How lawyers, insurers get away with highway robbery
The endless rip-off in car insurance rates is a never-ending tale of Ontario the good versus Ontario the bad.
We are among the best drivers on the continent, with the lowest accident rates and injury statistics. That’s the good news for nearly 10 million passengers and drivers on our roads.
And yet we have the worst premiums in the country — $1,458, on average, in 2015. That’s double the cost in Quebec, and 55-per-cent higher than the national average.
How is such highway robbery — billions of dollars in excess premiums — still possible, year after year?
Our politicians love to blame crooked tow truck firms for driving up costs every time they drive our vehicles to corrupt garages, which pay kickbacks for every battered car body and greedy health clinics that maximize billings from bodily injuries.
Yes, the system is plagued by criminality and venality. But that’s only part of the story.
What’s bleeding the system of billions of dollars isn’t just the criminal element but the legal element. The problem isn’t a lack of legality but an excess of litigation.
That means too many lawyers siphoning money from the system, lining their own pockets from a shrinking pool of accident victims. But don’t blame lawyers for being lawyers — it’s the enablers who bear the blame. And all of us who pay the price. Remember that auto insurance is not a discretionary expenditure — it is mandated by law and then outsourced by our elected government to the private sector. The result is legalized anarchy — profit-focused insurers who lawyer up against accident-chasing law firms that bank on big contingency fees from desperate clients.
An adversarial system that subverts natural justice.
An investigation earlier this year by my Toronto Star colleagues Michele Henry and Kenyon Wallace found unscrupulous tactics by lawyers whose clients seek their help navigating a legal maze of insurance payouts.
No less damning is a report produced for Queen’s Park this spring by an outside expert, David Marshall, who documented the abuses that have resisted all previous efforts at reform.
Released quietly amid the fanfare of the spring budget, it delivered a depressing verdict on a system at cross-purposes with itself.
No surprise that the governing Liberals tried to bury the report.
Four budgets ago, under pressure from the NDP during the 2011-14 minority government, they targeted a15-per-cent reduction in average rates. The Liberals only managed an 8-per-cent drop before losing traction.
Marshall doesn’t mince words about the corrosive effect of cash on all players in the system: “About one third of benefit costs, some $1.4 billion . . . is being paid for competing expert opinions, lawyers’ fees and insurer costs to defend claims — instead of going to treatment of injured parties,” he writes. “Lawyers need to be held accountable for much more transparency in how they advertise and how they charge their fees.”
Ontario’s army of accident lawyers protest that they are just helping people, poor people, who couldn’t otherwise afford to pay to play when going up against insurers who hold the strongest cards. But high stakes litigation is a self-perpetuating problem, not the solution.
Accident victims are fodder in a system where cash is king. Lawyers and insurance companies fight to the death over money, rather than focusing on quality of life. Litigation versus rehabilitation. The report calls for more definitive health reports from independent assessors, rather than duelling experts, a simpler framework that reduces the need for high-priced legal help and an emphasis on medical “care not cash” — improving outcomes instead of pushing up payments.
Echoing much of the Star’s investigative work, however, Marshall keeps returning to the problem of how accident victims are victimized by for-profit insurers and re-victimized by lawyers taking their outsized cut. In one case, the Star documented a victim who received only 25 per cent of her insurance settlement.
Marshall calls for restrictions on how lawyers advertise, what they pay each other for referring clients and those outsized fees. He wants any settlement cheques made jointly payable to both client and lawyer — forcing a clear accounting by law firms before they get their hands on the cash. And he urges claimants be informed in writing, when the cheque arrives, that they can appeal their legal fees — a wise suggestion that too few people know about.
Lawyers needn’t be demonized for doing what they do if the law is dumb enough to allow it, but they’d better disclose it. Politicians from all parties, however, have run out of excuses for our substandard insurance regime — and should be held to account in next year’s election campaign.
“No one government bears the responsibility for the current state of automobile insurance in Ontario,” Marshall concludes. He’s right — they all do. All major parties have perpetuated a system that pits insurers against their policyholders, with lawyers profiting from the confusion and conflict. Liberals and Tories profited from regular campaign donations by the insurance industry — now banned.
And we are all paying the price — victims, drivers and passengers. Martin Regg Cohn’s political column appears Tuesday, Thursday and Saturday. mcohn@thestar.ca, Twitter: @reggcohn