Claims (May 01, 2009)

ONTARIO JURY SETS FUTURE CARE COSTS BAR AT CDN$13.9 MILLION

The Court of Appeal for Ontario has upheld a jury award in an automobile brain injury case of roughly Cdn$17 million — including a record Cdn$13.9 million for future cost of care.

In Marcoccia v. Ford Credit Canada Ltd., Ford Credit appealed a number of aspects of the jury award, describing the future care costs portion of the award as “perverse and wholly unreasonable.”

“This amount represented approximately 96% of the maximum amount claimed by the respondent,” the court observed in its decision. “The appellant [Ford Credit] submits this amount is ‘perverse and wholly unreasonable’ and greatly exceeds any known award for future care costs in a brain damage or personal injury case in Canada, including cases that involve full paraplegic plaintiffs.”

But the court disagreed, noting that counsel for Marcoccia submitted a range of between Cdn$9-14 million for the award, whereas counsel representing Ford Credit said “a lower award in the range of Cdn$11 million would have been reasonable, albeit at the upper range of the range of reasonableness.”

“In our view, the jury’s assessment of damages in this case was not ‘plainly unjust and unreasonable,'” the court found.

HOUSEKEEPING EXPENSES NOT SUBJECT TO ONTARIO’S THRESHOLD: COURT

Auto accident claims for housekeeping and home maintenance expenses in Ontario are not subject to the province’s legislative threshold that restricts payments to those claimants who suffer from “serious and permanent” impairments, the Ontario Superior Court of Justice has ruled in Sabourin v. Dominion of Canada General Insurance.

The province’s Insurance Act does protect insurers from certain liability in auto accidents (a series of protections commonly known as “the threshold”), but the court said housekeeping and home maintenance “are conspicuously absent from those sections of the Act.”

Ontario Superior Court Justice George Valin further observed that had the Ontario government meant to include housekeeping and home maintenance within the scope of the threshold, “it could easily have added those claims to the categories of protected claims when it enacted Bill 198 [which introduced the threshold].

“It is reasonable to infer that, by not having done so, the legislature intended that the exclusion of claims for future loss of housekeeping and home maintenance services in non-catastrophic cases from the categories of protected claims should stand,” he wrote.