A - Law Cases - LANDMARK LEGAL and BAER RENDALL (miss Belanger and Precision) Flashcards
LANDMARK LEGAL - WHITEN v. PILOT
Facts of the case
Trial - Appeal - Supreme Court Decisions
-(Arson-Punitive Damage-Good Faith-Duty to pay-Pilot)
-House burns. Insurer paid a few months, then stops payments without notice, alleging of ARSON
-Allegation completely discredited at trial since no evidence.
TRIAL DECISION : Jury gave 1M$ in punitive damages
COURT OF APPEAL : Reduce punitive damage to 100K
SUPREME COURT : restores the 1M$, amount considered to be within reasonable limits based on proportionality standard and highly reprehensible
-Insurer breached its duty to pay and its duty of good faith.
LANDMARK LEGAL - WHITEN v. PILOT
What (5) should punitive damage awards be proportionate to?
Proportionate to
- degree of GUILT of defendant
- degree of VULNERABILITY of plaintiff
- degree of HARM caused to plaintiff
- The NEED TO DETER
- ADVANTAGE WRONGFULLY GAINED from defendant.
LANDMARK LEGAL - WHITEN v. PILOT
3 purposes of punitive damages.
To retribute
To deter
To denounce
(To punish)
LANDMARK LEGAL - WHITEN v. PILOT
When should punitive damages be used?
- for actionable wrong in addition to a breach
- (mainly intentional tort, breach of duty to pay, but also negligence).
- Only in exceptional cases
LANDMARK LEGAL - SOMERSALL v. SCOTTISH
Facts of the case
Trial - Appeal - Supreme Court Decisions
Outcome
- insureds had serious injuries in a collision with an underinsured motorist.
- Without notice to insurer, Injured driver enters a LIMITS AGREEMENT with tortfeasor so that he admits liability, and will not to sue him in excess of his policy limit.
- Injured driver want to claim the balance on his Underinsured coverage.
- Insurer says that the LIMITS AGREEMENT prevent insured to bring a claim to insurer.
- It limits insurer’s right to subrogate against the tortfeasor.
- TRIAL : InsureR is right
- APPEAL : InsureD is right
- SUPREME COURT : agreed with insured.
Determination of legal entitlement is determined AT DATE OF ACCIDENT, not at date of the claim.
Insurer is required to pay the amount in excess of what the insured has received from the other driver.
-Amendment to Underinsured Coverage SEF44 to remove ambiguity is recommended.
LANDMARK LEGAL - SANSALONE v. WAWANESA
Facts of the case
Majority Decision
Minority Decision
TRUC : fille dans un autobus, elle se sent ALONE
- Girl sued Sansalone, Scalera and 3 other bus drivers for ALLEGED DAMAGES FROM SEXUAL ACTS on a minor.
- Wawanesa, Sansalone’s insurer, denied coverage based on exclusion for “BI caused intentionally”.
- Lloyd’s Scalera’s insurer, denied coverage based on exclusion for “BI caused by Intentional or criminal act”.
- Issue : Does both insurers have a duty to defend?
- Decision : neither have a duty to defend in a split 2-1 decision.
- MAJORITY : if the injury is the natural and probable consequence of the act, the intention to commit the act is the intention to cause the injury.
- NO DUTY TO DEFEND by the intentional act exclusion.
-MINORITY : Sansalone committed intentional tort without intending to cause injury. Sansalone did ALLEGED SEXUAL ACTS with negligent belief that the victim consented. Insurers has DUTY TO DEFEND for intentional acts causing injury, but not injury caused intentionally
LANDMARK LEGAL - NICHOLS v AMERICAN HOME
Facts of the case
Trial - Appeal - Supreme Court Decisions
Outcome
- Insured is sued for allegation of fraud, but case is dropped.
- Insured claims defense costs to insurer
- Insurer says no duty to defend because fraud is excluded under contract. Case go to court
- COURT : No proof of fraud, so insurer HAS duty to defend
- APPEAL: insurer HAS duty to defend.
- SUPREME COURT : Insurer has NO duty to defend.
- Duty to defend is triggered when there is duty to indemnify.
- Fraud is excluded, so no duty to indemnify
- Hence, no duty to defend
- Insurer wins
LANDMARK LEGAL - AMOS v ICBC
2 questions the Supreme Court considered
Court Decision and Rationale
Could this judgement by applied in Ontario?
TRUC : Amos, c’est ghetto, ça tire du gun!
-Insured is shot in California and seriously injured by a gang surrounding his car
-coverage is triggered for injury “ARISING OUT” of the ownership, use or operation of vehicle”
Supreme court consideration
(1) PURPOSE TEST : does the accident result from ordinary activity to which auto are put?
(2) CAUSALITY TEST : is there SOME CAUSAL RELATIONSHIP (not necessarily direct) between injury and ownership, use or operation?
SUPREME COURT : gave reason to insured
-Anyone who can establish connection between use of vehicle and his injuries is entitled to coverage.
Could not be applied in Ontario, since policy refers to injury “CAUSED BY” and not “ARISING OUT”
LANDMARK LEGAL - PACIFIC HOLDING v GUARDIAN
TRUC : Qui est pacific enough to hold a claim for 1 year?
-Insured had a multi-risk policy
-He made a fire claim more than one year after loss occurred
The claim was made within one year of filing proof of loss.
-Insured sues insurance company for denying coverage.
- Insurer position : Part 5 (Fire Part) of BC Insurance says it should be within 1 year of loss occurrence
- Insured position : Part 2 says within one year of proof of loss
- TRIAL and APPEAL : gave reason to insurer
- SUPREME : gave reason to INSURED.
- Multi-peril policies are subject to Part 2, even though loss caused by fire.
- Insured wins and insurer needs to pay
- Recommendation to amend insurance act to remove ambiguity
LANDMARK LEGAL - ALIE v BERTRAND ET FRERE
- TRUC : Alie s’allie avec d’autres homeowners contre suppliers Bertrand et Lafarge
- Alie and hundreds of homeowners sued Bertrand for use of defective concrete provided by Lafarge
- TRIAL : Bertrand and Lafarge liable.
- Primary and excess insurers have duty to indemnify and duty to defend.
- COURT OF APPEAL : confirm trial decision
- Excess insurer has duty to defend, unless excluded in wording.
LANDMARK LEGAL
3 cases involving Duty to Defend - and their judgment
SANSALONE v WAWANESA
-no duty to defend in case involving intentional sexual acts as coverage is excluded
NICHOLS v AMERICAN HOME
-No duty to defend in cases involving fraud act or omissions if they are out of the scope of the policy.
ALIE v BERTRAND
-Excess insurer has duty to defend, unless excluded in wording
LANDMARK LEGAL - RESURFICE CORP v HANKE
Facts of the case
Outcome of trial and rationale
Outcome of Supreme Court and rationale
2 requirements for the application of “material contribution” test in determining causation
Hanke badly burned sues manufacturer of ice-surfacing machine for negligence in making gasoline and water tanks so similar, leading to his mistake
TRIAL : Hanke did not prove negligence of manufacturer. It was Hanke’s error, not manufacturer’s error.
Decision due to Hanke’s own admission and due to “but for rule” test.
APPEAL : keep same judgment, but finds that Trial Judge erred in foreseeability and causality analyses (should have used the “MATERIAL CONTRIBUTION” test
SUPREME : manufacturer not liable for injury.
assessment of comparative guilt is not necessary since it is Hanke’s error and not a design error. Also “but for rule” test is the basic test, so Material Contribution Test not justified in this case.
–Plaintiff cannot prove negligence of defendant using the “but for rule” test because of factors outside of plaintiff’s control
–The defendant must have exposed claimant to unreasonable risk with his negligence and the plaintiff must have suffered a loss.
LANDMARK LEGAL - MORROW v ZHANG
facts of the case
TRIAL outcome and rationale
APPEAL outcome and rationale
injured suffers soft tissue injury. Says the $4000 cap on non-pecuniary damage for minor injury (from Minor Injury Regulation MIR) is not constitutional
TRIAL
injured says cap is discriminatory against MI victims because they cannot be “fully compensated for non-pecuniary damage as major injureds.
-Stigmatize MI victims
-judge says CAP is discriminatory and is removed.
APPEAL
-judgment is reversed. CapisNOT DISCRIMINATORY.
When looking at law in its totality, no stigmatization of MI victims.
-Appeal says capis LEGAL
LANDMARK LEGAL - PIPEDA
finds it is appropriate to collect and use credit score to assess property insurance UW risk.
score is less intrusive than accessing entire credit report
consent form was deficient and misleading
need to clearly explain the information collected and the purpose it is used for
review consent form so that it explicitly says that credit info could be used in rating
LANDMARK LEGAL - AVIVA v PASTORE
fact of the case
2 Main issues
Arbitrator and Director’s Delegate decision
Ontario Divisional Court Decision
Appeal decision
Pastore have car accident and seriously injured to leg after procedure. After using one leg for so long, other leg not working properly.
Assessment made by DAC (Designated Assessment Centre) says its a CAT impairment.
1) Aviva argues that need 4 conditions need to be met to be a CAT impairment:
– daily function
– social function
– concentration
– ability to work
Pastore impacted by 1 out of 4 conditions.
Arbitrator and Director Delegate say:
-1 out of 4 is sufficient to declare CAT impairment
AND
-Physical and mental impairment rating should be on a cumulative basis (difficult to separate one from the other)
Ontario Divisional says :
- 4 out of 4 is required
- Physical and mental must be separated to determine CAT impairment
APPEAL : confirms Director Delegate decision, it is a CAT impairment.
-AVIVA must pay the insured