No parent ever wants to hear from their child, “I got in a car accident, someone was hurt, and it was my fault…and the police charged me with careless driving”.

In the same token, no parent ever wants to be sued by an injured person for their child’s negligence regardless if the child has his/her own vehicle and insurance. In a recent decision, Atilho v. Malaviya, 2010 CarswellOnt 11050, the Ontario Superior Court affirmed that negligent supervision of a child is a distinct tort from the negligent driving of the child and as the Plaintiffs’ case against the parents had some merit, the parents’ home insurer had a duty to defend them.

Don’t know where your child is with his/her car? It might be a good time to find out.

On November 23, 2011, in Hotchkiss v. Kingsway General Insurance, Arbitrator Wilson ordered payment of Interim Statutory Accident Benefits following the insurer’s request for an adjournment of the Arbitration Hearing so that it could appoint new counsel.  Mr. Hotchkiss was represented by Greg Neinstein and Sonia Leith of Neinstein & Associates.

In this case, Kingsway had appointed counsel to defend the Arbitration proceeding who had a clear conflict of interest: the lawyer for Kingsway worked at the same firm as the lawyer who was representing Mr. Hotchkiss in the related matter.  Although Kingsway was aware of the conflict, they took no steps to rectify the problem before the hearing.  After first ordering that the Insurer must appoint new counsel because of this conflict, Arbitrator Wilson ordered immediate and ongoing payment of Non-Earner Benefits and Attendant Care Benefits as well as the expenses for the adjournment on the grounds that the insurer’s conduct constituted a blatant disregard of the SABS.

This case helps protect the rights of the insured so that they will not be prejudiced with an unjustified delay in their hearing by the Insurer.

The decision is available on the FSCO website.  

www.fsco.gov.on.ca