Production of Statements Made Following an Accident

A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.

In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot.  The accident occurred at 8:55 p.m..  The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m.  At this point, she was aware that two people had been injured.  She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind.  The statement was delivered to the adjuster later that day.

On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.

Justice Hockin held that litigation privilege attached to the document.  The property manager knew there was an accident and that two people had been injured.  She believed that litigation would follow.  It did not matter that the defendant was not represented by counsel at the time.  The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case. 

Privilege was not waived.  Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4^th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.

Failure to Add Property Owner as Additional Insured

Many winter maintenance contracts require the contractor to add the property owner as an additional insured on its policy.  But what happens when the contractor fails to do so and the owner is sued?

In Papapetrou v. 1054422 Ontario Ltd., 2012 ONCA 506 (C.A.), the plaintiff sued the Cora Group, alleging she slipped and fell on black ice on its property.  Cora contracted with Collingwood Landscape for winter maintenance services.  In the service contract, Collingwood agreed to name Cora as an additional insured on its CGL policy, but failed to do so.  On a motion for summary judgment, Collingwood was ordered to assume Cora's defence and indemnify it for damages.  Collingwood appealed.  Cora conceded that the order to indemnify was premature so the primary issue on appeal was whether the motions judge erred in ordering Collingwood to assume Cora's defence.

The Court of Appeal set aside the original Order and substituted an Order that Collingwood pay for Cora's defence.

Simmons J.A. held that Collingwood's breach of its contractual obligation to name Cora as an additional insured did not create a duty to defend; rather, it gave rise to a remedy in damages.  The quantum of such damages is the amount Cora will be required to pay for a defence of the claims that Collingwood's insurer would have paid had Collingwood fulfilled its contractual obligations.  The costs would include all of the costs of Cora's defence except for those incurred exclusively to defend claims that do not arise from Collingwood's performance or non-performance of the contract.  Cora was entitled to separate counsel given there were distinct claims against the two parties, which meant there would be an inherent conflict between them.

Wisconsin Law Journal Profile

Recently, the Wisconsin Law Journal profiled me in its Asked and Answered column.

Wisconsin Personal Injury Lawyer

Withdrawing Deemed Admissions

When will a party be permitted to withdraw deemed admissions arising from the failure to respond to a Request to Admit?

In Epstein Equestrian Enterprises Inc. v. Cyro Canada Inc., 2012 ONSC 4653 (S.C.J.), the plaintiff served a Request to Admit eleven days before trial was scheduled to begin in 2010.  Trial was adjourned initially for one week and then again until 2012.  One of the defendants, Jonkman, failed to respond to the Request to Admit.  Rule 51.02(1) provides that a party is deemed to admit the contents of a Request to Admit if it does not respond to it within 20 days after it is served.  Jonkman sought to either set aside the Request to Admit or to withdraw the admissions.

Justice Morgan held that even though the Request to Admit was not served 20 days before trial, once the trial was adjourned and did not start for 20 days, the deeming provision applied. The main issue therefore centred on whether Jonkman was entitled to withdraw its admissions. The court may grant leave to withdraw the admissions if the following conditions are met:

1. The proposed change raises a triable issue;
2. There is a reasonable explanation for the change of position; and
3. The withdrawal will not result in any prejudice that cannot be compensated for in costs. (citing Antipas v. Coroneos, 1988 CarswellOnt 358)

Justice Morgan permitted the admissions to be withdrawn. At the time the Request was served, Jonkman was basically without legal representation as its counsel was in the process of being removed from the record. It had instructed counsel not to respond to the Request to Admit.  It subsequently brought a coverage application and was now being defended by an insurer.  The plaintiff supported the coverage application and must have understood that if coverage was achieved, a defence would be pursued. Jonkman's new counsel and insurer were unaware of the Request Admit and it would be unable to defend itself if the admissions stood.  The coverage application had been settled, and Justice Morgan speculated that the insurer's position may have been different had it known that Jonkman had effectively deprived itself of a defence by failing to respond to a wide ranging Request to Admit.

Justice Morgan was of the view that any prejudice to the plaintiff would not be inordinate as a trial would have been needed to canvas issues with the co-defendant in any event. The plaintiff further argued it was prejudiced as it had entered into a Pierringer Agreement with the remaining defendants and was concerned Jonkman would attempt to pin liability on those parties at trial. Justice Morgan held that the plaintiff had previously assumed Jonkman was insolvent when it entered the settlement and so this factor was to the plaintiff's benefit not prejudice.  The admissions were withdrawn.

Action Dismissed for Failing to Comply with Municipal Act Notice Requirement

Argue v. Tay (Township), 2012 ONSC 4622 (CanLii)

A municipality was recently successful in having a case dismissed based on the failure of the plaintiff to comply with s. 44(10) of the Municipal Act.  The section requires written notice be given to the clerk within ten days of the incident.  Section 44(12) provides that the failure to give notice can be excused if the plaintiff has a reasonable excuse and the defendant is not prejudiced by the lack of notice.

In Argue v. Tay (Township), the plaintiff alleged she sustained soft tissue injuries in a motor vehicle accident caused by potholes in the defendant municipality's road.  She provided written notice through her lawyer almost two years after the incident.  By that time, the surface of the road had changed materially.  The plaintiff argued the municipality had either actual or constructive knowledge of the accident as the municipal volunteer fire department attended the scene and would have received a copy of the police report.  The municipality brought a summary judgment motion seeking to have the action dismissed for failing to comply with the Municipal Act notice requirement.

DiTomaso J. held the plaintiff did not comply with the notice requirements.  Section 44(10) requires written notice be given to the clerk and the fact that the fire department attended or may have received a copy of the police report was insufficient to comply with the section.  There is no support in the jurisprudence that actual or construction notice pre-empts the requirement to give written notice to the clerk, and the section cannot be dispensed with in favour of notice to a different municipal department.

The plaintiff had no reasonable excuse for the failure to give notice.  She was discharged from hospital the same day as the accident, had no broken bones and was able to return to work two to three weeks after the accident.  She was aware people could bring lawsuits and believed the state of the road contributed to the accident, yet took no steps to inform herself about the law.  She was physically and mentally able to instruct counsel. 

The municipality had been prejudiced by the lack of notice.  There is a presumption of prejudice where notice has not been provided and the plaintiff bears the onus of showing there was no prejudice.  She failed to do so.  Neither she nor the municipality had photos or measurements of the road, the condition of the road had changed materially since the accident and the municipality had lost the opportunity to interview witnesses.  As a result, summary judgment was granted.

Argue is a useful summary of the relevant authorities relating to s. 44(12). Those defending municipal claims with notice issues should consider whether it would be useful to bring a summary judgment motion in the circumstances.

Concussion Baseline Testing

Concussions are a very serious personal injury, especially for children involved in contact sports.  Wisconsin high schools and colleges are becoming more aware of this problem and many are requiring baseline testing of athletes.  However, parents of younger children involved in sports may not be as aware of the problem and the need for baseline testing.  In the Milwaukee area, Children's Hospital of Wisconsin has a Concussion Clinic that will conduct such testing for only $25.  If you have a young athlete in your family, you should seriously consider such testing.  Here's a video from the Concussion Clinic explaining this:

Wisconsin Personal Injury Attorney

ExamWorks - IME's are Big Business

Previously, I wrote about Wisconsin IME doctors, medical defense doctors, and defense ("independent") medical exams and the latter two posts linked to a company formerly known as Verity Medical.  Well, Verity Medical was bought and so you get an idea of how BIG a business it is for insurance companies (and their lawyers) to hire defense medical examination brokers to get them doctors willing to fight legitimate insurance claims - I present ExamWorks. 

Depending on the day, ExamWorks, publicly traded (NYSE symbol EXAM), has been worth about $225,000,000.00 to $900,000,000.00.  How's that for big business!  And that's only one IME broker.  Here's the list companies purchased by ExamWorks between 7/14/2008 and 2/28/2011:

• MES Group, Inc., Warren, MI
• National IME Centres Inc., Thornhill, ON
• Royal Medical Consultants, Inc., Tampa, FL
• BMEGateway, Woburn, MA
• UK Independent Medical Services, Durham, England
• Health Cost Management, Beaverton, OR
• Verity Medical, Madison, WI
• Exigere, Bellevue, WA
• SOMA Medical Assessments, Toronto, ON
• Direct IME, Toronto, ON
• Network Medical Review, Rockford, IL
• Independent Medical Services, St. Paul, MN
• 401 Diagnostics, Sacramento, CA
• Metro Medical Services, East Rockaway, NY
• American Medical Bill Review, Redding, CA
• Medical Evaluations, Minneapolis, MN
• Abeton, Portland, OR
• Medical Assurance Group, Phoenix, AZ
• MedNet I.M.S., Atlanta, GA
• QualMed, Mount Laurel, NJ
• IME Operations of Physician Practice, Boynton Beach, FL
• The Evaluation Group, Southfield, MI
• Benchmark Medical Consultants, Sacramento, CA
• IME Software Solutions, Farmington Hills, MI
• Florida Medical Specialists, Fort Lauderdale, FL
• Marquis Medical Administrators, Roseland, NJ
• Ricwel, Dublin, OH
• CFO Medical Services, Roseland, NJ
• Crossland Medical Review Services, Syosset, NY
• Southwest Medical, Dallas, TX

There are still hundreds, if not thousands, of other "independent medical examination" brokers out there selling doctors to fight diagnosis, causation, allege problems are pre-existing, argue treatment was unnecessary, asserting injuries aren't permanent, etc.

FYI, too, though the companies have become savvy at hiding doctors who work for them, here's a list of the doctors in the area who were working for Verity Medical, and likely now ExamWorks:

• Mark R. Aschliman, M.D. – Orthopedic Surgeon
• Stephen E. Barron, M.D. – Orthopedic Surgeon
• David H. Bartlett, M.D. – Ortho Surgeon – Knees & Shoulders
• Paul D. Belich, M.D. – Orthopedic Surgeon
• Paul A. Cederberg, M.D. - Orthopedic Surgeon
• Steven C. Delheimer, M.D. – Neurosurgeon
• Steven Donatello, M.D. – Pain Management
• Anthony A. Ferguson, M.D. – Ortho Surgeon - Foot/Ankle
• James C. Foster, M.D., MPH – Occupational Medicine
• Steven P. Friedel, M.D. – Orthopedic Surgeon
• Dan B. Futch, D.C. – Chiropractor
• James G. Gmeiner, M.D. – Orthopedic Surgeon/ Spine Specialist
• J. Jay Goodman, M.D. – General/Vascular Surgeon                            
• Thomas W. Grossman, Jr., M.D. – Orthopedic Surgeon
• Steven I. Grindel, M.D. – Ortho. Surgeon/Upper Extremity
• Gary N. Guten, M.D. – Orthopedic Surgeon – Knee Specialist
• Timothy S. Hart, M.D. – Orthopedic/Hand Surgeon
• Scott A. Kale, M.D. – Internal Medicine
• William B. Kelley, M.D. – General Surgeon
• William R. Klemme, M.D. – Orthopedic Surgeon
• Norman Kohn, M.D. – Neurologist
• Kevin J. Kulwicki, M.D. – Orthopedic Surgeon
• Paul L. Liebert, M.D. – Orthopedic Surgeon
• Daniel P. Lochmann, M.D. – Orthopedic Surgeon
• Thomas A. Lyons, M.D. – Neurosurgeon
• Hani Matloub, M.D. - Hand Surgery
• William T. Monacci, M.D. – Neurosurgeon
• William D. Moore, M.D. – Orthopedic Surgeon
• J. Christopher Noonan, M.D. – Orthopedic Surgeon
• Michael R. Nordstrom, M.D. – Otolaryngology
• Marc J. Novom, M.D. – Neurologist
• Gregory Nystrom, D.C. – Chiropractor
• Ellen O’Brien, M.D. – Orthopedic Surgeon
• Thomas J. O’Brien, M.D. – Ortho. Surgeon/Spine Specialist
• Timothy S. O’Brien, M.D. – Orthopedic Surgeon
• Dan M Olson, D.C. – Chiropractor
• Michael W. Orth, M.D. – Orthopedic Surgeon
• Michael C. Reineck, M.D. – Orthopedic Surgeon
• Francisco Sanchez, M.D. – Neurosurgeon
• Thomas W. Schueppert, M.D. – Ortho. Foot & Ankle Surgeon
• James E. Self, M.D. – Orthopedic Surgeon
• David A. Solfelt, M.D. – Orthopedic Surgeon
• Morris M. Soriano, M.D. – Neurosurgeon
• Sridhar V. Vasudevan, M.D. – Physical Medicine & Rehab
• Michael A. Weiner, M.D. – Plastic/Hand Surgeon
• Gilbert Westreich, M.D. – Neurology
• John M. Williams, Sr., M.D. – Occupational Medicine
• Michael G. Wirth, D.C. - Chiropractor
• Randal Wojciehoski, D.O., DPM – Internal/ER Med./Podiatry
• John S. Xenos, M.D. – Orthopedic Surgeon

Note, according to New York lawyer Eric Turkewitz, Allstate (Allstate's Obstructing Justice, Allstate exposed, Insurance Companies again,  Allstate's issues continue) is getting its stable of IME doctors from ExamWorks.  Surely, that can be no surprise.

Wisconsin Personal Injury Lawyer