a position to shoot the plaintiff if not for the use of the vehicle. Lumbermens was ordered to pay about $900,000.

Bundus said: “If that incident can fall within the definition of car accident under the policy – meaning the auto insurer must pay for the injuries – then what else could be a car accident? Clearly, we’ve gone well beyond the traditional understanding that a car accident is a collision involving a vehicle. When car owners pay for their auto insurance coverage, should they expect that close to a million dollars of their premiums could be used to pay for a hunting accident?”

The Supreme Court of Canada has granted leave to appeal in Herbison v. Lumbermens. IBC will be seeking intervener status.

Bundus said: “IBC wants to participate on behalf of insurers, and all consumers who pay insurance premiums. We want to show the Court that decisions like this one raise claims costs and generate uncertainty for insurers trying to price their products. When insurers can’t predict what sort of claims they might be paying, it’s difficult to price the risk.

“At the same time, some plaintiff lawyers will continue to aggressively try to stretch the wording of insurance policies to achieve more and higher pay-outs, and this gets reflected in the premiums everyone will have to pay.”

Governments have the power, through legislation, to control the costs of liability insurance. Possible changes that have been successfully implemented in other jurisdictions include: protection from lawsuits for good Samaritans; a greater recognition that some recreational activities have inherent risks; and limits on awards for non-economic damages.

Bundus said: “Access to the courts is important, but the trend toward new situations where insurers are made to pay ends up costing all of us. There has to be a balance. Canadians have to decide whether they want this trend to continue or whether there should be some reasonable limits on what can be recovered in a lawsuit.”

About Insurance Bureau of Canada

Insurance Bureau of Canada is the national trade association of the private property and casualty insurance industry. It represents more than 90% of the non-government home, car and business insurance in Canada. To view news releases and information, visit the media section of IBC’s website at www.ibc.ca.

For a copy of the study, The Impact of Recent Legal Developments on Liability Insurance, go to What’s New on the IBC web site: www.ibc.ca.