Chapter 8 Flashcards
Define deponent
A witness making a sworn or affirmed testimony out of court as part of the discovery process
Define aggregate deductible
A deductible applied as a whole to all claims that occur during the policy year. Once this aggregate deductible is met, the balance of insured claims are paid without a deductible
Define franchise deductible (or clause)
A provision in an insurance policy whereby the insured pays all claims up to the amount set in a franchise. If however, any loss exceeds that amount, the insurance company assumes full responsibility for the full amount of the loss, including the franchise amount
Define release
An oral or written discharge from an obligation, duty, or demand. To let go of, or give up a legal claim or right to one against whom it could be enforced
Define limitation period
The time prescribed by law within which a party has the opportunity to bring legal action
Define pleadings
The formal written allegations or denials by parties in a lawsuits to a tribunal and the remedies or dispositions the parties seek
Define statement of claim
A written statement by a plaintiff detailing the facts that support the claim against the defendant and the the relief sought
Define notice of action
A summons or notice to a party that informs the party of its involvement in a lawsuit; filed at the court and served to the party before the formal statement of claim is issued
Define statement of defence
In a high court action, a plea in reply to a statement of claim. It responds with admissions or denials to the allegations and set out additional facts, perhaps even including a counterclaim
Define cross-claim
A demand made against another party on the same side of the lawsuit. The plaintiff may file a claim against another plaintiff, or a defendant may file against another defendant
Once the insured submits a completed proof of loss, the insurer has now many days to pay the claim?
60 days
After 60 days the insured has the right to sue the insurer for payment
Define discovery
The right of discovery is the right by which a party to a civil court proceeding is enabled before the determination of any matter of consequences in those proceedings:
1. All his or her knowledge, and believe concerning the matter in question and
2. The production of all documents in his or her possession or power relating to such matter
Where there are additional costs submitted by an auto body shops or other contractors, the adjuster should consider what possibilities?
Did the contractor underprice the job at the estimate stage, perhaps in order to secure the job?
Was there a change in the scope of the damage? Was there hidden damage that was not initially seen? Should the hidden damage have been anticipated?
Did some items not respond to repairs or cleaning, with the result replacements were required?
Explain rateable proportion clause
-Where other insurance exist, the insurer shall only bear its own rateable proportion of the loss
-This means each policy pays a percentage apportionment of the loss by reference to the policy limit of each insurance
-To obtain full indemnity the insured will have to claim from each insurer its rateable proportion of the loss
Explain subrogation opportunities
-For any claim when recovery is a possibility, the loss adjuster provides notice and sends a demand letter to the liable party
-When money is owed on a recovery with respect to an automobile claim, some provinces provide the statutory right to enforce a judgement
-In property insurance, however, insurers cannot rely on any statute to enforce a default judgement
Explain denying a claim
-The decision to deny a claim should be made after a fair and thorough analysis of the claim
-The bad news that a claim is not covered should be delivered to the insured as promptly and as professionally as possible
-Loss adjusters must be specified and clear language to explain why a claim is not covered
What is the limitation period subject to the discoverability rule?
2 year limitation
What are the two court systems established
The provincial and territorial court system
The federal court system
Most provincial and territorial systems are structured into what two types?
Trial court (one of which has jurisdiction over small claims)
An appellant court (also known as appeal court)
What are solicitor-client costs?
Costs charged by a lawyer to a client. They comprise the lawyers fees and disbursement (out of pocket costs). Fees may be a set amount or based on a fixed hourly rate, or a contingency fee agreement may be in place
