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HomeMy WebLinkAboutFND-019-12 Clarftwn REPORT FINANCE DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: September 24, 2012 Resolution#: l By-law#: Report#: FND-019-12 File#: Subject: 2012/2013 INSURANCE PROGRAM RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report FND-019-12 be received; 2. THAT the general insurance placement, in conjunction with the other member municipalities of the Durham Municipal Insurance Pool, with the Frank Cowan Company for an integrated pooling arrangement that includes integrated insurance coverages and common self retention deductible levels for the period July 1, 2012 to June 30, 2013 at an approximate cost to Clarington of $874,403 be confirmed; and 3. THAT Council request that the Province support AMO's initiative to seek reform of Joint and Several Liability Legislation to provide relief to municipalities by reducing their cost of insurance claims and insurance premiums and that a copy of this resolution be forwarded to John O'Toole, Member of Provincial Parliament. ,f Submitted by: ell, Reviewed by: Nancy Taylor, E A, CA. Franklin Wu, Director°of Finance/ Chief Administrative Officer Treasurer NT/hjl CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 REPORT NO.: FND-019-12 PAGE 2 1. BACKGROUND 1.1 The purpose of this report is to provide an update to the General Purpose and Administration Committee regarding the status of the Municipality's insurance program. 1.2 This report also includes a review and update of the Durham Municipal Insurance Pool (DMIP), which is now entering its twelfth year of successful operations. 1.3 Clarington is a founding member of the DMIP which was established to achieve financial savings by co-operatively purchasing insurance coverages with local and pool level deductibles and by implementing common risk management practices. The Pool protects participating municipalities from increasing insurance premium costs through an alternative risk-financing program with a higher single deductible and collectively self-insuring claims within that deductible. Clarington has held the position as Chair of the Board of the DMIP since its inception. 1.4 The Durham Municipal Insurance Pool (DMIP) was launched in July 2000 with the participation of the Town of Ajax, Town of Whitby, Municipality of Clarington, Township of Brock, Township of Scugog, Township of Uxbridge and the Region of Durham. 1.5 DMIP's success over its 12 years has generated surplus funds since its formation of approximately $5 million, set aside to offset future insurance costs resulting from unstable insurance markets in the future or to provide the Pool with the financial resources to fund higher deductible levels. 2. 2012/2013 INSURANCE CONTRACT RENEWAL 2.1 The DMIP has negotiated with the insurer to secure the broadest and most comprehensive coverage available to municipalities and includes such things as property coverage, liability coverage, auto, non-owned auto, property, errors & omissions, environmental and various other policies. 2.2 The DMIP has been able to position itself to minimize the impact of increases in insurance premiums paid to insurance companies related to property, casualty and liability coverage's through the following mechanisms: REPORT NO.: FND-019-12 PAGE 3 • Since the DMIP is self insuring the majority of the claims, it is important to recognize that the provision for premiums paid to the insurers forms less than one-third of the total contributions paid by the participating municipalities. • The remaining balance paid by the participating municipalities is set aside to be available in future years to pay for claims that fall within the DMIP's deductible. • In addition, the interest earned on funds set aside by DMIP that would have been paid to the insurance company is returned to DMIP members through lower overall insurance costs. • In order to help stabilize DMIP costs over the next couple of years, DMIP's insurer has provided DMIP with the assurance that the average property rate increase and the average premium per vehicle increase will remain at current levels and that there will be no rate increases. 2.3 The increase for the 2012/2013 premium year for Clarington's contribution to the DMIP to cover insurance costs and necessary contributions to claims reserves is $91,877 or an 11.7% increase. This compares favourably to insurance cost increases facing neighbouring municipalities and Regions in the GTA in the range of 10% to 30%. 2.4 The Board of Directors of the Durham Municipal Insurance Pool (of which Clarington sits as Chair), has placed coverage with the Frank Cowan Company for an integrated pooling arrangement. 3. BENEFITS OF AN INSURANCE POOL 3.1 The main components of the structure of the DMIP arrangement are summarized as follows: • Each municipality retains their respective current local deductibles ranging from $5,000 to $100,000 (Clarington's deductibles are primarily $25,000); • The Pool self insures losses between these local deductibles and a per claim limit of$500,000 (on a group basis) for integrated coverages; • Under this structure, local municipalities are responsible for funding losses from $0 to their individual deductible amounts; REPORT NO.: FND-019-12 PAGE 4 • Between these local municipal deductibles and the pooled retention limit of $500,000, the seven members share the cost on a collective basis; and • Excess of a $500,000 per claim loss, the members purchase insurance from municipal insurers for protection on a collective basis against catastrophic claim losses. 3.2 There are a number of benefits to participation in an insurance pool including: • Control over impact of premium increases from third party insurers. Since the premiums paid to insurers form less than one-third of the total contributions paid by participating municipalities, annual percentage increases by those third party insurers are spread over a much smaller premium cost. • Since the pool self-insures a majority of claims and there is a significant time lag before claims are paid, the interest earned by DMIP holding funds that would have been paid to insurance companies upfront through premiums to cover claim costs, is retained by the DMIP rather than the insurers earning this interest. • Pool members have found that we can access risk management resources superior to those that individual municipalities could afford on their own. • The pool provides significant education and professional support to pool members. • There is greater control by DMIP member municipalities in the area of administration, governance and claims. • Members share in investment income as well as equity. The current surplus of approximately $5 million has been set aside and will be available to offset any future premium increases or fund higher deductible levels or address claims reserves. • Member municipalities no longer pay for external adjusting fees for the majority of claims. Over the past five years, approximately 3,500 pool claims did not require external adjusting fees that would have been an estimated average cost of$300 per file. • DMIP and member municipalities have instituted a proactive claims reporting process. This has resulted in early investigation of claims and establishment of reserves and can then result in an early resolution, thereby reducing overall claim costs. • Risk management services result in loss control. 2011/2012 DMIP risk management services included presentations and seminars to staff of REPORT NO.: FND-019-12 PAGE 5 member municipalities (Minimum Maintenance Standards, Parks and signage, critical injury reporting), contract wording reviews (liability transfers, hold harmless agreements, insurance clauses in leases etc.), risk management software, and property valuations. These items come at a cost that would not normally be affordable for each individual municipality. 4. INSURANCE CLAIMS 4.1 DMIP like every municipality in the Province of Ontario has seen a marked increase in the severity of bodily injury claims. The factors that are driving up the cost of claims include: 1) Courts are often sympathetic to injured claimants. 2) Municipalities are held to very high standards of care. 3) People are more aware of the level of service to expect, and the recourse they can take if they have been wronged. 4) Municipalities are perceived as having "deep pockets" and/or high insurance policy limits. 4.2 The case law over the past 20 years has created new liability exposures and current municipal legislation does not provide sufficient or effective liability protection for municipalities. 1) Escalating Judgments: Liability claims take many years to settle resulting in additional claim inflation costs. Judges are awarding higher damage amounts. A few years ago, $5 million liability awards were uncommon. Today, larger awards are becoming commonplace. Court awards for severe bodily injury claims have increased dramatically in the last few years. Claims that may have been settled for $5 million five years ago are now settling in the range of$12 million to $18 million. This combined with increased expense costs of legal experts and the need for expert witnesses substantially increased the cost of claims. 2) Cost of Future Care Increasing: Future care costs are the largest expense of a bodily injury case. These costs have all dramatically increased and include such things as increased medications, rehabilitation costs, 24/7 nursing, loss of income, education needs, assistive devices, home renovations and transportation. REPORT NO.: FND-019-12 PAGE 6 3) Class Action Lawsuits: Municipalities and corporations in Canada are facing an increasing trend of class action suits which is beginning to follow the footsteps of the U.S. The Durham Municipal Insurance Pool has seen this first hand. In 2005, the Canadian Bar Association's National Class Action database noted 29 new class action lawsuits were filed across the country. In 2011, 95 new class action lawsuits were launched. 4) Joint and Several Liability: The insurance premiums paid by municipalities reflect the legal reality that municipalities are "deep pocket" defendants, often targeted for litigation because the law has established such a low threshold of responsibility. Just a fraction of fault can cost a municipality millions of dollars. The joint and several provisions of the Negligence Act, indicate, "Where damages have been caused or contributed to by the fault or neglect of two or more persons...and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering the loss or damage..." Also known as the 1% rule, the joint and several provisions may oblige a defendant, which is only 1% at fault, to pay the plaintiff's entire judgment. 4.3 Effective claims management helps to reduce liability costs. DMIP will continue to advocate for judicial reform to joint and several legislation and minimum maintenance standards. 5. Adverse Litigation Facing Ontario Municipalities 5.1 Guiliani Decision • A recent decision by the Court of Appeal for Ontario, (Giuliani v. Region of Halton et al, Dec. 2011), has severely undermined the defense previously available to municipalities in winter road maintenance cases with regard to Minimum Maintenance Standards for municipal roadways and highways. • The Giuliani case involves a motor vehicle accident during a winter storm. In this case, the amount of snow that had fallen at the time of the accident was two centimetres. Section 4 of the Minimum Maintenance Standards does not address snow accumulation until it reaches five centimetres. Section 5 of the Minimum Maintenance Standards applies to ice on roads by addressing how to deal with existing ice. • In the Giuliani claim, the Plaintiff claimed that the defendant municipalities did not properly monitor weather conditions and did not patrol for ice. The Plaintiff essentially claimed that the municipality did not do enough to prevent the ice from forming. Neither monitoring of weather conditions nor ice patrols are dealt with in the Minimum Maintenance Standards. REPORT NO.: FND-019-12 PAGE 7 • As a municipality with jurisdiction over roads, Clarington does have exposure to winter road maintenance claims. While the Clarington maintains Level of Service Policies, there is still concern that plaintiff counsel will be able to criticize the steps taken before ice even forms, and this includes monitoring of weather conditions, road patrolling and steps taken to prevent ice when it reasonably could have been anticipated. • The Giuliani case no longer has any further appeal options. The Region's insurer was advised on May 17, 2012 that the Application for Leave to Appeal had been submitted to the Supreme Court of Canada for consideration. On June 28, 2012, the Supreme Court of Canada dismissed the Application for Leave to Appeal. • This could have wide-ranging liability implications for Ontario municipalities who may no longer be able to rely on the Minimum Maintenance Standards as a defense in winter road maintenance claims. • While Giuliani has weakened Minimum Maintenance Standards based defences to ice or snow road maintenance cases, the municipality can still have a defensible position. • Clarington will be reviewing the implications of this decision upon our winter road maintenance practices. • As a result of the problems and implications of the Guiliani decisions, the Minister of Transportation has agreed to open up the Minimum Maintenance Standards regulations this fall. 5.2 Deering Decision • Another Court decision that will impact all municipalities in the Province of Ontario is Deering vs. City of Oshawa and Township of Scugog. In 2010, there was an unfavourable judgment awarded by the Court against both municipalities. • An appeal was made to the Ontario Court of Appeal to overturn the judgment. The Ontario Court of Appeal has recently made the decision to dismiss the municipalities' appeal with respect to the accident which happened on Coates Road West during the evening of August 10, 2004. This is cause concern for municipalities and taxpayers regarding a municipality's legal obligations with respect to the maintenance of its roads. • All municipalities should be very concerned about the ramification of these decisions and its implications for municipalities in the Province. Therefore, the DMIP's insurers are now submitting the application for leave to appeal to the Supreme Court of Canada. REPORT NO.: FND-019-12 PAGE 8 6. CONCURRENCE - Not applicable 7. CONCLUSION 7.1 Risk pooling is a long-term management strategy. It is not a "quick fix" for insurance pricing problems. The full benefits of participation in a risk pool are not fully realized for several years. The DMIP has now been in existence for a sufficient period of time that these benefits are being realized on an annual basis. 7.2 In 2011, the Association of Municipalities of Ontario completed its first comprehensive survey of municipal insurance costs across the Province. The survey reveals that since 2007, liability premiums have increased by 22.2% and are among the fastest growing municipal costs. In comparison, DMIP liability premiums have increased a total of 7.5% during the same time period. Increase Comparison 25% Inflation vs. AMO Est. Municipal and DMIP Insurance Costs AMO 20% / Estimated 15% / / 10% / DMIP 5% 0000 - CPI: All Items *--0. _ - - 0% 2008 2009 2010 2011 7.3 For the 2012/2013 year the Durham Municipal Insurance Pool has been successful in obtaining a reasonable insurance placement. Participation in the Durham Municipal Insurance Pool has provided a successful mechanism both to control insurance costs as well as promote risk management practices to reduce claims and protect against lawsuits. Therefore Clarington proceeded with the insurance placement in conjunction with the Durham Municipal Insurance Pool with the Frank Cowan Company, pursuant to our subscribers' agreement. REPORT NO.: FND-019-12 PAGE 9 CONFORMITY WITH STRATEGIC PLAN The recommendations contained in this report conform to the general intent of the following priorities of the Strategic Plan: _ Promoting economic development X Maintaining financial stability Connecting Clarington _ Promoting green initiatives Investing in infrastructure _ Showcasing our community _ Not in conformity with Strategic Plan Staff Contact: Nancy Taylor, B.B.A., C.A., Director of Finance/Treasurer List of interested parties to be advised of Council's decision: John O'Toole, MPP Queens Park Office Room 445, Main Legislative Building Toronto, Ontario M7A 1A8