Court of Appeal Releases Decision in Moore v. Getahun

The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts.  The Court of Appeal released its appeal of the decision January 29, 2015.  You can access the decision by clicking here.

The Court disagreed with the trial judge. There held there is nothing improper about "this longstanding practice."  Sharpe J.A. noted that the trial judge's decision is contrary to existing cases which say communication with the expert can actually help ensure an opinion is admissible, coherent and comprehensive.  There are safeguards built into the system: counsel cannot persuade an expert to change an opinion and it still needs to be objective.

Draft reports and notes of meetings and other communications are litigation privileged and do not have to be produced, absent a reasonable suspicion the expert was improperly influenced.  The foundational information used in formulating the opinion must still be produced.

This common sense decision will be welcomed by many on both the plaintiff and the defence side.

Changes to the Rules Regarding Appeals

A number of changes to the Rules of Civil Procedure came into effect on January 1, 2015.

One of the changes is with respect to obtaining leave to appeal an interlocutory Order of a judge.  The former rule 62.02 provided that a notice of motion for leave to appeal must be served within seven dates of the Order.  The new rule is a substantial change: r. 62.02(2) provides that the motion for leave to appeal shall be heard in writing.

The change may reduce costs in that it eliminates the need for an argued motion.  The test for such appeals remains the same: a conflicting decision and desirable that leave be granted, or good reason to doubt the correctness of the decision and an appeal involving matters of such importance that leave to appeal should be granted.  

U.S. District Court holds Progressive automobile policy website violates 93A

Named plaintiffs in a putative class action suit purchased automobile insurance from Progressive Insurance Company.  Some purchased the policies by telephone and others through the Progressive website.  All were subsequently denied PIP benefits because their policies had an $8,000 PIP deductible.  They sued Progressive alleging that they purchased the policies with a deductible because of Progressive's unfair and deceptive acts and practices. 

From 2008 to 2010 Progressive's website gave Massachusetts customers the opportunity to answer a series of questions.  If they indicated that they or their household members did not have health insurance, it generated plans and quotes with no PIP deductible.  If they indicated that they and their household members all had health insurance, it generated plans and quotes that included an $8,000 PIP deductible.  The customers could then choose different options on the website and compare premiums.  The deductible changed the policy price by $3.00.  A customer who chose an $8,000 PIP deductible for himself or herself could purchase $8,000 PIP coverage for household members for no additional charge.

Progressive knew that PIP deductibles were not customary in Massachusetts.  Approximately 90 percent of Massachusetts insureds purchased PIP with no deductible whether or not they had health insurance.  In June, 2008 Progressive held a focus group that found that customers did not understand the PIP deductible. 

In 2009 Progressive began receiving formal complaints through the Massachusetts Department of Insurance from customers who had bought policies with a PIP deductible but thought they were buying policies that did not have a PIP deductible. 

In 2010, as a result of negotiations with the Department of Insurance, Progressive added a line to its website, "Your PIP coverage currently includes a deductible.  You may elect a deductible of up to $8,000 or no deductible."  It also changed the website so that the default position for customers with health insurance was a $250 PIP deductible instead of an $8,000 deductible. 

In Estrada v. Progressive Direct Ins. Co., __ F.Supp.3d __, 2014 WL 5323422 (D. Mass.), the United States District Court for the District of Massachusetts dismissed plaintiffs who had purchased Progressive policies by telephone, as allegations with respect to telephone sales practices were not included in the complaint. 

With respect to claims by plaintiffs who purchased Progressive policies online, the court first dismissed counts alleging only violation of Mass. Gen. Laws ch. 176D, as a private right of action for violation of that statute exists only through a 93A claim.  It also dismissed a count alleging violation of Mass. Gen. Laws ch. 175 §181, as that statute does not create a private cause of action for an insured under an automobile policy.

The court denied summary judgment to Progressive on the 93A count.  It held that the evidence taken as a whole was sufficient to establish that the website had the "capacity or tendency to deceive."  The fact that the plaintiffs testified that if they had been told that they could obtain PIP coverage for their household members with no increase in premiums they would have done so was sufficient to establish causation on the 93A claim. 

Progressive argued that the because after review the Department of Insurance and the Massachusetts Attorney General's office allowed the website to remain, its website was affirmatively permitted by the laws of the Commonwealth, creating an exemption from 93A liability.  The court disagreed, because there was no evidence that the DOI or AG's office explicitly approved the manner in which the website defaulted customers to an $8,000 PIP deductible for themselves and their household members.   

1st Circuit holds insurer did not discriminate by not basing sober house premiums on three-family house premiums

PSI operates two sober houses for individuals suffering from substance abuse.  Each house has three floors and capacity for 30 residents.  Prior to the buildings becoming sober houses they were three-family rental properties. 


PSI sought insurance from Nautilus Insurance. Nautilus based the premiums on the category of "Halfway Houses -- Other Than Not-For-Profit."  Just as with shelters, rooming houses, transitional housing for the formerly homeless, student housing, etc., premiums were calculated according to the number of beds at the property.


PSI  sued Nautilus, alleging that its calculation of premiums violated the Fair Housing Act.  It alleged that Nautilus should have provided PSI with insurance rates applicable to three-family houses.


The FHA makes it unlawful to discriminate in the sale or rental of a dwelling because of a handicap, including substance abuse. 


In PSI, LLC v. Nautilus Ins. Co., 2014 WL 740 (D.Mass. 2014), the court first held that PSI had standing to bring the FHA suit because it properly alleged it was harmed by Nautilus's allegedly discriminatory rates.


The court held that Nautilus was not liable for discrimination on the basis of disparate treatment of PSI.  Nautilus  had a nondiscriminatory reason for classifying the sober houses as halfway houses rather than three-family dwellings: they were not operating as three-family dwellings and therefore posed a different liability risk.  The sober houses would have more foot traffic and higher turnover of tenants.  The premium determination was not made because of disability of the residents but on the same formula that applied to other types of housing such as boarding houses and rooming houses.


The court held that Nautilus also could not be liable under a disparate impact theory.  PSI alleged that because premium calculations for three-family houses are not based on the number of occupants, Nautilus' occupancy-based premium calculation for sober houses was facially discriminatory and disadvantageous to the disabled.  The court held that there was no evidence that the challenged practice caused a discriminatory effect, and that Nautilus had provided a legitimate, nondiscriminatory reason for its rates. 


The court held that the request for lower premiums was not a reasonable accommodation and was  unnecessary to allow the residents to enjoy the housing in question where there was no evidence that cost-savings would be passed on to residents. 


Finally, the court held that PSI's allegation that Nautilus violated the Americans with Disabilities Act must fail for the same reasons as the FHA claims must fail. 

Negligent drivers liable to rescuers for injuries that are reasonably foreseeable

A recent summary judgment motion dealt with the extent of the duty of care owed to rescuers.

In Maguire v Padt, 2014 ONSC 6099 (S.C.J.), the defendant, Suzanne Padt, was driving in whiteout conditions when she lost control of her car and rolled into a ditch. Several passing motorists pulled over to rescue Padt from her car. After placing Padt safely in a police cruiser, the rescuers were preparing to return to their vehicles when another passing car lost control and drove into them. Two of the rescuers were killed and a third was seriously injured.  They commenced an action against Padt.

Padt brought a motion for summary judgment, arguing that the duty of care that she owed to her rescuers concluded at the end of the rescue and that the rescue had concluded when she was removed from imminent peril and was safe in the police car.

In its decision, the court first reviewed and affirmed the established legal principle that negligent parties who cause themselves or others to be placed in danger owe a duty of care to the responding rescuers.

The court stated that the rationale underlying this duty was that injury to rescuers was a reasonably foreseeable consequence of the negligent conduct that led to their involvement. The court stated that the negligent party should be liable for any injury that was a reasonably foreseeable consequence of the negligent conduct – not just for injuries that occurred while the person being rescued was in peril. The court put it this way: “It is foreseeability, not the end of the peril, that sets the limits of the liability.”

Given the whiteout conditions on the road, the court found that the second accident was a reasonably foreseeable consequence of Padt’s negligent conduct. The court dismissed Padt’s motion and, under the assumption that Padt was negligent in causing the first accident (which was accepted for the purpose of the motion), granted partial summary judgment in favour of the plaintiffs.

Xarelto lawsuits in Wisconsin

Wisconsin Xarelto lawsuits are currently being investigated by our firm. The primary problem with Xarelto aka Rivaroxaban is internal bleeding, which can cause death or hospitalization. Please go to our firm's Xarelto page to get more information.



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Municipality Has No Duty to Negligent Drivers

The Court of Appeal recently held that there is no duty on the part of a municipality to keep its roads safe for those who drive negligently.  It also rejected an argument that there is a different standard for rural and urban drivers.

In Fordham v. Dutton-Dunwich, 2014 ONCA 891 (C.A.), the 16-year-old plaintiff was seriously injured when he came to a rural intersection, ignored a stop sign and drove through the intersection at 80 km/hr.  He lost control on a curve and crashed into a concrete bridge abutting the road.  The trial judge found the municipality 50% responsible for failing to post a checkboard sign warning of the change in the road's alignment.  She held that it was local practice for rural drivers to go through stop signs and the municipality should have known that ordinary rural drivers do not always stop at stop signs.

The Court of Appeal allowed the appeal and dismissed the action.  Laskin J.A. held that a municipality's duty of repair is limited to ensuring its roads can be driven safely by ordinary drivers exercising reasonable care.  In addition, there cannot be one standard of reasonable driving for rural drivers and another for city drivers.  There is one standard of reasonable driving and that standard requires drivers to obey traffic signs.

Fordham helps define a municipality's standard of care: although ordinary reasonable drivers are not perfect and may make mistakes, they are not negligent.

Pro Hac Vice Admission, Co-Counsel, Local Counsel, and Referrals

Out-of-state lawyers interested in working on or referring a Wisconsin personal injury lawsuit, please see my recent post Wisconsin Pro Hac Vice Admission, Co-Counsel, Local Counsel, and Referrals.


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