Amendments to the Minimum Maintenance Standards - Part 3

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 3:  New Patrolling Requirements

The MMS previously required routine road patrols and, during the winter maintenance season, required additional patrols of representative highways, as necessary, to check for snow and ice.  There has been no change to the routine patrolling requirement but the MMS now provide that if the weather monitoring discussed above indicates that there is a substantial probability of snow accumulation, ice formation or icy roadways, then municipalities must patrol representative highways, at intervals deemed necessary by the municipality, to check for snow and ice.  There is no change to the provision describing what patrolling consists of and by whom it can be done. 

Amendments to the Minimum Maintenance Standards - Part 2

This week we continue our review of the amendments to the Minimum Maintenance Standards which came into effect on January 25, 2013.

Part 2: New Requirement to Monitor Weather

The MMS did not previously require weather monitoring, although municipalities generally did so as part of winter maintenance operations.  The MMS now require municipalities to monitor the weather, both current and forecast for the next 24 hours.  From October 1 to April 30, weather must be monitored three or more times per day, at intervals determined by the municipality.  From May 1 to September 30, weather must be monitored once per day.  This amendment is clearly a response to Giuliani, in which the municipality was faulted for failing to monitor the weather and deploy resources in time to avoid the formation of ice on the road. 

The MMS definition of weather as “air temperature, wind and precipitation” tells municipalities what to monitor but the MMS do not state how this is to be done.  In addition, the MMS allow municipalities to determine the intervals at which the weather is monitored.  While these factors will allow monitoring systems to reflect local conditions, including budgetary constraints, we can expect to see claims challenging municipal decisions about the intervals at which weather is monitored and the methods used to do so.

Bad Drivers Shouldn’t Profit Off of Good Drivers’ Health Insurance

By Frank Pasternak

Imagine a law that will only benefit those people who do not have any health insurance and wrongdoers.

Well on February 13, Sen. Paul Farrow (who represents an area of Waukesha County that includes Pewaukee, Delafield, Hartland and Waukesha) and Sen. Glenn Grothman (who represents an area near West Bend and parts of northern Ozaukee County, including Port Washington and Cedarburg) did more than just imagine it; they introduced it. It’s Senate Bill 22, a law that would eliminate a long-standing rule of law in Wisconsin called the “collateral source rule.”

Basically, the rule says that benefits an injured person receives from sources that have nothing to do with the wrongdoer or “bad guy” causing the injury may not be used to reduce the bad guy's liability to the injured person. In other words, bad guys don’t get credit for benefits the injured person received just because the injured person was insured. This has been the law of Wisconsin for about 100 years.

The simple truth behind the rule is clear: wrongdoers should not benefit from the fact that the person they wronged was responsible enough to get insured. Unfortunately, however, as with many things, politics seems to have gotten in the way. Somehow, liability insurance companies like American Family, West Bend and others have convinced law makers, like Farrow and Grothman, that the bad guys should benefit from the fact that the injured person was responsible.

The law Farrow and Grothman have introduced will basically harm senior citizens, people who get insurance through their employer, and those on Medicaid. Ironically, the people who benefit from this law are those who do not have any health insurance and wrongdoers.

Let me explain: Say there’s a car accident where the wrongdoer ran a red light and caused four different people to incur $100,000.00 in medical bills each. All four suffered the same injuries and needed the same medical treatment. However, Victim #1 had no insurance, Victim #2 had Anthem BCBS through his employer, Victim #3 is a senior citizen on Medicare, and Victim #4 is a poor person on Medicaid.

Farrow and Grothman’s proposed law will allow into evidence the fact that Victim #2’s Anthem BCBS paid 80% of the bills due to contractual write-offs, the fact that Victim #3’s Medicare paid 60% of the bills, and Victim #4’s Medicaid paid 40% of the bills. As a result of Farrow and Grothman’s proposal, the recovery for medical bills will likely be:

1. Victim #1 $100,000 (the uninsured guy)
2. Victim #2 $80,000 (Employee with employer-sponsored health insurance)
3. Victim #3 $60,000 (Senior citizen with Medicare)
4. Victim #4 $40,000 (Poor person with Medicaid)

Now remember, the amount of the bills for all four people was the same $100,000. They all suffered the same injury in the same accident, but because of Farrow and Grothman’s proposed law, the bad guy causing the accident gets the benefit of the fact that Victim #2 was an employee with employer-sponsored health insurance, Victim #3 was a senior citizen on Medicare, and Victim #4 was a poor person on Medicaid. The other beneficiary of the proposed law would be Victim #1, the uninsured.

Under the current law, the red-light-running driver must pay the reasonable value of the injuries he caused, $400,000. Under the new proposal, the driver running the red light-will likely only pay, $280,000.

Under Wisconsin law today, the bad guy causing the accident does not get the benefit. The bad guy is simply responsible for the amount of the bills, assuming it is reasonable, and the only person who benefits is the person responsible enough to have insurance, the collateral source. Wisconsin law today says, rightfully, that bad guys do not get to benefit from good guys having insurance. The law today says that if anyone in this situation should benefit, it is the one who did not cause the accident. Surely, the one who caused the accident should not benefit.

Sadly, however, politics makes strange law, but I hope that’s not the case here. I believe in better. You deserve better. Sen. Grothman and Sen. Farrow should not support this law.

Email Sen. Paul Farrow at Sen.Farrow@legis.wisconsin.gov and Sen. Glenn Grothman at Sen.Grothman@legis.wisconsin.gov and tell them why they should not support this law. Tell Sen. Grothman and Sen. Farrow that this attempt to change Wisconsin’s 100-year-old law is unfair to Wisconsin citizens who are responsible enough to get health insurance.

The original version of this article is at Stand Up for Your Rights Wisconsin

Wisconsin Personal Injury Lawyer

Amendments to the Minimum Maintenance Standards - Part 1

The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 47/13, which came into effect on January 25, 2013.  Many of the amendments are a response to the Court of Appeal decision in Giuliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.) in which the court’s interpretation of the snow clearing and icy roadways standards limited their use as a defence to civil actions.  The amendments also provide more specific guidance to municipalities whose systems of winter road maintenance are based on the Minimum Maintenance Standards.  

In our next series of posts, we will be reviewing the changes to the MMS.

 

Part 1: New Definitions Added to Section 1

 

Section 1 of the MMS now contains the following definitions:

• “Ice” is defined as “all kinds of ice, however formed”.  Ice was not previously defined.
• “Snow accumulation” is defined as the natural accumulation of newly-fallen snow, wind-blown snow and/or slush that covers more than half a lane width of a roadway.  This definition was previously contained in the snow accumulation standard in section 4 of the MMS, which has been replaced as discussed below.
• “Substantial probability” is defined as “a significant likelihood considerably in excess of 51 per cent”.  This definition relates to patrols and maintenance activities that are done in anticipation of snow accumulation or ice formation, discussed below.  This definition may be the subject of debate in future civil cases, as it does not specify how much more than 51 per cent is “considerably in excess”.
• “Weather” is defined as “air temperature, wind and precipitation”.  Weather was not previously defined.

Examination for Discovery: Attendance of Parties

When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?

In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party.  The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative.  Master Glustein permitted the representative to attend.  A corporation has the right to attend examinations for discovery as an independent legal entity.  The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions.  The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel.  The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.

This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.