No duty to investigate information from insured.

On June 30, 2015, the Nova Scotia Supreme Court held that an insurer has no duty to investigate the information provided by the insured to unearth misrepresentations by the insured.  A broker was held liable for failing to make inquiries into whether an insured’s representative who completed the insurance applications had the necessary training or experience to do so and if not to discuss the benefits of property inspections with him. The insured was apportioned 50% liability for failing to ensure that its representatives handling the placement of insurance had sufficient knowledge...

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Appeal Court reduces punitive damages for bad faith.

On June 19, 2015, the Saskatchewan Court of Appeal reduced awards of extra-contractual damages made on March 21, 2013. The trial decision of a Justice of the Saskatchewan Court of Queen’s Bench assessed punitive damages totalling $5,000,000 against two insurers in a recent trial decision, Branco v. American Home Assurance et. al., 2013 SKQB 98. In rendering a decision in which he found the insurers’ treatment of the insured to be “calculated and abhorrent”, Justice Acton sent a message to all insurers doing business in Canada: “It is hoped that this award will gain the attention of the...

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$75,000 For chronic back pain.

In Renaerts v. Renaerts, 2015 BCSC 1028, a 24 year old plaintiff was injured as a passenger in a 2009 collision. She sustained a variety of injuries that made a quick recovery but also sustained a back injury which remained symptomatic to the time of trial and had a generally guarded prognosis. In assessing non-pecuniary damages at $75,000 Mr. Justice Brown provided the following reasons: [215] Given accepted evidence as a whole, I agree with Mr. Shew that rehabilitation should focus on healthy activity, core strengthening, and a guided exercise program. I do not see this form of therapy...

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Judge: ICBC’s expert “careless” if not “deceptive”.

In Hendry v. Ellis, 2015 BCSC 1186,  the plaintiff was injured in a collision and sued for damages. The defendant’s insurer retained a doctor who minimized the connection between the plaintiff’s complaints and the collision. At trial, through cross examination, the doctor made various admissions beyond the borders of the opinion contained in the report. In criticizing the physician’s opinion as “careless” if not outright “deceptive” Mr. Justice Jenkins provided the following reasons: [26] Expert evidence tendered at trial was that the duration of soft tissue pain is considered to be 12...

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$150,000 for bilateral wrist and femur fracture.

On June 2, 2015, the BC Supreme Court assessed damages for bilateral wrist fractures leading to permanent partial dysfunction and a femur fracture. In Ishii v. Wong the plaintiff was involved  in a 2012 motorcycle collision caused by the defendant.  He sustained fractures to both wrists, and his right femur. These injuries requires surgical intervention including the installation of hardware in both wrists and his right leg.  His dominant wrist did not fully heal and was left with permanent dysfunction.  In assessing non-pecuniary damages at $150,000 Madam Justice Gerow provided the...

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Insuring both tortfeasor and victim creates conflict.

On April 24, 2015, a 3-judge panel of the Ontario Superior Court of Justice – Divisional Court, held that where an insurer insures both the tortfeasor for liability coverage and the victim for accident benefits, the insurer should set up a firewall so that information gathered by it regarding the accident benefits claim is not available in the tort action. In Dervisholli v. Cervenak the plaintiff insured was involved in a motor vehicle collision. The insurer insured both the plaintiff’s vehicle and the defendant’s vehicle under separate automobile policies. The plaintiff brought...

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