Personal Injury and Insurance Defence

[MagnaCarter]

I came across this article from Charles Gluckstein about changes his firm is making to keep up with the times: https://www.lawtimesnews.com/practice-areas/medical-malpractice/gluckstein-lawyers-managing-partner-charles-gluckstein-on-legal-trends-to-expect-in-2022/364092

Not sure what everyone's experience is on the plaintiffs side, but I wonder how many plaintiff firms are also seeing these changes and will be able to pivot parts of their practice (beyond the senior partners just retiring in the next 5-10 years without considering succession plans).

I know this was discussed in lawstudents.ca, but I'm skeptical of whether the PI/ID industry will continue to be strong in the next 5-10+ years given a continued anticipation that MVA claims will decline in number and size. I'm not sure what type of claim (if any) will fill the void. Medical malpractice is very risky, expensive, well-defended, and, if only those significant claims warranting the time/expense are pursued, few in number. It will be interesting to see if there is a greater movement towards LTD claims, but I understand that a lot of employment law firms already service that market. In my experience, most slip and fall claims are now litigated through simplified procedure and have OHIP subrogated claims, which suggests the dollar amount the plaintiff/lawyers get may be lower than MVA claims. Similarly, assault claims have tended to yield lower general damage awards (unless there is a significant injury) then MVA, and recovery can be difficult if the assaulter is not covered under an insurance policy or there is no vicarious liability/institutional claim.

Anyone in the PI/ID industry have any thoughts?

[MOL]

I think there is a growing fear, at least with respect to tort auto, that what occurred in BC is going to roll out across the country so that a number of lawyers will need to find new practice niches. I know that fear was present when Manitoba went completely no fault and in Ontario in the early 90's when it's no fault regime was established and it hasn't occurred completely across the country. Yet.

It may just switch the area of fighting from between plaintiff and defendant tortfeasor though to plaintiff insured and defendant insurer over benefits pumped up when tort rights are removed. Though I expect you would likely see a curtailment of the right to sue for those as well particularly if a government run insurer is set up. 

I expect there will be a migration of lawyers, especially associates to other areas of law as well as an increasing competition for the other insurance defence work; CGL, professional negligence, cargo claims etc.

[vancouverlawyer777]

What happened in BC will be devastating to the plaintiff/defence legal community. And the injured victims are much worse off, too, with non-pecs removed, loss of future cap eliminated etc. No one highlights it but the no-fault benefits can and are cut or suspended regularly by the adjusters at the government run auto-insurer. Some of the reasons are completely frivolous such as a new adjuster taking over who needs five years of pre accident clinical records. Rights to sue on no-fault benefits have been basically eliminated, too. The only recourse is an online government tribunal. There are a handful of plaintiff firms that are testing out the new no-fault system cases. Don't know how they will do with those cases.

In terms of the rest of the country, whether no-fault spreads will depend on whether the province has a government monopoly insurer like MPIC or ICBC. In 1990s era Ontario, the NDP brought in pure no-fault in a private competitive environment and it failed. The insurers themselves realized they could not make money and could not support the complex bureaucratic infrastructure needed to run a pure no-fault system. Pure no-fault in Ontario was then kiboshed when the NDP lost power. Keep in mind that while benefits will be denied regularly under no-fault, the files never really close and accumulate over time. This results in a growing and undefined liability for a private company that simply would be unacceptable for its accountants and shareholders. Only a public monopoly insurer can run a no-fault auto system with a growing mass of bureaucrats who extend, reject, accept or suspend various type of benefits that would fill giant books. And the government regulators can cook the books to make it look like no-fault is profitable or allow for money to be pilfered out of the public insurer. In fact, that happened about three weeks ago when the BC NDP government grabbed hundred of millions of dollars out of ICBC to spend on "gas tax rebates".

I would keep an eye on the politics. If the NDP happen to take power in Ontario, Alberta or the Atlantic provinces then watch out. The first step would be a public monopoly insurer to replace the private insurers and then no-fault would follow.

 

Edited May 8, 2022 by vancouverlawyer777

[MOL]

Agreed. For no fault to "work", you'd need a government insurer which as you note comes with it's own headaches. I would have thought...hoped....(naively dreamed?) the NDP would have learned the lesson re using ICBC as a cash machine given what's gone before with successive predecessor governments but I guess the "it's good for today" mentality will always govern governments. 

[Rusty Iron Ring]

I have doubts about the future of MVA law anyway.  Cars that can avoid car accidents are a thing now, thank the engineering gods.  I'm sure there will always be accidents, and litigation that results from them, but I don't think it will be on sufficient scale to support this enormous personal injury bar in perpetuity. 

[vancouverlawyer777]

My earlier comments on the NDP and no-fault were prescient. Just 24 hours later, we get this from Andrea Horwath, NDP Leader in Ontario:

https://nationalpost.com/news/ontario-election/ontario-ndp-promises-to-lower-auto-insurance-rates-by-40-per-cent-if-elected

 

 

 

Edited May 12, 2022 by vancouverlawyer777

[MagnaCarter]

21 hours ago, Rusty Iron Ring said:

I have doubts about the future of MVA law anyway.  Cars that can avoid car accidents are a thing now, thank the engineering gods.  I'm sure there will always be accidents, and litigation that results from them, but I don't think it will be on sufficient scale to support this enormous personal injury bar in perpetuity. 

Agreed. I think this is a bigger existential threat to the PI/ID bar than the risk of pure no-fault. I know we are a ways out from fully autonomous vehicles (and the AI still struggles with some precipitation and pedestrians/cyclists), but many lawyers/paralegals with 100% MVA practices I've spoken with do not see it as an issue for the industry until 30+ years into the future. I think the well of viable claims will start drying up much sooner than that, hence my curiosity about whether any leaders in the industry are planning to MVA-proof their PI practice as opposed to just exiting through retirement.

Just from my observations: McLeish Orlando is very involved in the cycling and pedestrian space, so I glean their plan is to try to keep getting as many pedestrian/cycling CAT claims as possible. HSH is getting into LTC home and mass tort litigation. Thomson Rogers is trying to get involved with class action litigation. Bogoroch and Neinstein have always been involved with med mal and expanding their practice groups. Oatley Vigmond is still MVA heavy but picks many of the northern-GTA CAT claims and seems to do a lot of sporting-based occupier's claims or ATV stuff. Singer Kwinter has always been involved in a lot of first-party insurance coverage disputes on behalf of policyholders. But it seems most other PI firms are advancing driver/passenger MVA claims and slip and fall cases almost exclusively.

[Rusty Iron Ring]

1 hour ago, MagnaCarter said:

many lawyers/paralegals with 100% MVA practices I've spoken with do not see it as an issue for the industry until 30+ years into the future. I think the well of viable claims will start drying up much sooner than that, hence my curiosity about whether any leaders in the industry are planning to MVA-proof their PI practice as opposed to just exiting through retirement.

Yeah, a lot of people seem to be of the view that the problem will arise when cars are fully self-driving, and that this will take much longer than forecast. 

But that's missing the point. They don't have to be fully self-driving to dramatically change things. They just have to stop crashing into each other quite so often. That's already happening.  Tons of cars have collision avoidance.  I drive a regular old subaru from 5-6 years ago, and it has collision avoidance.

Damned thing slams on the brakes every time I try to play chicken with somebody sneaking through my left turn lane to get around traffic, or blocking active lanes trying to come out of a parking lot. Takes all the fun out of my commute!

[Jaggers]

Cars will hopefully stop hitting cyclists and pedestrians soon too, so that may not be a growth area.

A lot of the firms seem to be trying to get into employment disability benefits litigation too, but it's always funny when I see them because they have completely unrealistic views of what their claims are worth.

[MOL]

Thank god for CGL and specialty lines.....

[Jaggers]

When I was at the firm, I used to do some employment practices litigation insured stuff, which I understand is a growing field on the defence side.

[MagnaCarter]

I don't practice in BC, but this recent decision if upheld on appeal may increase damage awards for plaintiffs that are no longer restricted by the number of experts that may be called: https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1146/2022bcsc1146.html?searchUrlHash=AAAAAQAVQi5DLiBBdHRvcm5leSBHZW5lcmFsAAAAAAE&resultIndex=4#SCJTITLEBookMark188

The BC regime seems hostile towards the plaintiff bar. In contrast, there are few recent Ontario trials with high damage awards that should provide some basis for insurers to assess their claims a little higher.