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Additional Insured coverage
What does it mean to be additional insured ? The law, like most things, can sometimes be ambiguous. Where some laws are straight forward and easily understood, others leave a great deal of room for interpretation. In the latter case, it is often left to the courts to interpret the law and set precedent. This has certainly been the case for Additional Insureds.
Additional Insured coverage occurs when one company engages in a business relationship with another company. Such relationships, while often beneficial, can sometime create the risk of lawsuits. An example of this would be a landlord hiring a contractor to shovel the snow from the walkways in the winter. Should a tenant of the building slip and fall on ice, that tenant could sue both the landlord and the contractor for damages.
As an Additional Insured, the contractor could request protection under the landlord’s general liability policy, but since the law has not been clear, these requests for defense have often been denied by insurance companies. The rationale being that there was a lack of clarity. The insurance company would say that contractor should have independent liability insurance of their own and, when cases like this came to court, the rulings on Additional Insureds have not been consistent.
A recent case, The Corporation of the City of Markham. v. Intact Insurance Company has done a lot to provide some clarity around Additional Insureds. In this slip-and-fall-case, the City of Markham and a contractor hired to keep the sidewalks clear of snow, both requested defense from the Intact Insurance Company. Intact took the position that Markham was not entitled to a defence and was not an additional insured for the purposes of this claim as it had failed to call out the contractor on the date of the incident. The Judge ruled that “The mere possibility that a claim falls within the policy triggers the duty to defend”, and that since the Plaintiff had alleged negligence on behalf of both the city and the contractor and that the city was a named additional insured, Intact could not opt out of defending the city. The judge further ruled that the city was entitled to appoint and instruct a counsel of its choice at Intact’s expense, as well as the past costs of defending the main action.
The court was very clear in the insurance company’s responsibility to provide a defense. Meaning that Intact Insurance would need to pay for separate counsel if the City of Markham did not believe that the one lawyer could effectively represent both parties.
Much of the confusion stems from a series of cases that were decided differently, in particular, the case of Atlific Hotels and Resorts Ltd. v. Aviva Insurance Company of Canada, 2009. At the time, a guest of the Deerhurst Resort slipped on an icy pathway and the Aviva insurance company refused to provide a defense to Deerhurst as an additional insured. The judge found that since there were different categories of negligence in this action and that only of the categories, snow and ice removal, fell within the coverage, the insurer only had to provide the contractor with a claim. However, the court ruled that Aviva had to provide the defence in part to Deerhurst, but it was appealed soon after because the parties felt the decision lacked clarity. The cases ended up being resolved before the appeal was heard and the clarity never came to be. Since the decision was not in line with previous decisions, there was confusion as to how to apply the law.
Although the Markahm v. Intact decision has shed some light on how insurance companies must interpret the additional insured’s clauses of their liability policies, we will have to wait for a new Ontario Court of Appeal decision to provide clearer instructions and guidance in this area of litigation law.
Ontario Court of Appeal Ruling
A Starbucks employee has landed in hot water in a lawsuit after a recent ruling of th
e Ontario Court of Appeal allowing a Brampton, Ontario teenager to proceed with her lawsuit against Starbucks, the store manager and the barista for negligence over a scalding incident that took place in 2015. In the suit, the Plaintiff alleges that the employee negligently poured hot water on her hands, causing impairment and permanent injuries.
Coffee chain lawsuits
While the latest scalding lawsuit against a coffee chain is not news, this decision is quite significant for Ontario workers and their employees. The decision makes it very clear that when someone is injured as a result of employee negligence, that employee can be held liable.
In the December 22, 208 ruling, the three-judge panel offered a ruling in the lawsuit that Starbucks and its employees, “failed to take re
asonable or any care at all to ensure that the Plaintiff would be reasonably safe while attending Starbucks,” and to “prevent injury… which they knew or ought to have known.” It stated further that Starbucks employed, “incompetent servants or agents and/or staff to ensure the safety of the Plaintiff,” and failed to “instruct properly… their employees in proper methods and procedures to be used to regulate water temperatures and handle hot beverages. “
This new ruling rejects an earlier agreement to strike the statement of claim against the barista and store manager. At that time, the lower court judge wrote, “The general rule remains that the employees are not liable for what they do within in the scope of their authority on behalf of their corporation.”
In the 2015 incident, The Plaintiff asked the barista to fill a baby bottle with warm water. According to the Plaintiff’s statement, the employee filled the bottle with scalding hot water and spilled water on her hands causing severe and permanent injuries.
It remains to be seen whether or not any judgement will be enforced against the employee herself since Starbucks is such a large corporation that was likely insured at the time of the alleged incident.
Lawsuits against coffee shops
Nonetheless, scalding suits continue to emerge; sometimes legitimate cases and sometime urban lore partly on account of the now famous 1994 case against McDonalds in New Mexico. The case, which was examined in a 2011 documentary, awarded a woman close to $3 million in damages after she spilled hot coffee on herself.
If you have been injured by the carelessness of a store employee or due to another person’s negligence, please take the time to call us to learn about your rights. We understand, we care and we are here to help.
Rowan’s Law and Concussion Injury
In a much anticipated move to prevent, detect, manage and understand concussion injury in amateur athletes, the Ontario government introduced Bill 193, Rowan’s Law . The proposed new law is named after Rowan Stringer, a 17-year-old Ottawa-area rugby player who
died in 2013 after suffering several concussions.
The past few years have seen a growing awareness of concussion injuries and the deadly impact of returning to sport before these injuries are treated and a concussion injury has healed. This proposed new law will serve as a benchmark for Canada in concussion awareness, prevention, detection and management.
What is required after a concussion injury ?
The bill has a number of key elements that would require athletes, coaches, educators and parents to:
· Conduct an annual review of concussion awareness resources.
· Set out and adhere to a system to ensure that athletes suspected of having a concussion are removed from sport and establish a protocol for their safe return.
· Establish a return-to-sport procedure for athletes who have sustained a concussion, or who are suspected of having sustained a concussion.
To create further awareness, the legislation would also proclaim “Rowan’s Law Day” to be observed on the last Wednesday of September.
Study after study has proven that too many young people experience concussions while participating in organized sports and recreational activities, sometimes with tragic outcomes. This has become a public health issue and with dire consequences.
· 64 per cent of visits to hospital emergency departments among 10-18 year-olds are related to participation in sports, physical activity and recreation.
· Among children and youth (10-18 years) who visit an emergency department for a sports-related head injury, 39 per cent were diagnosed with concussions, while a further 24 per cent were suspected of possible concussions.
· Football, soccer and hockey have all shown a greater than 40% increase in rates of reported head injury (relative to other injuries) between 2004 and 2014 for children and youth.
As a parent and coach, I have been trained to recognize the symptoms of head injuries, but this is not the case with all coaches, teachers, group leaders and parents.
Thankfully, the Ontario government has moved swiftly in introducing this legislation. It is an important first step in changing the way we treat sports injuries and in championing the well-being of amateur athletes.
Accident on an escalator or elevator injury …
An elevator injury or escalator injury can be devastating. Elevator or escalator injuries have transformed the lives of millions of people around the world by enhancing their mobility and independence, a convenience that cannot be overlooked. Yet, people still feel uncomfortable using them at times and worry about safety.
An elevator injury is more common than an escalator injury with 7,300 escalator and 9,800 elevator injuries requiring hospitalization in the United States each year. In most cases, injuries happen as a result of result of slips and falls. So, it’s no surprise that children and the elderly are the most vulnerable.
People of all ages and abilities use elevators and escalators every day in shopping centers, apartment buildings, offices and transit stations each person using them in a different way.
When using elevators and escalators, follow these safety rules to avoid an elevator injury:
· Watch the direction of the moving step and step on and off with extra care.
· Take care if you are wearing bifocals or similar eyewear.
· Hold children firmly with one arm or hold child’s free hand.
· Hold small packages firmly in one hand, but always leave one hand available to hold the handrail.
· Do not go in the opposite direction of the escalator.
· Do not try to stop a closing door with anything including hands, feet, canes, etc. Wait for the next elevator.
· Watch your step, and enter and exit carefully.
· Hold children and pets firmly.
· Stand clear of the doors, and keep clothes and carry-ons away from the opening.
· Hold onto the handrail if one is available.
When injuries do occur, it may be difficult to prove who is liable. The manufacturers, maintenance companies and building owners will first want to prove that the elevator or escalator was used properly – handrails were used, the rider did not engage in reckless behaviour. However, accidents do happen because of faulty products, poor building design or lack of maintenance.
If someone is injured on an escalator or elevator as a result of poor design, the victim could file a liability suit against the manufacturer. When the injury can be attributed to poor building maintenance, failures in inspections or other unsafe conditions, the victim could hold the building owner responsible for failing to keep them safe under the Occupiers’ Liability Act.