Wes Mussio Interviewed on the Importance of Hiring an Injury Lawyer Who Does Not Also Work for ICBC

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As discussed on our website, many personal injury lawyers supplement their practice by acting for ICBC as well. The result is a potential conflict, and clients may be left wondering whether their lawyer avoided a fight out of fear of losing ICBC’s business on other files.

Wes Mussio was recently asked to expand on this issue in an article by Kamloops Matters:

All firms that take on ICBC defence work sign strategic alliance agreements – contracts worth up to millions of dollars each year that legally prevent them from alleging bad faith or from suing ICBC for punitive or exemplary damages, even in cases where they represent plaintiffs.

“If you’re a defence lawyer or have a lot of defence files at your firm, you’re not going to be … taking some really aggressive approaches against ICBC when ICBC is being unreasonable. So it does hand-tie you a bit,” said Wes Mussio, managing partner at Mussio Goodman, a Vancouver plaintiff-only personal injury firm.

“In all honesty that would be something that has to be disclosed, but I don’t think it is unless somebody asks.”

ICBC has a more than 40-year history of hiring external legal defence firms to assist with litigation. Since 1999, the insurer has held six procurements for legal services and currently has contracts with 72 firms across B.C. that assist with litigation at below-market rates.

The practices of some of the firms on the list are limited to ICBC defence work, but most also take on plaintiff-side work, and ICBC has confirmed that all law firms it works with, and every lawyer at those firms, have agreed not to advance claims for punitive, exemplary or bad-faith damages while under contract.

The Law Society of British Columbia (LSBC), the professional regulatory body for lawyers in B.C., has on a couple of occasions addressed whether an ICBC defence firm’s strategic alliance agreement with the insurer creates a conflict of interest in the firm’s plaintiff-side work.In 2006, an LSBC bencher’s bulletin confirmed that lawyers working for ICBC must advise plaintiff clients of their relationship with ICBC, of the restrictions the lawyer is under and of the implications of those restrictions.

The recommendation to disclose the information is an ethical, not a legal, obligation. It doesn’t prevent lawyers from handling ICBC plaintiff files.

“I think there’s a problem there,” Mussio said, “because invariably if an adjuster takes a hard line on a file and denies a claim for simple benefits such as temporary total disability benefits, one of the strategies you can use as a plaintiff lawyer is to sue ICBC for bad faith or punitive damages, and the way the current rules are is you can’t do that if you have defence work in your firm.”

Goodman Law Breaks New Legal Ground With Latest Court Decision

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Goodman Law is pleased to announce our success with the judgment of Terezakis v. Ekins, 2018 BCSC 249. This application involved the plaintiff applying for leave under s.151 of the Wills, Estates and Succession Act, SBC 2009 c. 13. to secure standing to bring an action on behalf of the Estate of Aikaterini Terezakis, the deceased.

This decision is the first successful case in British Columbia where a beneficiary or intestate successor has been granted leave, based on necessity alone, to bring an action on behalf of an estate to sue for a resulting trust over a property that was transfered by the deceased before death.

Goodman Law successfully argued in Terezakis that the plaintiff had fulfilled the requisite criterion to obtain standing. The criterion being:

  1. the beneficiary made reasonable efforts to cause the personal representative to commence or defend the proceeding;
  2. the beneficiary gave notice of the application to the personal representatives and any other beneficiaries;
  3. the beneficiary is acting in good faith; and
  4. it is necessary or expedient for the protection of the estate or the interest of the beneficiary or intestate successor for the proceeding to be brought or defended.

The Honorable Madam Justice Morellato opined at paragraph 31 in Terezakis that the court can grant leave under s. 151 on the criterion of necessity alone:

“[31]        Ms. Ekins is in a difficult position.  She is the executor of the Estate, a beneficiary under the Will and also the owner in fee simple of the Richmond Property which Mr. T. Terezakis claims she holds in trust for the Estate, an allegation which Ms. Ekins vigorously disputes.  Ms. Ekins deposed in her affidavit sworn January 31, 2017 that, “in her capacity as Executor” of the Estate, she intend to take a neutral position” in the Action.  By taking a “neutral position”, Ms. Ekins is clearly unwilling to prosecute the claims articulated by Mr. T. Terezakis, on behalf of the Estate,  since a key issue in this suit would challenge her ownership interest in the Richmond Property.  Further, because of her asserted interest in the Richmond Property, she is in a conflict of interest, making her effectively “unable to proceed” on behalf of the estate.  In this light, given that I have found the other pre-conditions of s. 151 have been satisfied, I conclude that I may exercise my discretion to grant leave under s. 151 on the criterion of “necessity” alone.”

This precedent setting judgment shows that obtaining legal counsel with experience, knowledge, and expertise in estate litigation can get you results previously unheard of. At Goodman Law, we provide our Wills and Estates clients with the requisite experience, knowledge, and expertise.

News 1130 Interviews Eric Goodman on Why Injury Caps Punish Victims Instead of Bad Drivers

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From the article:

One of the key things the province is tasking ICBC to do is to, clearly and legally, redefine what a minor injury is. We know it will include things like: sprains, strains, mild whiplash, cuts, bruises, stress and anxiety from a crash but not broken bones, brain injuries or concussions.

Vancouver lawyer Eric Goodman wonders if it’s fair that someone with a minor injury doesn’t get enough money to handle a lifetime of pain. “What they’re trying to do is just use a blanket term: ‘minor injury’, and apply it to everybody no matter what the personal circumstances and that’s just not the way it works.”

He also feels having the insurance company define the word moving forward is a little biased.

“Claims that they initially determined to be minor and for which they put aside a certain amount of money to pay-off eventually turned out to be very complex. So, that in it of itself is proof that you can’t just, right after an accident say, ‘this is a minor claim, here’s a few thousand dollars, be on your way.’ These types of injuries can be insidious and it takes time to determine how it effects that individual person.”

Victoria is also looking to cap the payout for minor injuries claims at $5,500 and Goodman thinks this may backfire. “What it has shown us that in Alberta and Ontario, putting caps on injury claims do not work. In Ontario, the premiums are higher than in BC and the courts are bogged down in fighting.”

Fighting because, he adds, minor claims will be handed off to a group of independent adjudicators and Goodman expects lengthy delays as people attempt to fight for their rights.

Goodman suggests the government look elsewhere to fix the problems at ICBC.

“The fact is ICBC was wildly profitable up until just a few short years ago before the Liberals took the profits out of their coffers and before ICBC started to get very litigious in the way they handled claims. If they had just compensated claimants fairly early, we wouldn’t be in this mess. This won’t alleviate the burdens on the legal system, in fact, it may just exacerbate the problem.”

Court Rejects ICBC’s Application to Assess Our Client By ICBC Doctor

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Goodman Law is pleased to announce our recent success in the Supreme Court of British Columbia, in which we defended our client’s interests by preventing a medical assessment (IME) by an orthopedic surgeon chosen by ICBC.

IMEs are often obtained by both the claimant and ICBC during the litigation process, the purpose of which is to have independent doctors provide the parties, and ultimately the Court, with an impartial expert opinion on the claimant’s injuries. The law is clear with regards to IMEs; the Plaintiff must attend these appointments so long as they are reasonable and fair.

In this recent case, our client was in a motor vehicle accident where she suffered a number of injuries including a concussion, traumatic brain injury, and a number of soft tissue injuries. At this point of the claim, our client had already consented to an IME with a neurologist selected by ICBC.

Interestingly, ICBC instructed the neurologist to provide a fulsome report of our client’s injuries, not restricting him to opinions of a neurological nature. The ICBC doctor commented extensively on our client’s soft tissue injuries, providing views that went well beyond his expertise as a neurologist. We stood firm in our position that a subsequent IME was inappropriate as ICBC had already received a fulsome report of our client’s injuries. As a result, ICBC applied for a court order to compel our client to attend.

We argued that the second IME was unnecessary to put the parties on an equal playing field. We further argued that ICBC was simply looking to bolster the weaknesses of the previous report from the neurologist. They were in essence ‘doctor shopping’ for a more favourable opinion.

Madam Justice MacNaughton of the Supreme Court of British Columbia agreed with our submissions and dismissed ICBC’s application with costs.

Goodman Law Counsel Fred Sierecki Obtains $584,560 For Client At Trial

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Goodman Law is pleased to announce Associate Counsel Fred Sierecki’s success after a three week trial in the Supreme Court of British Columbia.

In Raptis v. Chalabiani, 2017 BCSC 1548, the Court awarded the Plaintiff $584,560 for injuries sustained in a December 2009 motor vehicle accident, which substantially exceeded ICBC’s final offer of $364,243 before trial.

The Plaintiff sustained a number of injuries in the accident, the most serious of which was to her left hip, which required surgery.  This injury made it difficult to perform her job as an elementary school teacher, and to engage in many activities that he previously enjoyed, such as running.

ICBC argued that the Plaintiff’s damages should be minimal, stemming from the fact that there was minimal damage to her car.  The Court ultimately disagreed with this argument after listening to several medical experts retained by the Plaintiff testify that minimal vehicle damage does not equate with minimal physical injury.

ICBC also argued that the Plaintiff should not be awarded any past wage loss because she simply chose to work half-time due to her two young children, one of whom was diagnosed with Autism shortly after the accident.  ICBC also argued that the Plaintiff shouldn’t have undergone the hip surgery which her surgeon felt could help reduce some of her pain.  In awarding $125,000 for past wage loss, the Court held that:

[175] In my view, it was reasonable for the plaintiff to seek the support of her physicians to work on a part-time basis following her second pregnancy in circumstances where she had struggled working full time and she was scheduled to have surgery on her hip — which ultimately occurred in January of 2015. I note that Dr. Sam expressly supported the plaintiff working on a 50% basis.

ICBC argued that the Plaintiff should not be awarded any loss of future income because she was attending a CrossFit gym which they argued was evidence of a lack of physical impairment.  The Court agreed with Mr. Sierecki’s submissions that there was a real and substantial possibility of future income loss and awarded $295,000 on the basis that she would likely only be able to work 4 days per week instead of full-time in the years ahead.  The Judge stated as follows:

[182]     In this case, I find that the plaintiff has established that her earning capacity has been impaired and that there is a real and substantial possibility that the diminishment in earning capacity will result in a loss of income. I do not agree that the plaintiff’s limitations can fairly be described as causing her mere “discomfort”. I conclude that the evidence supports her continuing to have functional limitations affecting the performance of her teaching duties on a daily basis, such as her ability to perform tasks associated with sustained or repetitive postures. As noted above, the evidence of Dr. Masri and Dr. Gilbart was that her chronic pain in her hip and lower back will likely continue and the evidence of Dr. Lamba was that her pain has an emotional component which affects how she deals with stressors. While she has been able to make a number of work modifications, they do not wholly alleviate her limitations.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced trial lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.

 

 

Injured Client Awarded $683,810 at Trial After Rejecting Final Offer of $280,000

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Goodman Law is pleased to announce our success in the British Columbia Supreme Court case of Ackermann v. Pandhar, 2017 BCSC 880.

The Court awarded our client $683,810 for injuries sustained in a 2011 motor vehicle accident, which substantially exceeded the insurance company’s final offer of $280,000 before trial.

Our client sustained a number of injuries in the accident, the most serious of which was to his right wrist, described by our orthopedic expert as “chronic and static with a very high likelihood of deteriorating over time.” This injury made it impossible to perform his job as a tile setter, and to engage in many activities that he previously enjoyed.

The insurance company argued that our client should be held 25% at fault for not wearing his seatbelt at the time of the Accident. We pointed out that our client had a legitimate medical reason for not wearing his seatbelt (a recent bladder surgery), and that, regardless, the insurance company failed to prove that his wrist injury would not have occurred had a seatbelt been worn. The Court agreed with our position.

With regards to past wage loss, we argued that our client should be awarded an amount that falls between his actual earnings before the Accident and the higher average wage for a tile setter, with which the Court agreed as follows:

[146] [T]he figure proposed by Mr. Ackermann’s counsel — the mid-point between average tile setter earnings and the actual earnings as I have found them — fairly reflects the rate increases that the business would certainly have commanded in the years since the accident (and which Andreas now enjoys in his own business) without indulging in speculation about business growth.

Our client was also awarded $385,000 for future loss of earning capacity after we successfully argued that our client had planned to work well into his 70s and had significant language barriers that likely precluded him from alternative employment. The Court agreed as follows:

[160] I conclude that the possibility of Mr. Ackermann obtaining paid employment in the future is so low that his remaining earning capacity must be considered minor at best. If he does become employed I predict that at best he is looking at entry-level service-type jobs, with virtually no possibility of replacing his pre-accident income.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.