Lawddities
Legal Oddities in (Blank) Law
When bad things
happen to good cars
A warning to all those readers who love expensive cars: this story is
a sad one.
A federal judge recently ruled in favour of two alleged joy-riders,
who really should have known better. Motors Insurance alleged in a
Detroit court that a duo of government employees, an FBI agent and
a federal prosecutor, were joyriding in 2009 when they got into an
accident in a Ferrari, according to foxnews.com.
The 1995 F50, valued at US$750,000, was stolen property that was
being kept as part of an investigation. Motors Insurance filed suit after
the government refused to pay for the damaged car. Judge Avern Cohn
described the crash as being “certainly unfortunate,” but dismissed the
lawsuit, ruling that the government has immunity in these circum-
stances because the car was in the custody of law enforcement.
For those who may only ever dream of owning a Ferrari, “clearly
unfortunate” seems like an understatement. — Matthew Grace
Lawddities
Lawddities
DREAMSTIME.COM
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Representing accident victims since 1974.
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Plaintiff bar relieved over
replacement benefit ruling
The plaintiff bar is breathing
a collective sigh of relief now
that Ontario’s highest court has
decided that income replacement benefits (IRBs) are no
longer deductible unless they are
received, as opposed to merely
being “available.” However, the
insurance bar is mystified.
On June 22 the Ontario Court
of Appeal released its decision in
Sutherland v. Singh, [2011] O.J.
No. 2901, reversing the decision
of Justice Kevin Whitaker dated
Jan. 18, [2011] O.J. No. 180.
Derrick Sutherland was
involved in a motor vehicle accident on April 23, 2006 in which
his car was rear-ended. Sutherland had a wife and three children. At the time of the accident,
he was employed full-time as a
machine operator. He claimed
that because of the injuries he
sustained in the accident, he was
temporarily unable to work and
perform his caregiving activities.
He elected to receive caregiver benefits pursuant to
s. 36( 2) of the Statutory Accident Benefits Schedule (SABS).
In 2008, Sutherland issued a
statement of claim in which he
claimed for, among other things,
past income loss.
The defendants sought to
deduct the value of the IRBs
from his past income loss. They
argued that the value of the IRBs
was “available” to him within the
meaning of s. 267.8(1) of the
Insurance Act.
A motion was brought before
Justice Whitaker of the Superior
EVELYN
TEN CATE
“If the defendants were
to succeed, they
would receive a credit
for caregiver benefits,
which Sutherland
received, and income
replacement benefits,
which he did not.
Court of Justice. In his short
endorsement, Justice Whitaker
said,
“In my view, the term avail-
able must be given its usual plain
language meaning in the context
of section 267.8(1). Where at the
point of making his election for
SAB benefits, the plaintiff can
choose to receive income bene-
fits but chooses not to as in this
case, such benefits must be
understood to have been ‘avail-
able’ to the plaintiff at the point
of the election. If available, then
according to the provisions of
267.8(1), such benefits may be
deducted from the damages to
which the plaintiff is entitled.
“I conclude that statutory
accident benefits for income loss
were available to the plaintiff as
that term is used in section
267.8(1) of the Insurance Act
and further—that such pay-
ments are deductible from the
damages to which he is other-
wise entitled.”
Justice Whitaker’s decision
was in keeping with the insur-
ance bar’s view that if the bene-
fits are available, then the plain-
tiff should be forced to apply for
them to prevent double recovery.
Apparently that view is not
shared by the higher court.
The appeal was heard by Justices Moldaver, Gillese and Karakatsanis. Justice Eileen Gillese
wrote the decision for the panel.
The Court of Appeal pointed
out that Sutherland was forced
to make an election and could
therefore only be paid one of the
Statutory Accident Benefits.
Once he elected to receive care-
giver benefits, he could not be
paid income replacement bene-
fits. Therefore, income replace-
ment benefits were not “avail-
able” to him. Additionally, the
purpose of s. 267.8 is to prevent
double recovery. If the defend-
ants were to succeed, they would
receive a credit for caregiver
benefits, which Sutherland
received, and income replace-
ment benefits, which he did not.
Justice Gillese wrote,
“This would lead to a situa-
tion in which Mr. Sutherland is
undercompensated and the
defendants would receive a
See Benefits Page 12
