Legal Update
Bad Faith
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Insurer who honours policy may still breach the duty of good faith.
On February 25, 2013, the Ontario Court of Appeal substantially allowed an appeal from a lower court decision striking out numerous claims in a proposed class action relating to the sale and administration of four types of life insurance policies. In Kang v. Sun Life, 2013 ONCA 118, the Court of Appeal held that plaintiffs’ claims for breach of duty of good faith and fair dealing and for deceit and fraud were not mere reiterations of the plaintiffs’ claim for negligent and fraudulent misrepresentation and should be allowed to...
read moreICBC’s expert given “very little weight” for failure to examine.
The failure of a doctor to examine a plaintiff is not, in and of itself, a barrier to the physician from providing opinion evidence to the BC Supreme Court. However, often little weight is attached to a doctor’s opinion in such circumstances. This was demonstrated in Rizzotti v. Doe, 2012 BCSC 1330, the plaintiff suffered psychological injuries in a serious collision in which the offending motorist died. At trial the plaintiff tendered expert evidence addressing the extent of her injuries. The defendant tendered a report from a psychiatrist,...
read moreInsurer pays $100,000 punitive damages for alleging fraud.
On June 22, 2012, the Ontario Superior Court of Justice awarded $100,000 in punitive damages against an insurer for alleging fraud against its insured in respect of a fire loss in circumstances which the Court described as a “high-stakes litigation strategy”. Brandiferri v. Wawanesa Mutual Insurance Co. involved a fire loss at the insureds’ home. The garage and its contents were destroyed and smoke penetrated the house. In one action the insureds claimed that Strone Construction was liable for the deficient remedial work and...
read more$75,000 punitive damages for coverage denial.
In McDonald v. ICBC, 2012 BCSC 283, the plaintiff was involved in a 2007 collision. She was at fault for the crash. She consumed two to three glasses of wine prior to operating a vehicle. As she was driving she “turned the wrong way into an oncoming van” causing a collision and injuries to the other motorist. The plaintiff was issued a 24 hour roadside suspension and charged criminally with dangerous driving and alcohol related offences. Eventually the criminal charges were dropped and the plaintiff plead guilty to careless driving pursuant...
read moreClaims administrator may owe a duty of good faith.
The New Brunswick Court of Queen’s bench held that where an insurer acts as a claims administration service only but makes decisions regarding the adjudication of claims, computation and issuance of benefits it owes a duty to the insured to act in good faith as it was adjudicating claims and benefits. As such, the traditional tort of intentional procurement of breach of contract is broad enough to capture bad faith actions by an adjuster that bring about the rejection of a meritorious claim for insurance benefits. In LeBlanc v. Atlantic...
read moreLTD claim reviewing MAY extend a limitation period.
An application by a long term disability insurer to dismiss a claim commenced by an insured on the basis that the claim was barred by the expiration of the limitation period. The application was dismissed and costs awarded to the plaintiff. In White v. Manufacturers Life Insurance Co. (c.o.b. Manulife), [2011] B.C.J. No. 2273, the plaintiff was insured for a long term disability benefits under a group policy issued by the defendant, Manulife Insurance. The plaintiff submitted an application for disability benefits on September 13, 2006. On...
read more$550,000 punitive damages for Ontario employee.
An Ontario court came down hard on an employer that attempted to terminate an employee for cause without sufficient justification for doing so. The termination and the employer’s actions related to the termination resulted in a criminal trial and a chain of events that led to the destruction of the employee’s reputation, and, accordingly to the employee, his marriage. The trial judge initially awarded the employee $25,000 in punitive damages and aggravated damages of $75,000. The employee appealed the punitive damages award and a...
read more$50,000 punitive damages for refusing to pay a fire loss.
On August 17, 2011, the insureds successfully sued their insurer in the British Columbia Supreme Court for losses suffered in a fire, as well as aggravated and punitive damages for the insurer’s refusal to pay, in Sidhu v. Wawanesa Mutual Insurance Co. In the early hours of February 7, 2005, the Sidhu’s family home was damaged by a fire. The plaintiff, Hardip Sidhu, was in the master bedroom with his wife and infant son before the fire started. He asked them to leave shortly before he heard something hit the bedroom window. He got...
read moreManulife loses “want of prosecution” application.
On May 30, 2011, the BC Supreme Court decided that Manufacturers Life Insurance Company (“Manulife”), successor to the Aetna Life Insurance Co. of Canada (“Aetna”) was unsuccessful in its application for an order dismissing an applicant’s action for want of prosecution. The decision is reported at: Toor v Aetna Life Ins. Co., 2011 BCSC 691. In 1975 the applicant, Harbans Toor purchased a policy of long-term disability insurance from Excelsior Life and the policy was eventually acquired by Manulife. In the action, Mr. Toor...
read moreThe significant role of expert evidence.
When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages. Failure to do so can result in a dismissal of the sought damages even if they are unopposed. Reasons for judgement released May 6, 2011 highlight the importance of medico-legal evidence in personal injury trials. In Moore v. Briggs the plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault. The plaintiff sued those he claimed were responsible for the assault....
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