The need for joint and several reform in Ontario has come to the forefront again, as an Ottawa man is suing the city of Orléans after his car almost disappeared down a large sinkhole.
According to the National Post, Juan Pedro Unger, his wife, Jennifer, and their young daughter have all filed lawsuits related to the trauma that Unger says he suffered when he became trapped in his 2009 Hyundai as it was slowly swallowed by Highway 174 on Sept. 4, 2012.
They are suing the city for $550,000 in damages.
Unger, suspended by his seatbelt, managed to free himself, climb out of his car and cling to the wall of the hole before being grabbed by two passersby who hauled him to safety.
The lawsuit filed by the Unger family claims that the sinkhole was caused by the collapse of a section of large metal storm-water pipe below the road and the city was negligent in not maintaining it properly.
The pipe was “severely corroded” claims the lawsuit and the city was also negligent in not warning motorists of the possible danger.
Unger suffered numerous physical and emotional injuries for which he needs ongoing therapy, claims the lawsuit
He suffered whiplash, cuts to his abdomen and legs and ongoing restricted mobility and pain in his upper body.
The lawsuit comes within weeks of a decision by the Ontario government not to proceed with joint and several liability reform, despite intense lobbying by the Association of Municipalities of Ontario and the Ontario Municipal Insurance Exchange (OMEX). (continued.)
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“Municipalities seem to be targeted as ‘deep pocket’ defendants due to a misperception that they have limitless funds through the power of taxation,” says Nahla Hanna, president and attorney in fact for OMEX. “Without a reform – higher settlement awards will continue to be assessed against municipalities.
In the case of Unger, the trauma-induced after effects he suffers from include sleeping difficulties, nightmares, depression, anxiety and a fear of driving.
“Mr. Unger has sustained, and will continue to sustain, psychological distress and loss of enjoyment of life,” states the lawsuit. “He is unable to participate in recreational, social and sporting activities… in particular he has been unable to enjoy recreational, social and athletic activities with his young daughter.”
The accident has caused Unger to lose income and, according to the suit, added a heavy domestic load on his wife Jennifer who has been forced to take leave from work.
At the heart of the problem for municipalities and OMEX is the 1 per cent rule – or joint and several rule – that places the onus on a defendant who is only 1 per cent at fault to pay the plaintiff’s entire judgment.
For municipalities to carry that lion’s share of the damage is unfair, says Pat Vanini, executive director for the AMO, but they will fulfill their obligations.
“Municipal governments if they are found at fault will do it,” Vanini told Insurance Business, “but they just don’t think that they should be the insurer of last resort, where others haven’t been able to assume that responsibility.”
