The Ontario Court of Appeal was recently faced with this interesting question in Unifund v. D.E. et al. In this case, Mr. D.E. had a homeowner insurance policy with Unifund, which included liability coverage for actions that cause unintentional bodily injury.
Mr. D.E.’s daughter allegedly bullied a fellow grade 8 student causing her physical and psychological injuries. Mr. D.E. was a named defendant for his failure to control his daughter.
In an application, Mr. D.E. requested that his homeowner insurance policy defend and indemnify him pursuant to his policy; however, his policy contained an exclusion clause whereby Unifund would be entitled to deny coverage for “failure of any person insured by [the] policy to take steps to prevent sexual, physical, psychological or emotional abuse…”
In the initial application, the court held that Unifund was obligated to defend and indemnify as the exclusion clause did not clearly indicate whether the failure to prevent physical and psychological abuse was intentional or not. On appeal, the Court of Appeal disagreed and stated the exclusion clause was not ambiguous and directly aligned with the allegations set out in the Statement of Claim. At trial, should D.E. be found to have failed to prevent physical or psychological harm, that finding would bring his actions squarely within the exclusion clause. In the end, it was held that Unifund did not have a duty to defend or indemnify D.E.
This case underscores the importance of how contracts are worded and interpreted by policyholders and by the courts. Prior to purchasing a homeowner insurance policy, or automobile insurance policy, it is important to speak with a lawyer to ensure you understand all provisions in the policy and how they can affect your coverage moving forward.
As you may be aware June 1, 2016 marked the start of significant change to the Statutory Accident Benefits Schedule and the benefits injured Ontarians can receive.
As a result of these changes we in the legal community along with the medical community need to put on our creative “thinking caps.”
How do we effectively use the minimal Medical and Rehab funds when someone is initially Non-Catastrophic ($65,000.00 in Med-Rehab benefits and Attendant Care benefits combined when it used to be $86,000.00) but serious enough that they will eventually be Catastophic ($1 million in Med-Rehab benefits and Attendant Care benefits combined versus $1 million for each pre-June 1, 2016)?
One idea is to use community team members in multiple roles thereby cutting rehab costs – for example the Occupational Therapist. Occupational therapists are an invaluable addition to an injured person’s team. They work on a variety of goals both in the community and at home, assist with cognitive therapy and encourage rehabilitation through the performance of activities required in daily life. Along with this role I believe that O.T.’s are going to be asked to step into the role of Case Manager as well. This cost cutting measure will not only assist in reducing some of the fees associated with Case Management (which is not covered unless someone is deemed Catastrophic) but will ensure that the client is not suffering from the reduction in benefits that we are now faced with.
One way an O.T. can assist clients under the new regime is to attend Medical and Specialist appointments with their clients. Traditionally this has been the role of the Case Manager and in my opinion it is invaluable. For a client to have an advocate with them at these appointments is essential to truly understand their injury and provide guidance with regard to their current therapy and future needs.
Regular updates from the Occupational Therapist can also assist the client’s legal team and would minimize the need for lengthy Case Management reports.
To be clear I am not minimizing the need for Case Management as I believe this is a vital role in the proper management of Catastrophic clients. A good Case Manager helps guide the client and their family through the long healing process. However prior to someone becoming Catastrophic and with the reduced benefits we are dealing with, it simply makes sense to stretch the insurance dollar as far as possible.
While we all tread lightly onto this new road of rules it will be essential to continue with the creative thinking in order to be cost-effective at any and every corner.