Chapter 11 Liability Claims Flashcards
What are the various types of personal liability coverage?
Legal liability
Voluntary medical payments
Voluntary payment for damage to property
Voluntary compensation for residence employees
What is typically specified under the premises covered?
All premises where the named insured or his or her spouse maintains a residence
Other residential premises specified in the policy (on coverage summary page) but not business property or farms
Individual or family cemetary plots or burial vaults
Vacant land in Canada that the insured owns or rents, excluding farmland
Land in Canada on which a one-, two-, or three- family residence is being built that will be occupied
Premises the insured is using or where the insured is temporarily residing if such premises are not owned
What are insureds covered for from liability?
Personal
Premises
Tenants legal
Employers
When is there no coverage for personal liability?
Personal actions of any named insured who does not live on the described premises
Ownership use, or operation of any motorized vehicle, trailer, or watercraft except those for which coverage is shown in this form
Damage to property the insured owns, uses, occupies or leases
Damage to property in the insured’s care, custody or control
Damage to personal property or fixtures as a result of work done on them by the insured or anyone on his or her behalf
Bodily injury to the insured or to any person residing in his or her household other than a residence employee
When is there no coverage for premises liability?
Damage to property the insured owns, uses, occupies or leases
Damage to property in the insured’s care, custody, or control
Damage to personal property or fixtures as a result of work done on them by the insured or anyone on the insured’s behalf
Bodily injury to the insured or to any person residing in his or her household other than a residence employee
What perils are under tenants legal liability?
Fire, explosion, water, smoke
In addition to the policy limit, what else will coverage E cover?
expense the insurer incurs
All costs charged against the insured in any suit insured under coverage E
Any interest accruing after judgment on that part of the judgment within the amount of insurance in coverage E
Premiums for appeal bonds required in any insured lawsuit involving the insured and bonds to release any property that is being held as security up to the amount of insurance
Expenses that the insured incurs for emergency medical or surgical treatment to others following the accident or occurence
Reasonable expenses, including loss of earnings up to a specified dollar amount per day, which the insured incurs at the request of the insurer
What is included in the schedule of benefits for voluntary compensation for residence employees?
Loss of life, limb, sight or hearing
Weekly indemnity or disability
Medical expenses
What coverages have special limitations under personal liability?
Watercraft
Motorized vehicles
Trailers
Business and business property
When is there no coverage from use of watercraft or motorized vehicles?
Carrying passengers for compensation
Business
Racing
Rental
What types of vehicles are insured under a personal liability policy?
Lawn mowers, snow blowers, small garden tractors and golf carts
Motorized equipment such as wheelchairs and scooters are also insured
What are the common exclusions of personal liability?
Invasion, war or civil war, insurrection, rebellion, revolution, terrorism, military or armed forces engaged in hostiles, whether war or not
BI or PD which is required to be insured by Nuclear
Business pursuits or business use of premises except otherwise specified in policy
Rendering of or failure to render professional service
Liability imposed by any workers comp
BI or PD caused by intentional criminal act or failure to act by anyone insured or at direction of insured
Any type of abuse
Transmission of communicable diseases
Ownership or use of any motorized except as provided in policy
Ownership or use or operation of any aircraft or airport/landing facility
What must the insured comply with in the event of a claim?
Notice of Accident/Occurrence - prompt, w/ details
Cooperation - help obtain witnesses, info, evidence
Unauthorized Settlement Cov E - not voluntarily make payment or assume obligation
Action Against Insurer Cov E - no action against insurer until policy has been met or until about of insurer’s obligation is determined
Action Against Insurer Cov F & G - suit not bring suit against insurer until insured has complied or until 60 days after proof of loss
Insurance Under More Than One Policy - If there is other insurance, this will be excess
What are the three categories of liability?
Negligence, nuisance & breach of contract
What are the four forms of tortfeasor negligence?
An unintentional act
Unintentional carelessness
A failure to act
An explicit act
What are the three elements of an actionable tort?
1) A legal duty of care must be owed
2) There must be a breach of duty
3) The breach must have caused the damage
Which case study was the precedent of ‘our neighbour’?
Donoghue v. Stevenson
What are the 4 main types of damages related to insurance?
Compensatory - what someone is entitled to, making amends for the loss
Special - medical bills, etc
General - awarded by court for pain and suffering
Punitive/exemplary - to punish a defendant
What are the factors that should be considered in duty owed to a trespasser?
Gravity and likelihood of probable injury
Character of the intrusion
Nature of the premises
Knowledge the occupier had of the trespasser’s presence
Cost to the occupier of preventing harm
What are the three other entrants beyond trespasser?
Trespasser - a person who comes on to your property without your permission
Licensee ; enters with/ consent of the occupier, duty to protect from known traps and dangers
Invitee ; enters w/ consent of occupier when occupier has financial or material interest, greatest duty, ie. customers
Contractual Entrant; enters premises due to contract with the occupier
Who does the burden of proof usually lie with?
Person who sustained damage and wants to recover
What is res ipsa loquitur?
The thing speaks for itself
When does strict liability apply and what case was the basis for it?
Proof of negligence is not required as something was inherently dangerous; ie. industrial use of fire/water, commercial gas & electricity, domestic use of herbicides and wild or vicious animals
Rylands v. Fletcher; water reservoir caused damage on neighbouring property
What are the only defences against strict liability?
Act of god
Escape was caused by third party’s actions
Escape was deliberate act of outside party
Dangerous thing was there with implied consent
Dangerous thing was authorized by statute
When does absolute liability apply?
There is no defence for this; ie. control of spilled substances
What is scienter (scienti non fit injuria)?
Actual or presumed degree of knowledge that makes a person legally responsible for his or her actions
What are the three situations in which a parent would be held liable for the actions of their child?
Child was acting on parents instructions or under authority
Child was employed by the parent and acting within the scope of the employment
Damaged was caused by a dangerous thing or animal that the parents had allowed child to control
What are the major defences of liability?
Denials , emergencies, act of God, statutes, Voluntary assumption of risk and Contractual transfer of liability
What was Scott v. Shepherd?
The squib case
Proximate cause
Emergency situation
What is volenti non fit injuria?
Waives his or her right to pursue recovery due to something being dangerous but agreeing to do it
When do people willingly accept risk?
Rural premises used for agriculture
Vacant or underdeveloped premises
Forested or wilderness premises
Golfcourse not open for playing
Utility rights of way and corridors
Unopened road allowances
Private roads that are reasonably identified by notices
Recreational trails that are reasonable identified by notices
What three points must be proven for a liability claim to succeed in Quebec?
Duty of care existed
Breach of that duty
Damage was caused by that breach
At what age in Quebec are children usually not deemed to be able to differ right from wrong?
Seven
What are the six aspects of an investigation of a liability claim?
Understanding human behaviour
Determining scope of investigation
Determining who is responsible
Investigating slip and fall claims
Dealing with costs of litigation
Researching case law
What is asked to determine the scope of the investigation?
What are the facts of the case?
What documentary evidence is available?
What other information must be obtained?
What is the legal liability of the insured for the occurrence?
Is there any other party who bears any responsibility for the action?
Is there any other insurance policy that might come into play?
Is there a need to retain an expert?
Why was the claimant there?
What is the claimaint’s relationship?
Location and type of building?
What would you ask about the shoes of a claimant in a slip and fall situation?
Sole characteristics
Height of the heel
Comfort status for the claimant
Any other characteristic that may impact walking
What should be reviewed regarding the waxing of floors?
How the wax was applied
Whether the manufacturer’s directions were followed
Whether the usual product was used
Whether any specific instructions were given by the insured
Whether any inspection of the completed job occurred
Whether any defects were noted, such as unpolished spots
Explain personal liability coverage
Personal liability coverage under homeowners policies is a form of insurance meant to protect individuals and their families against the liability imposed upon them by law arising out of their daily activities that result in bodily injury or property damage to others.
They are also covered for liability they assume under a written agreement relating to their dwelling premises.
Applies only to accidents or occurrences that take place during the policy period.
The amount of insurance applies to each occurrence, regardless of how many insureds are covered or how many claims are made.
It is liability insurance for an individual’s personal liability exposures such as premises, personal activities, some contracts, and certain incidental coverages.
Define legal liability
Legal liability is imposed by law on individuals or corporations to pay for harm done to others.
Such law may be the common law, statute law, or customs that over a period of time have taken on the same status as law.
Legal liability may also be assumed under the terms of a contract.
The policy states that the insurer will pay only compensatory damages for which the insured is legally liable.
The amount of insurance stated in the policy is the maximum amount that is available to pay losses in respect of one accident or occurrence.
Certain costs and expenses associated with defending an action will be paid in excess of the limit of insurance.
What was established in Veinot v. Kerr-Addison Mines Ltd?
A trespasser should be treated with common humanity
List what is covered under the following section of coverage
Section A
Section B
Section C
Section D
Section E
Section F
Section G
Section A - Dwelling Buildings
Section B - Detached private structures
Section C - personal Property contents
Section D - addition living expense
Section E - Legal Liability
Section F - Voluntary Medical Payments
Section G - Voluntary Payment of damage to property
In the event of a personal liability claim under a homeowners policy, the insured must comply with what provisions
Notice of accident or occurrence—The insured must give prompt notice, in writing if required, and furnish all necessary details, including the date, time, place, and circumstances of the accident and names and addresses of witnesses and potential claimants. However, under the voluntary payments sections the requirements are somewhat different.
Cooperation—The insured must help the insurer obtain witnesses, information, and evidence about the accident and cooperate in any legal actions. Any documents concerning the claim received in writing by the insured must be immediately sent to the insurer.
Unauthorized settlement—Coverage E—The insured will not voluntarily make any payment, assume any obligation, or incur expenses, other than for first aid necessary at the time of the accident.
Action against insurer—Coverage E—The insured will not bring suit against the insurer until all the terms of the policy have been met, or until the amount of the insurer’s obligation to pay has been finally determined, either by judgment against the insured or by an agreement that has the insurer’s consent. The insured has one year to bring an action against the insurer once a third-party settlement has been determined.
Action against insurer—Voluntary payments (Coverages F and G)—The insured will not bring suit against the insurer until the insured has fully complied with all the terms of the policy, or until 60 days after the required proof of loss form has been submitted to the insurer.
Insurance under more than one policy—If there is other insurance that applies to a loss or claim, this policy will be considered excess insurance, and no loss or claim will be paid under this policy until the amount of such other insurance is used up.
What are the different types of damages
Compensatory damage - The actual loss sustained and nothing more, covered by personal liability policy
Special damages - out-of-pocket expenses such as medical bills, damage to clothing, salary loss, repairs to property
General damages - non-economic losses, such as pain and suffering and future expenses
Punitive damages - exemplary damages not covered by insurance
