Seatbelts Save More Than Just Your Life
posted by: Admin
I've been practicing personal injury litigation for just over 20 years, the first four representing insurance companies and the last sixteen representing only plaintiffs. Over that period of time seatbelt use has increased. Safety features in our cars have become more sophisticated - largely because of the work done by injury lawyers sending the message to auto manufacturers that profits never come before people. Even so, it only takes a fraction of a second to lose everything. It only takes a fraction of a second for your family to lose you. Ironically it only takes a fraction of a second to buckle up.
We've all been told to buckle up by parents, a spouse or police officer. We can be hurt, maimed or killed if we don't wear one. The message has been beaten into us.
A film producer in the UK has come up with a short public service video that approaches the problem from a slightly different angle. It shows us how seatbelts keep our families and loved ones from harm and grief. It asks us to remember that we're loved and that we don't suffer alone when we're injured or killed in a crash.
The film is short, moving and beautiful. Please have a look.
Ted Bergeron
Queen's Student Wins Big at OTLA Cup
posted by: Admin
Queen's law student Molly Flanagan was the big winner at this year's OTLA Cup Competition, garnering four awards for Best Opening Argument, Best Examination-in-Chief, Best Overall Advocate and Best Team.
First-year law students from four schools participated in this event, which was held at the Frontenac County Courthouse in Kingston on March 5, including Queen's University, University of Ottawa, University of Windsor and the University of Western Ontario. This year's competition was presided over by the Honourable Mr. Justice Timothy Ray.
Hosted by the Ontario Trial Lawyers Association, the annual OTLA Cup competition provides law students with a unique opportunity to develop and demonstrate their advocacy skills in the courtroom environment. It is one of the very few competitions where students get to participate in a full mock trial. The trial focuses on a civil case, and students present their case before a jury made up of OTLA member lawyers and volunteers.
Ontario Trial Lawyers Association congratulates all of this year's student award winners:
Bergeron Clifford Award for Best Team Molly Flanagan, Rupa Karyampudi, Queen's University
Best Opening Argument - Molly Flanagan, Queen's University
Best Examination-Chief - Molly Flanagan, Queen's University
Best Cross-Examination - Branden Miller, University of Ottawa
Best Overall Advocate - Molly Flanagan, Queen's University
Best Closing Argument - Branden Miller, University of Ottawa
The OTLA Cup is generously supported by the association and its Members, who help organize the event, act as jurors and donate financial prizes to the students.
About the Ontario Trial Lawyers Association www.otla.com
Founded in 1991, the Ontario Trial Lawyers Association (OTLA) is an organization of more than 1,200 plaintiff lawyers, law clerks, articling students and law students. Our purpose is to promote access to justice for all Ontarians, preserve and improve the civil justice system, and advocate for the rights of those who have suffered injury and losses as the result of wrongdoing by others, while at the same time advocating strongly for safety initiatives.
Dog Owners Beware
posted by: Admin
An American insurance company thinktank is in the process of developing a home owners' insurance policy that excludes coverage for injury or damage caused by your dogs.
Home owners' insurance is designed to protect what is probably your biggest asset - your home. That's not all it does. It protects you against liability for injury or damage you cause by accident anywhere in the world. More importantly, it protects the people hurt in that accident from bearing their loss all by themselves.
Careful dog owners spend the time necessary to ensure their dogs are trained and behave properly. Even so, dogs bite.
The Province of Ontario recognized that dogs were a unique hazard in contemporary society. They're everywhere. They work for us, keep us safe and provide companionship. Even so, they bite. The Dog Owners' Liability Act creates absolute liability on the dog owner. Years ago, the law of scienter applied. The law of scienter basically says that a dog owner gets the first bite free before she can be held accountable for a misbehaved dog. The dog owner could only be responsible if she knew that the dog had bad habits. The Dog Owners' Liability Act changed all of that and took away the first free bite. It says that a dog owner is absolutely liable for the injuries caused by an owner's dog no matter whether or not it's the first time the dog has ever bitten someone.
Our home owners' insurance and tenants' insurance for rental premises have always protected us against the financial exposure of claims brought against us for the damage caused by our dogs. More importantly, those home owners' policies have protected the people who suffered the injuries from bearing financial loss all on their own.
The American Association of Insurance Services (AAIS) is in the process of trying to develop standardized insurance policy forms to exclude coverage for loss caused by dog bite.
The exclusion would likely take the form of an endorsement. An endorsement is like an add-on to a policy. If the AAIS has its way, your insurance company may soon be asking you if you own a dog. If your answer is yes, it will probably stipulate that you agree to adding an endorsement to your policy that excludes coverage for damage or injury caused by your dog. You would be asked to sign the endorsement acknowledging that you understand the limitation on your policy.
Dog bites can cause serious injury. Scars on a child's face can limit career potential. Bites to the back of the legs or the lower legs can cause continuing pain that interferes with an individual's ability to walk or stand for extended periods of time. While not all dog bites are this serious, the potential for serious injury and therefore serious exposure for a homeowner and serious loss for a victim exist.
If the insurance industry is successful in developing dog exclusions for home owners' policies, dog owners will need to take other steps to protect themselves. Individuals visiting homes with dogs will need to take extra steps to protect themselves from strange dogs. Municipalities will need to take extra care to ensure that dogs are not allowed to roam freely.
In the meantime, it's vitally important for home owners and tenants to ensure that their liability insurance is up to date.
Actionable Per Se
posted by: Admin
Personal injury cases whether spinal cord injury, brain injury or chronic pain cases all share one important feature. The plaintiff has to show that the defendant's negligence caused a loss. There are a few exceptions.
An incident is 'actionable per se' when the loss is obvious. Certain types of slander qualify. Consider the statement 'Mr. Smith is a pedophile.' We can assume the statement will make others in the community wary of Mr. Smith. Few people sit on the fence on this one. His reputation has been harmed. If it's untrue, he can make a claim in slander and the court will assume that he has suffered a loss and award him damages.
Battery, (harmful or offensive touching), is another type of wrongful act that is 'actionable per se'. Battery can range from a punch to having someone spit in your face.
Even though an act may be 'actionable per se', it's sometimes best to leave legal claims and litigation to injuries that make a meaningful impact on function or quality of life. The compensation awarded in claims where no actual loss is shown is modest at best. With dwindling court resources and our legal system under pressure to service a growing population, a claimant can expect the court to ask her to bear her own legal costs in a lawsuit advanced solely on principle.
Going Paperless
posted by: Admin
We have a new staff member. Stacey MacEwen has taken on the role of filing clerk effective January 24th.
Stacey's primary role will be to support Bergeron Clifford's paperless office initiative. All documents received are scanned and sorted to a digital filing cabinet.
Over the course of a typical personal injury claim, copies are made of financial and medical documents to allow defendants, insurance adjusters and judges to better understand the claim being advanced. Traditionally these copies were sent out in paper form resulting in many hundreds and thousands of printed pages that could have been avoided.
These copies are now sent out on digital disk where possible. Providing disclosure in this fashion is environmentally friendly and adds a layer of privacy protection for our clients.
We're happy to welcome Stacey to our growing team.
CPA Peer Mentor Program Dinner
posted by: Admin
The Kingston office of the Canadian Paraplegic Association held its annual volunteer appreciation dinner on December 14th. Peer Mentor Co-ordinator David Baldwin presented gifts to individuals who served as volunteers during 2010 including Andrea Andrecyk, Andy VanGrusven, Tamara VanGrusven, Nicole Cromwell, Joan Rose, John & Julia Stevenhaagen, Wendy Charboneau, Rex Donald and Wayne Westfall.
The Peer Mentor program, sponsored in Kingston by Bergeron Clifford, Personal Injury Lawyers, links individuals with spinal cord injury with volunteers who provide guidance, advice and support. Peer mentor volunteers share the knowledge and experience they've gained living with spinal cord injury in the community.
Anyone with questions regarding accessibility, social or recreational activities geared to individuals with spinal cord injury can contact the Kingston office of the Canadian Paraplegic Association at 613-547-1391.
Mock Courtroom Requires Mock Jurors
posted by: EBergeron
The in-house court facility in Bergeron Clifford, Personal Injury Lawyers' Kingston office is nearing completion. Local artisan and woodsmith Mark McGrath is a week away from putting the final touches on the mahogany panelling and trim.
The courtroom will host several focus groups for jury trials currently scheduled in February, March and May, 2011.
Volunteer jurors wishing to participate are welcome to contact Shawna Langille at slangille@bergeronclifford.com. Participants will be required to complete a non-disclosure agreement to help protect our clients' privacy and to safeguard the integrity of the trial preparation process.
Focus on the Moment
posted by: Admin
The Christmas season is upon us and for many people that means more driving - holiday shopping, events and parties and visiting family. Here in Ontario, we're also entering the time of year when winter weather makes road conditions more dangerous.
Bergeron Clifford, Personal Injury Lawyers would like to take this opportunity to remind you to Focus on the Moment - Don't Text and Drive. Do whatever it takes to remove the temptation whether it's turning your phone off or putting it in the trunk. Your family, friends and other drivers will thank you for it.
Bergeron Clifford Unveils Lending Library
posted by: Admin
Bergeron Clifford helps those we work with to improve their knowledge on the subjects that we find most important. We try to find the answers to the important question "how will this client be able to live with this injury?" on a daily basis.
We have compiled a lending library with many books on the topic of brain injury and spinal cord injury. We are offering these books to our clients, medical professionals, and other lawyers interested in the subject. Most of the books are specific to living with a brain injury, how to deal with the challenges involved, and methods of recovery.
A book can be kept until another person would like to borrow it, but we ask that you return the book when you have finished it. Provided with the book is a box with postage affixed. Place the book inside and drop the package off at your post office to return your library book.
To set up your account, please visit our Lending Library page.
Bergeron Clifford supports Peter Morton Memorial hockey tournament and Pro-Kids
posted by: Admin
Bergeron Clifford was a proud sponsor of the second annual Peter Morton Memorial hockey tournament. On Saturday, August 8, the second annual event took place at the Power Play Centre in honour of Peter Morton, who passed away last year. Around 25 participants raised $880 for Pro-Kids Kingston. Pro-Kids (Positive Recreation Opportunities for Kids) is an organization dedicated to helping disadvantaged kids have access to sports and recreation, and to promote healthy lifestyles.
Wheelchair available at Bergeron Clifford
posted by: Admin
Bergeron Clifford, Personal Injury Lawyers understands that the days and weeks following catastrophic injury can be overwhelming. For that reason, we acquired a powered wheelchair to assist with discharge planning, to help clients get home safely from hospital and to manage their mobility needs until a permanent chair can be purchased. To arrange for short-term loan of the chair, contact cburrell@bergeronclifford.com directly or ask your case manager or social worker to get in touch with us toll-free at 866-384-5886. Delivery and pickup are available.
An Evening with Walter Gretzky
posted by: Admin
Bergeron Clifford is pleased to assist the Brain Injury Association of Quinte District with their summer fundraising event, "An Evening with Walter Gretzky". Gretzky is the father of Canada's internationally-known hockey legend Wayne Gretzky, and will be speaking to guests about his experience with brain injury.
In 1991, Walter Gretzky suffered a nearly-fatal brain aneurysm due to a stroke, which resulted in years of memories being washed away. While recovering has been a battle, Gretzky has been a shining example of strength and optimism. He has remarked that "there is life after a stroke", and speaks to others about his own struggles and successes.
Join Bergeron Clifford in supporting BIAQD by attending "An Evening with Walter Gretzky". Live entertainment and a silent auction will ensure a fun and memorable evening. For more information, go to the BIAQD website, or call their office at 613-967-2756.
The event is at the Greek Hall, at 70 Harder Drive, in Belleville.
Blue food dye may be the key to healing spinal cord injuries
posted by: Admin
A common dye used in such candies as m&ms may be the best treatment discovered to cure the effects of spinal cord injuries.
When a spinal cord injury is sustained, the damaged nerve cells release a chemical called ATP, which damages nearby cells. This dye, tested in rats in a recent study, travelled through spinal fluid to counteract the ATP and prevented inflammation.
According to the study, human testing is still years away, and in order for the treatment to be effective, it must be administered immediately after a spinal cord injury.
See the news article at CNN.com.
Fairness Means No Double-Dipping
posted by: Admin
In many cases (but not all) fairness requires that a disabled worker reimburse her insurance company for disability benefits received when she's already being compensated for her lost income from another source. This principle was examined by the Court in Garneau vs. Industrial Alliance Insurance and Financial Services Inc. this past May.
A disabled worker started receiving disability benefits in 1996. In September of 2002, she took medical retirement and began to receive superannuation payments. Unfortunately, she forgot to tell her insurance company.
Six years later, Mrs. Garneau's insurance company discovered that they'd been paying the full amount of the monthly long term disability benefit while she had been receiving her medical retirement payments at the same time.
The contract of insurance between Mrs. Garneau and Industrial Alliance allowed the insurance company to deduct the medical superannuation payments from her long term disability payment. When you consider that she paid premiums for the insurance policy and earned the medical retirement payments by going to work every day, it may not seem entirely fair that Industrial Alliance be allowed to deduct one from the other. Nevertheless, that's what the contract said. In light of this permitted setoff (one benefit deducted from the other), Mrs. Garneau ended up owing Industrial Alliance well over $100,000.00. The insurance company stopped payment of her long term disability benefits but then reinstated the benefits three months later at 50% of the normal rate. It proposes to continue doing this in an effort to recover the money that it paid in error. The Court agrees that it can do so.
It's vitally important in long term disability cases to be aware of how the various benefits available to an injured worker interact with each other. It can become a complicated mess, particularly when the injured worker has the legal right to make a claim against an at-fault party for damages.
Knowledge and full understanding of the wording to the policies that protect you and your family are a key factor in securing your financial future. Be sure that you either understand the policies or have a lawyer who does.
Non-earner Benefits
posted by: Admin
Unemployed persons injured in a car crash qualify for a weekly benefit as long as they can show that their injuries truly disrupt their normal lives. Insurance companies continue to challenge the law in an effort to make it more difficult to qualify for these important benefits.
In a recent Ontario trial, Economical Mutual Insurance Company had been ordered by a judge to pay its insured, Mr. Heath $185 per week as a non-earner benefit as a result of injuries sustained in a motor vehicle accident. Economical appealed.
The non-earner benefit is a no-fault benefit that is paid to individuals that were not working or caring for children at the time they are hurt in a car accident. Nothing is paid for the first 26 weeks after the accident, ostensibly to save insurance companies money and keep premiums down. After receiving no support for the first 26 weeks, in insured person has to then prove that her collision-related injuries prevent her from living her normal life. Bear in mind that if a person qualifies for the benefit, this means that the injured person who couldn't carry on her normal life was forced to survive 26 weeks with no weekly benefit whatsoever from her car insurance company.
The appeal process appears to have been very difficult for Mr. Heath who represented himself. In the end, he was unable to make any submissions on his own behalf. Economical proceeded with the appeal. In the face of no opposition, the insurance company convinced the court that the initial trial judge had insufficient evidence to find that Mr. Heath suffered enough interference with his activities of normal life to qualify for the benefit. Mr. Heath's trial victory was taken away without a word said on his behalf in the appeal.
The Court of Appeal took the opportunity to review some of the cases that have considered this important benefit. Most of the cases reviewed came from the Financial Services Commission, a government body that deals with disputes between insurance companies and individuals concerning entitlement to various accident benefits.
Several key points were identified. To qualify for a non-earner benefit, an individual must:
- show the difference between her activities and life circumstances before and after an accident;
- ensure that the court or arbitrator understands what her life was like over a reasonable period of time before the accident. It's not enough to show a snap-shot of what things were like during a particularly good time before the accident;
- help the court or arbitrator understand what activities were important and meaningful - the judge or arbitrator may give those activities more careful consideration;
- show the judge or arbitrator that she's been continuously prevented from engaging in those pre-accident activities. It's not enough to show that she's only sometimes prevented from doing them as a result of her collision-related injuries;
- show the court that the degree of interference with the activity is severe. Sometimes a person can do some of an activity but not enough to make it meaningful. The evidence has to show this.
- if it's pain preventing her from engaging in the activity, show that the degree of pain is such that engaging in important daily activities is all but impossible
The Court of Appeal said that impairment must be severe before an individual will quality for this benefit but it said in an equally clear manner, that a person's individual story and circumstances are vitally important and will be considered.
In the final analysis, the Court of Appeal did not hear Mr. Heath's story. It's a cautionary tale. A good personal injury lawyers understands that your unique circumstances are meaningful. Your unique story may be the difference between success and failure in court. The outcome may have been different for Mr. Heath if he'd hired a good personal injury lawyer to share his unique story with the Court of Appeal.
See the full decision.
Dangers of Drowsy Driving
posted by: Admin
Early to bed and early to rise may make a man healthy, wealthy and wise but it could impair his ability to drive if he doesn't get enough age appropriate sleep.
The Journal of the American Medical Association reports in its June issue that drowsy drivers between the ages of 15 and 24 cause more than 1,500 fatalities per year in the United States according to the National Highway Traffic Safety Administration.
The JAMA article shares the results of surveys from the University of Kentucky at Lexington that reported that later start to the school day resulted in a significant improvement in sleep levels for teenagers. At the same time, auto collision rates in the county where the survey was conducted fell 17% for drivers between 17 and 18 years of age. Elsewhere in Kentucky at the same time crash rates in the same age group rose by almost 8%.
The article goes on to note that sleep deprivation amplifies some of the problems normally associated with teenage years and the adolescent brain. Sleep deprivation can induce dowsing, reduced levels of attention and take drivers who have little experience and impair their judgment and decision making even further.
JAMA goes on to say that even small amounts of alcohol can badly impair the performance of a teenager who has built up a sleep deficit over a number of days.
Making sure our children get enough sleep on a regular basis before they get behind the wheel of a car is an important piece in the safety puzzle, not only for our individual families but for our community. Our children need a minimum eight hours of sleep to function safely in a car. It may make sense for parents to award their children the privilege of driving only in exchange for a teenager's agreement to go to bed at a reasonable time. Senseless tragedy can be avoided by something truly rewarding - just another hours' sleep.
Understanding Your Rights: Unfair or Deceptive Acts or Practices
posted by: Admin
"Any conduct resulting in unreasonable delay in, or resistance to, the fair adjustment and settlement of claims."
Insurance companies are required to adjust claims fairly and within a reasonable amount of time. Unfortunately, there are some insurers that will cause unnecessary delays, ask for information that isn't relevant, or will not give proper notice. They are not acting in accordance with the Insurance Act, which lists the responsibilities an insurer has to its clients. If you have questions about the requirements of your insurance company, or if you believe you have been treated unfairly, talk to your lawyer.
Protection from Drivers with No Insurance
posted by: Admin
Ontario's automobile liability policy is standard. Everyone's coverage is exactly the same in terms of the basic policy. Included in the coverage is a provision that your own insurance company has to protect you where a driver with no insurance causes an accident and injury. The difficulty is that your own insurance company doesn't need to pay any more than $200,000 of compensation for your losses where the at-fault driver has no insurance. In many cases, this will simply not be enough to keep you and your family safe.
Fortunately, every standard policy can be augmented with extra endorsements. An endorsement is a "tag-on" to your policy that adds to the basic coverage. One of these add-on endorsements is called the Family Protection Endorsement. It protects you against injury caused by a driver with too little insurance as opposed to no insurance. As long as your third party liability limits are more than that at-fault driver's coverage, then you can ask your own insurer to make up the difference between your policy and the at-fault driver's policy.
It may be self-evident however it's an important point to note that a driver with no insurance is also a driver with inadequate insurance. Accordingly, where you're hurt by a driver with no insurance you can ask your own insurance company to provide you with coverage up to $200,000 under the uninsured motorist provision of your standard policy and you can also ask your own insurance company to provide you with additional coverage up to the amount of your own third party liability limits as long as you've purchased the Family Protection Endorsement.
A recent court case called McGrath v. Arshad considered what happens when more than one person is injured in a car accident caused by a driver with too little insurance.
In many accidents there are multiple people who are hurt. Where the at-fault driver has too little insurance, all of those injured people have to share the third party limits that are available in the at-fault driver's policy. In the McGrath case one of the injured plaintiffs received $20,000 out of an available $200,000. He then asked his own insurance company to make up the difference and fully compensate him. His own insurance company took the position that they only had to start paying compensation owed in excess of $200,000.
The court stated clearly that your own insurance company has to protect you fully. It stated that the Family Protection Endorsement has to start paying based on the difference between what your claim may be worth and the amount that was available from the at-fault driver's insurance company for you specifically not for the group.
The decision provides important clarification on the question of how the Family Protection Endorsement works. The Family Protection Endorsement is a vital piece of the puzzle in protecting your family against tragedy caused by a motor vehicle accident. If you haven't done so, contact your broker or agent to ensure that your policy includes the Family Protection Endorsement.
The Value of Swimming Lessons
posted by: Admin
A recent study from the Archives of Pediatrics and Adolescent Medicine notes that risk of accidental drowning is reduced by as much as 88% in children ages one to four who participate in formal swimming lessons.
In the five to 19 year old age bracket, children who had not taken formal swimming lessons were almost twice as likely to drown as those who had participated in formal swimming lessons.
The study suggested that there was no significant association between informal instruction and drowning risk.
As we live in a country containing the vast majority of the world's fresh water, swimming lessons are not only a fun activity for our children but a vitally important piece of the safety puzzle.
Bergeron Clifford Takes the Gold!
posted by: Admin
Bergeron Clifford is proud to support Kingston Literacy by participating in the 15th Annual Grate Groan Up Spelling Bee. The Bee took place on May 17th, 2009, at the Ambassador Hotel, which is a new venue for the event. Team Captain and first-rate speller Anne Newell, a court reporter in Kingston, was successfully recruited by Bergeron Clifford to lead the team to victory. Shawna Langille took up last year's role of speaking for the team with great gusto, and Cassi Burrell offered her expertise as the team's newcomer. As the reigning spelling bee title-holders two years running, and 2009's pledge-raising champions, we will continue to assist in promoting literacy to South Eastern Ontario.
Pictured: 2009 Spelling Bee champions Cassi Burrell, Anne Newell and Shawna Langille, with Honourary Chair Fred Laflamme.
This year, Kingston Literacy's Grate Groan Up Spelling Bee raised $19,150 for local family literacy programs such as the Reading and Parents Program, and the Enriched Child Development Program. Kingston Literacy gives literacy training to adults and families in the Kingston area.
Insurance Tactics
posted by: Admin
This article, hosted by the American Association of Justice, shows us how some insurance companies unjustly deny claims, discriminate by credit score, delay payments until death, and employ other tactics to make sure they make the most profit as possible, without any regard for the health of their customers.
Make sure you read "Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse" before contacting your agent in the case of an accident.
Added to the Bergeron Clifford web site with permission from AAJ.
