I had a front row seat to witness the ugly side of insurance this past weekend.

No, this isn’t another of my many rants about insurance companies.  This time it’s insurance itself that is the problem.

Insurance protects us from risk.  In the case of liability insurance, the risk is that you cause someone injury and have to come up with a bunch of money to fairly compensate the victim.

If you have liability insurance, your  insurance company pays instead of you.

That’s exactly what you buy from ICBC as your basic autoplan insurance.  If you run over a child in a crosswalk, you pay a small deductible and ICBC takes care of the rest.

Do you see a problem with that?  On a strict financial analysis, why bother watching out for kids in crosswalks?

Back to my front row seat.  I didn’t see anyone driving blindfolded through a school zone, but what I witnessed was mighty close.

My wife and three little monkeys, aged 5, 7 and 10, spent last weekend at Big White.  Friends of ours happened to be there as well, but staying in fancier accommodations.

Our friends were staying at Sundance Resort.  It’s a beautiful place, complete with a waterslide equipped pool and hot tubs.  We hung out with them Saturday evening.

This is where the front row seat comes in.  The pool and hot tubs are outside.

You highfalutin ski resort goers might find this second nature.  Not me.  In Saskatchewan, where I come from, we frolic in indoor pools in the winter time.

On the face of it, relaxing in a hot tub in sub-zero weather has some appeal.  That’s what led us to get into our bathing suits and gingerly walk barefoot down a snow crusted cement walkway.

It didn’t occur to me, until my bare feet had completely lost traction, that a fresh layer of ice would be formed every time someone got out of the hot tub and dripped their way down the path.

It was absolutely insane.  I couldn’t have conceived of a more dangerous walking surface.

An adult with a little more foresight than me, stone cold sober, would make an informed decision to stay the heck away from that hot tub.  Fail to do so, and you would be assessed partly at fault for being the author of your own misfortune.

Adults staying at a resort can be expected to take down a bit of alcohol.  Loss of sobriety brings about a corresponding loss of judgment.

This is also a family resort.  There were kids in the hot tub.  Their parents would have allowed them out to swim, reasonably expecting a safe resort environment.

How could such a dangerous situation be allowed to exist?

I blame it on insurance.  The owners are not financially motivated to carefully assess such dangers because their liability insurance has eliminated the financial risk such dangers pose.

You might hope that the insurance company would be financially motivated to ensure such a dangerous situation is rectified, but obviously that hope is misplaced.  Insurance companies spread their risk over hundreds and thousands of properties and collect premiums sufficient to pay out the odd head injury.

How do we expect property owners, and drivers for that matter, to be accountable with liability insurance in play?  In my view, there ought to be more significant consequences to causing another human being to suffer an injury than paying a deductible.

What do you think about a forehead tattoo?  Any other ideas?

Published January 19, 2012 in the Kelowna Capital News

In my September 15, 2011, column, “Only winners are the lawyers in insurance claim lawsuits”, I promised to answer the question of why contingency fees charged by personal injury lawyers are so high.

Percentages range, but one-third is typical.

On the face of it, that sounds insane.

As a comparison, you certainly wouldn’t pay a real estate agent a one-third sales commission on the sale of your house.

With a house, though, you can pay $500.00 for an appraisal and know the value up front.  Reasonably priced, and listed according to standard marketing protocols, your house is going to sell close to appraised value.

Also, the amount of work the real estate agent is going to put into selling your house is reasonably predictable.

Personal injury claims are very different.

A personal injury claim cannot be appraised.

There is no way to reliably predict how significant your harms and losses will be at the time you are hiring a lawyer.  Since your claim is for fair financial compensation for those harms and losses, there is accordingly no way to reliably predict the size of your claim.

The only “appraisal” of injury is a doctor’s prognosis.  In the early stages a medical prognosis is about as reliable as a weather forecast.

Even if there was a crystal ball that could accurately predict the course of your recovery and whether or not that recovery will be a full one, the real question is how your injuries will impact on your life.

Two people suffering exactly the same injury, with exactly the same pattern of recovery, will likely have very different harms and losses.  One, working in a desk job, might not require any time off work.  Another, a massage therapist, might never be able to return to full time work.

It is typically past the two year deadline for commencing a lawsuit to enforce your claim when your harms and losses into the future can be reliably predicted.

To illustrate this point, fair compensation for harms and losses suffered by one of my clients injured in a rear-ender crash was less than $20,000.00.  At the other end of the spectrum, fair compensation in another rear-ender crash claim was over $800,000.00.  Both of them had suffered whiplash injuries and each of them had an initially optimistic medical prognosis.

By the way, before you start hoping that the three cherries come up on the slot machine for you, consider that the $800K was compensation for a fellow with such serious, unrelenting pain that he is unlikely to ever work again.

In addition to a completely unpredictable claim size, there is no way to predict how much work the lawyer will have to do to achieve fair compensation.

If a lawyer billed his or her time hourly, a lawyer might spend as little as $10,000.00 worth of time on a case.  At the other end of the spectrum, a lawyer might spend as much as $100,000.00 of time, or more.

The amount of time spent working on a case is not related to the size of the claim.  Some of my hardest fought battles are over relatively small claims.

When I first started handling personal injury cases, approximately 15 years ago, I always offered potential clients a choice of paying me by the hour for the time I spent instead of paying me a percentage fee.  I stopped offering the choice because I found I was wasting my breath; no-one was interested in the hourly rate option.

No-one wanted the hourly rate choice because they didn’t want to take the risk that my hourly rate fees would exceed the percentage, or even exceed the total value of the claim.  They wanted me to take the risk instead.

That is what you are paying for when you agree up front to pay one-third of your claim to a lawyer.  You are paying to eliminate that risk.

You are also eliminating the risk that, where liability is not crystal clear, your case is dismissed and there is no compensation paid at all for your harms and losses.  In that circumstance, the lawyer is paid no fees at all.

Of course, if you could rely on the insurance company to pony up fair compensation for your harms and losses without having to hire a lawyer, I would be out of a job.  In fact, fair compensation achieved with the assistance of a lawyer is typically several times what an insurance adjuster will offer an unrepresented injury victim.

Published January 12, 2012 in the Kelowna Capital News

I’m gonna have to throw myself a party because the column marks my fifth anniversary as a weekly columnist with the Capital News. (Shoot me an email if want the date and time.)

It has been a lot of writing. Add up the two to three hours I spend writing each column, and my 250-plus columns translate to more than 15 weeks of work at 40 hours per week.

But “work” is a poor word for it. It has been an absolute priviledge.

I owe a debt of gratitude to the Capital News for giving me the soap box on which to preach my ideas of justice.

And if anyone deserves a party, it’s my wife, who has to endure 250-plus late evenings of me sitting with my laptop in bed the night before my deadline.

The majority of my columns have been on topic, the topic being “achieving justice” in the context of personal injury claims.

I have relished the opportunity to expose injustices and provide advice to counter insurance company tactics.

The few responding letters to the editor authored by management and high-level insurance company representatives have been feathers in my cap.

Regular readers will have noticed, though, that I more and more frequently I have been drawn to stray from the justice theme and write about driver attitudes and driver safety.

Over the many years of helping innocent victims of car crash injuries pursue fair compensation for their injuries, I have examined the causes of hundreds of crashes.

I have reviewed crash after crash after crash, each of which could have been avoided had the offending driver simply taken seriously the important task of driving a vehicle.

Car crashes are not inevitable accidents that are bound to happen.

As long as we fail to realize that, we will fail to recognize and become excited about the potential for change.

I have also gained insights into the high cost of financial and personal, of those crashes on with innocent victims.

Unless you or someone close to you has suffered those losses, you are unlikely to appreciate how vulnerable you are to suffering the same fate.

Our failure to realize the magnitude of the suffering that motor vehicle crashes cause and that we, or someone we love, could be next, will rob us of the motivation to demand change.

I am embarking on a campaign to make our roads safer, called One Crash is too Many.

You may have noticed those words at the end of several of my past columns.

My agenda is to raise awareness of the huge cost of car crashes to victims and society in general, along with the awareness that eliminating those costs is as easy as changing attitudes.

With awareness will come the motivation, and the political will to do something about it.

Wish me luck. But better yet, jump on the bandwagon. Oh, and don’t worry, achieving justice will continue to be the main theme of my column.

Published January 5, 2012 in the Kelowna Capital News 

The National Traffic Safety Board in the United States issued a press release on December 13, 2011, calling for an outright ban on the use of portable electronic devices by drivers.

Not just a ban on handheld devices; an outright ban on the use of all portable electronic devices, even hands-free.

The call for an outright ban arose from yet another series of deaths and injuries arising from drivers distracted by cell phones.

The chairperson of the National Traffic Safety Board said the following:

“The data is clear; the time to act is now. How many more lives will be lost before we, as a society, change our attitudes about the deadliness of distractions?”

In British Columbia, hand held cell phone use was banned in January, 2010.  In my January 24, 2010, column, I quoted from a summary of research findings from the Office of the Superintendent of Motor Vehicles in this province:

“Evidence also concludes that there is no difference between the level of driver distraction associated with hands-free and hand-held cell phone use.”

I posed the rhetorical question of when will we take the other step forward and prohibit wireless chatting while driving altogether.

It’s not having only one hand on the steering wheel that causes crashes.  It’s being distracted by the conversation.  Interestingly, studies have shown that conversations between driver and passenger are not as distracting.

Banning hand-helds did nothing for us except stimulate the cell phone industry.  I wonder how many millions of dollars have been wasted on cell phone peripherals as a result of the hand-held ban.

Aside from the horrendous cost to British Columbians, I would argue that instead of making our roads safer, banning hand-helds actually made our roads less safe.

Before, concerned British Columbians would have limited or completely avoided their cell phone use, conscious of the dangers of distraction.  The truly safety conscious drove with their cell phone in the trunk.

With the hand-held ban, British Columbians were sent the message that hands-free cellphone use was safe, that the problem was with the hand-held, not with the conversation.

Cell phone use by drivers has more likely increased, rather than decreased.

We have seen what effective legislation can do to stop crashes and save lives.  The new impaired driving legislation in British Columbia has been brilliantly effective.

Have you seen the statistics?  There has been an astoundingly beautiful reduction in alcohol related crashes.  Yes, there is more work to be done, but it is a fabulous start.

Let’s heed the results of the research done by our own Superintendent of Motor Vehicles.  Let’s notice the calls to action in other parts of the world.

Let’s reduce crashes and save lives with another bold legislative move and ban the use of all portable electronic devices by drivers.

Until the political will builds to the point that effective legislation is finally passed, how about be proactive.  Use this time of resolutions to resolve to pop your cell phone into the trunk in 2012.

One crash is too many.

Published December 29, 2011 in the Kelowna Capital News