Law Times

Law Times • OcTOber 19, 2015 Page 9 www.lawtimesnews.com Uninsured coverage Court considers when the clock starts ticking BY MARG. BRUINEMAN For Law Times hen does the lim- itation period for uninsured cov- erage begin? It's a question raised in a recent case, Kaushal v. Ampabeng and Aviva Canada Inc., that continues the discus- sion of an evolving issue. The case involved Chaman Kaushal, who sought to have his own insurer, Aviva Canada, named as a defendant for un- insured coverage because the other driver had no insurance. Aviva asked the Ontario Supe- rior Court to quash the motion on the basis of the Limitations Act but it was ultimately unsuc- cessful. "The issue for my determina- tion comes down to one ques- tion: Is Mr. Kaushal's claim against Aviva statute barred by operation of the Limitation Act such that there is no genuine is- sue requiring trial? The consti- tutive elements of that inquiry are the following: a) when is there a genuine issue for trial; and b) what is the operative lim- itation period for Mr. Kaushal as it relays to his claim against Aviva," wrote Justice Ria Tzimas in dismissing Aviva's motion. Kaushal had suffered soft- tissue injuries to his neck and lower back after a car accident in November 2007. He sought physiotherapy, took painkill- ers, and stayed away from his welding job until the following March, when he began light du- ties, but then left in August. The symptoms worsened and in September 2009, an MRI showed multi-level degenerative disc and fact changes. On Nov. 10, he hired a lawyer to follow up on accident benefits and start a claim for damages. And on Nov. 26, one day within the two-year period following the accident, Kaushal issued his statement of claim against the driver. But in January, the insur- ance company said the driver had no insurance. On Sept. 22, 2011, he added Aviva as a defen- dant. "Cases like this give us some clarity in different case scenari- os," says Catie Fenn, a civil liti- gator at Brown & Burnes. Fenn likes that the court said it didn't matter whether or not there were other opportunities within that period to include the insurer as a defendant and found that what happens during those intervening years is im- material. Another aspect of the case that struck her was the sug- gestion that the plaintiff should do his own due diligence inde- pendently to determine whether there was insurance and if it was valid, an argument the court didn't accept. It's an issue that's of particular concern in situa- tions where the plaintiff hasn't retained a lawyer. "That's putting undue burden on the plaintiff to investigate the issues," says Fenn. "We do see it come up." But the situation in Kaushal doesn't tell the whole story, says Charles Gluckstein, a personal injury lawyer who specializes in catastrophic injury cases. "This case really only asks: Does the first level of insurance apply?" he says, referencing the Ontario automobile policy stan- dard that provides for a limit of $200,000 when the other party doesn't have insurance. Gluckstein found it surpris- ing the claim didn't seek a larger amount under the additional family protection coverage en- dorsement that allows for the full limits of the policy to be available. That Kaushal went the route of the Ontario automobile pol- icy standard meant he had to "recreate the wheel" and seek a lesser amount, says Gluck- stein. If he had gone the other route, the decision in Schmitz v. Lombard General Insurance Co. of Canada could have a put quick end to the defence motion. The court focused on de- termining when the two-year limitation period began but it didn't address the plain- tiff 's argument that the claim against Aviva didn't start un- til he demanded payment. Sudevi Mukherjee-Gothi, a partner in the insurance de- fence group at Torkin Manes LLP, wonders how the case fits with the 2014 Court of Appeal decision in Schmitz. In that case, the court found the limitation period only starts to run the day after the plaintiff makes a legally valid claim. The difference is that the Schmitz claim fell under the family protection coverage endorsement. "When the decision was being made, it didn't really touch upon the new law in the Schmitz case," says Mukherjee-Gothi. The limitation period has been a concern for law- yers for some time. Before the Schmitz decision, there was a smaller window and, for a period, lawyers would automatically sue insurers as a precaution. Gluckstein says Schmitz offered plaintiff counsel some relief. But for insurers, it only prolongs the litigation peri- od. And since a higher court isn't due to hear the issue, lawyers expect it to stand for the foreseeable future. Using Kaushal as an exam- ple, Mukherjee-Gothi notes four years had passed between the time the crash occurred and when the plaintiff added Aviva to the lawsuit. "The best practice is always to start your case early so if these issues come up, you still have time," says Gluckstein. LT FOCUS What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Baxter_LT_Oct7_13.indd 1 13-10-01 4:03 PM W 'Cases like this give us some clarity in different case scenarios,' says Catie Fenn.

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