Punitive damages for denied LTD benefits upheld on appeal.

On March 22, 2013, an Ontario judge ordered an insurer to pay $100,000 in aggravated damages and $200,000 in punitive damages after finding that the insurer had wrongfully denied its insured long-term disability benefits. In Fernandes v. Penncorp, 2013 ONSC 1637, the Honourable Justice Peter Hambly ordered Penncord Life Insurance Company to pay the damages to an injured employee. Facts The facts of the case are rather straightforward. The plaintiff was a bricklayer who had his own company. That company was profitable and had employees. When the plaintiff got injured and was unable to work...

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Defence request for 2nd medical exam denied.

On July 24, 2014, the BC Supreme Court, Vancouver Registry, confirmed that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur. In Litt v. Guo the plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the plaintiff consented to a defence medical exam with a physician that addressed the plaintiff’s injuries.  As trial neared the defence applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer...

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“Low Velocity Impact” strategy rejected by the Court.

On June 18, 2014, the BC Supreme Court considered and rejected ICBC’s “low velocity impact” strategy.  In Dunne v. Sharma the plaintiff sued for damages as a result of two collisions.  She alleged both physical and psychological consequences following these collisions.  The defendant argued that any injuries the collisions caused were relatively minor as the collisions were modest.  In support of the defendant’s argument accident reconstruction evidence was introduced which discussed the forces of the collision.  In rejecting the defendant’s argument Mr. Justice Williams...

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$1.8 million diminished earning capacity for non-working plaintiff.

On May 20, 2014, the BC Supreme Court addressed the difficult problem of assessing damages for a lifetime of disability for a plaintiff who has not yet entered the workforce. In Hermanson v. Durkee, 2014 BCSC 877, the plaintiff was involved in a motor vehicle collision and suffered a severe traumatic brain injury which rendered him competitively unemployable.  He was 18 at the time, had just graduated high school and had not entered the workforce.   He “did not excel academically” and “it became apparently that post-secondary education was not likely or realistic“. The court had to assess...

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Mediation discussions not always confidential.

On May 8, 2014 the Supreme Court of Canada carved out an important exception to the promise to keep mediation discussions confidential. Companies and their insurers rely on private mediators to settle lawsuits partly because what is discussed at mediation stays confidential. This ensures that business strategy stays under wraps and public scandal for mistakes is avoided. In 2011, Bombardier and Union Carbide tried to settle a decade-long $32,000,000 court battle through mediation. In 1997, 1998 and 2003, Bombardier bought gas tanks from Union Carbide to use in Sea-Doo personal watercraft. In...

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A release will not be enforced if it is against public policy.

On April 30, 2014, the BC Court of Appeal ruled in Niedermeyer v. Charlton [2014] B.C.J. No. 763, that a release signed by a plaintiff participating in a zip line activity did not defeat her claim for injuries sustained in a motor vehicle collision on the defendant zip line operator’s bus travelling from the zipline area. The release was contrary to public policy, which did not allow an owner/operator of a motor vehicle to contract out of liability for damages for injuries sustained in a motor vehicle accident.. The plaintiff appealed the decision of the lower court, which at summary...

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