May 14, 2018

Beard Winter LLP wins important loss transfer case for Certas

Beard Winter LLP wins important loss transfer case for Certas

Written by: Cary N. Schneider

Download Decision | Unica Insurance Inc v. Certas (2018)

In this important precedent-setting decision, Certas Direct Insurance Company and Unica Insurance were engaged in a loss transfer dispute regarding the appropriate fault determination rules, and the circumstances of a loss involving an ice cream truck.  Beard Winter LLP litigation partner Cary Schneider represented Certas.  In the case, Unica alleged that an ice cream truck insured with Certas reversed into its insured and was responsible for the accident.  Unica advanced the proposition that Fault Determination Rule 19(a) applied as the ice cream truck was backing up and, therefore, 100% at fault. Certas, on the other hand, argued that Rule 16 (4) applied, which deals with incidents that occur in parking lots and that there is no specific provision within Rule 16 that deals with reversing in a parking lot.  Certas also took the position that there was objective evidence supporting that the ice cream truck was actually stopped at the time of the accident.  The Arbitrator agreed with Certas on all fronts.

This decision supports the proposition that accidents that occur in parking lots are subject to section 16 of the Fault Determination Rules regardless of the manner in which the accident occurred.  In particular, there is no specific provision in section 16 that addresses vehicles that are reversing in parking lots compared to other provisions in the Fault Determination Rules.  As such, once an accident occurs in a parking lot, Rule 16 serves as a complete code to addressing the specific Rules that apply.

Also, this ruling brings to our attention the importance of objective evidence and testing one’s credibility.  Certas’s insured provided consistent and credible testimony that his ice cream truck’s loud beeping noise is automatically engaged once the vehicle is in reverse.  He testified that anyone in the surrounding vicinity would hear the loud beeping noise and that it was not engaged when the collision occurred.   Unica’s witnesses testified that the ice cream truck reversed into them, but that they did not hear any beeping noises before the collision.  In addition, there were significant credibility issues pertaining to Unica’s witness’s inconsistent rendition of the facts of the case.  The Arbitrator found that the absence of the beeping noises supported the objective proposition that the ice cream truck was not reversing at the time of the accident.  The evidence of the reverse beeping noises and credibility concerns were crucial to the ultimate determination of liability in this case.

Key Takeaways:

  • The ruling of the Arbitrator stresses the importance of the credibility of the witnesses.  Proper care should be taken to strategize in advance of the examination under oath by focusing on inconsistencies and creating a paper trail for an Arbitrator to follow.
  • Attempts should be made to highlight any objective evidence to support your version of the accident, whenever possible.
  • Specific care should be taken to review the FDR in detail when dealing with cases where it is possible that more than one rule may apply.

Cary N. Schneider practices insurance, civil litigation and cyber/privacy law. He is the author of the Beard Winter Defender newsletter that addresses wide-ranging insurance related topics.

Do you have questions about this topic? Email Cary at or call him at 416-306-1751.

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