Land Cases Flashcards
Whiten v Pilot Insurance Co (2002): Facts
- family house burns down
- insurer pays for temporary shelter then ceases payments
- insurer claims they aren’t liable due to arson (but has no evidence)
Whiten v Pilot Insurance Co (2002): Issues
did Pilot Ins use the power imbalance to force InsD into a smaller settlement?
Whiten v Pilot Insurance Co (2002): Rulings 1,2,3 (initial, appeal, SuprCrt)
RULING 1: jury awards 1m punitive
RULING 2: ON appeals court reduces to 100K
RULING 3: Supreme Court restores 1m
Whiten v Pilot Insurance Co (2002): Details - general
awards of this type should consider PROPORTIONALITY along several DIMENSIONS
Whiten v Pilot Insurance Co (2002): Details - dimensions
- Blameworthiness of InsR
- Vulnerability of victim
- Harm to victim
- Deterrence to insurer
- consider other Penalties insurer may have incurred
- punitive award should not been seen by the insurer as a “License” (no financial gain for insurer)
Somersall v Scottish & York: Facts
- victim is severely injured by UNDER-insured driver
- injured party & tortfeasor sign limits agreement
- injured party also claims against OWN insurer for excess beyond limits agreement
- insurer denies claim
Somersall v Scottish & York: defn - limits agreement
agreement between injured party & tortfeasor where:
* tortfeasor admits liability
* injured party won’t sue for more than tortfeasor’s limits
Somersall v Scottish & York: defn - SEF No. 44
endorsement providing coverage to insured when tortfeasor is UNDER-insured
Somersall v Scottish & York: Issues
Regarding insurer:
* Does limits agreement imply plaintiff not legally entitled to further recovery from tortfeasor?
* (insurer then effectively loses subrogation rights)
Somersall v Scottish & York:Rulings 1,2,3 (initial, appeal, SuprCrt)
RULING 1: motions judge rules for insurer
RULING 2: ON appeals court reversed original ruling (plaintiff recovers under SEF 44)
RULING 3: Supreme Court dismissed insurer’s appeal (plaintiff recovers under SEF 44)
Somersall v Scottish & York:Ruling - Supreme Court reasoning
at time of accident, SEF 44 was in effect, therefore:
→ subsequent limits agreement did not preclude coverage under SEF 44
Sansalone v Wawanesa: Facts
- BC Transit bus drivers sexually abused a teenager
- Wawanesa DENIED defense & coverage: policy terms exclude bodily injury caused intentionally
Sansalone v Wawanesa:Issues
how does (duty to defend) relate to (duty to indemnify)
- does insurer have a duty to defend where indemnification is beyond scope of policy
Sansalone v Wawanesa: Ruling 1 (initial trial)
RULING 1: there IS duty to defend because bus drivers may have (mistakenly, negligently) believed consent had been given (insurer appeals)
Sansalone v Wawanesa: Ruling 2 (appeal)
RULING 2: appeals court rules there is no duty to defend (2-1 split decision)
Sansalone v Wawanesa: majority reasoning
IF act is intentional AND injury is (natural, probable) THEN there is intention to cause injury (therefore excluded by policy)
Sansalone v Wawanesa: minority reasoning
act WAS intentional BUT injury was not
- defendant had invalid belief of consent
- there IS a duty to defend (but not indemnify)
Nichols v American Home Assurance: Facts
- a solicitor was accused of fraud but found innocent
- sought defence costs from professional liability insurer
- InsR denied claim
Nichols v American Home Assurance: Issues
- how does (duty to defend) relate to (duty to indemnify)
- does insurer have a duty to defend where indemnification is beyond scope of policy
Nichols v American Home Assurance: Ruling 1 (initial trial)
Insurer must defend
Nichols v American Home Assurance: Ruling 2 (appeal)
ON appeals court dismissed appeal:
- (duty to indemnify) versus (duty to defend) different
- must pay defense since defendant was found innocent
Nichols v American Home Assurance:Ruling 3 (Supreme Court)
Supreme Court allowed appeal:
- (duty to defend) is triggered (by duty to indemnify)
- since fraud beyond scope of coverage –> no duty to indemnify –> no duty to defend
Alie v Bertrand Frere Construction: Facts
defective concrete requires replacement of basements of 140 houses in Ottawa (built between 1986 and 1988)
Alie v Bertrand Frere Construction: Issues
INDEMNITY COST ALLOCATION:
- different years were covered by different insurers
- which policies were triggered?
DEFENCE COST ALLOCATION:
- how are defence costs ALLOCATED between primary & excess insurers?
Alie v Bertrand Frere Construction: Ruling 1a
INDEMNITY TRIGGER: injury-in-fact
- consider each 1-yr period from construction to realization of defect in 1992
- assume that damages are evenly spread over all years
Alie v Bertrand Frere Construction: Ruling 1b
DEFENCE TRIGGER:
- excess/umbrella policies have duty to defend provided..
- ..they follow the form of the underlying policy AND do not specifically exclude duty to defend
Precision Plating v Axa Pacific Insurance: Facts
- insured had a fire on premises causing chemicals to overflow and contaminate neighboring property
Precision Plating v Axa Pacific Insurance: Issue
- does insurer have a duty to defend
- pollution/contamination is EXCLUDED by policy
- but insured argued that cause of loss was fire & therefore covered
Precision Plating v Axa Pacific Insurance: Ruling 1
- chambers judge held for insured (insurer must defend)
- policy terms were ambiguous
- should not exclude contamination caused by fire
Precision Plating v Axa Pacific Insurance: Ruling 2
- insurer’s appeal allowed (no duty to defend)
- third party claims were for CONTAMINATION not for fire (thus excluded from coverage)
Precision Plating v Axa Pacific Insurance: compare to other duty-to-defend cases
compare to: (no duty to defend because no duty to indemnify)
- Sansalone v Wawanesa (sexual abuse)
- Nichols v American Home (fraud)
Precision Plating was different however:
- pollution/contimation was clearly excluded
- insured argued cause of loss was fire not pollution (unsuccessful on appeal)
Amos v ICBC:Facts
- the insured, Amos, was shot by gang in California (while driving rental car)
- claims no-fault Accident Benefits against his BC auto policy
Amos v ICBC:Issues
PURPOSE TEST: was the car being used in a normal way?
CAUSALITY TEST: was there a link (possibly indirect) b/w use of car and shooting?
Amos v ICBC: Rulings 1,2,3 (initial, appeal, Supreme Court of Canada)
Ruling 1:
- BC Supreme Court dismissed driver’s claim
Ruling 2:
- Appeals court upheld the judgment of the BC Supreme Court
Ruling 3:
- Supreme Court of Canada held that appeal SHOULD be allowed (driver is compensated)
- answer is YES to both purpose & causality tests
- plaintiff received no-fault benefit (Accident Benefits) because damage was “ARISING OUT OF” use of car
Amos v ICBC: Applicability to Ontario
- not strictly appicable in Ontario
- in Ontario, the policy wording is damage “CAUSED BY” use of car (versus “ARISING OUT OF” use of car)
Belanger v Sudbury: Facts
20 year-old woman catastrophically injured in head-on collision due to icy road in Sudbury Ontario
Belanger v Sudbury: Issue
- was the city LIABLE for failing to maintain roadway in good repair during a winter storm
- damages of 12 million had already been agreed upon
Belanger v Sudbury:Ruling 1
- city was liable for plaintiff’s injuries
- salting & plowing occurred but were not sufficient given the storm conditions
Belanger v Sudbury: Ruling 2
UPHELD: court of appeal rejected defendant’s “statutory defense” and upheld trial judges decision
- city is expected to ADAPT to conditions, NOT just blindly follow procedures
Belanger v Sudbury: Defense - describe the city’s defense strategy
- the city attempted a “statutory defense”: claimed no liability because:
- could not reasonably be expected to know about the reformed ice
OR - took reasonable steps to maintain roadway
- could not reasonably be expected to know about the reformed ice
Belanger v Sudbury:Comment - standard of care
- this case was essentially about “standard of care”
- appeal judge implied that standard of care was breached
- a qualified city worker should reasonably have forseen the icy conditions and taken steps to mitigate them
Saadati vs Moorhead: Facts
- Mr. Saadati sustained injuries in an auto accident when his vehicle was hit by Mr. Moorhead’s vehicle
- accident occurred on July 5, 2005
(Mr. Saadati is the plaintiff, Mr. Moorhead is the defendant)
Saadati vs Moorhead:Issue
- is Mr. Saadati eligible for non-pecuniary damages for physical and/or mental injury
(see also: Trilogy case involving cap on non-pecuniary damages)
Saadati vs Moorhead:Ruling 1
physical injury claim:
- rejected by trial judge
mental injury claim:
- evidence from plaintiff’s expert psychologist not enough to establish psychological injury
-buttestimony of Mr. Saadati’s family and friendswassufficient proof of psychological injury
- judge awards $100,000 in non-pecuniary damages
Saadati vs Moorhead:Ruling 2
- trial judge’s decision overturned by BC Court of Appeal
- Mr. Saadati had not demonstrated a medically recognized psychiatric or psychological injury
Saadati vs Moorhead:Ruling 3
Supreme Court of Canada: unanimously reversed the BC Court of Appeal (June 2017)
Reason: recovery for mental illness depends on5 criteria:
[1] duty of care (defendant had a duty to drive safely)
[2] breach of duty of care
[3] legal causal relationship
[4] factual causal relationship
[5] establishment that the mental injury is serious & prolonged, and rises above ordinary anxieties & fears
→all criteria were met
(plaintiff doesnothave to prove a specific recognized mental illness)
Concluding Comments
- the law of negligence must affordequal protectionsto victims mental and physical injuries
- this case will have a significant impact on future cases dealing withcompensation for mental injuries
Resurfice Corp v Hanke:Facts
- Hanke badly burned in freak Zamboni accident: sued manufacturer
- Hanke claimed: (gas, water) tanks looked similar & easily confused (dumb-ass)
Resurfice Corp v Hanke: Issues
ISSUE: what was the cause of injury?
STANDARD CAUSATION TEST: ‘but for’ rule
ALTERNATE CAUSATION TEST: “material contribution” (use only when the “but for” rule can’t establish causation)
Resurfice Corp v Hanke:what is the “but for” causation test
“but for” CAUSATION TEST: Would result have occurred BUT FOR act/omission of defendant?
if YES: defendant NOT liable
if NO: defendant liable
Resurfice Corp v Hanke: what is the “material contribution” causation test
- requires that the negligent action MATERIALLY CONTRIBUTED to the risk of harm
- less rigorous than the ‘but for’ test
Resurfice Corp v Hanke: Ruling 1 (initial trial)
TRIAL: defendant wins
REASONING: apply the “but for” test
- would explosion still have occurred BUT FOR making gas/water tanks similar?
- YES, so defendant NOT liable
Resurfice Corp v Hanke:Ruling 2 (appeal)
APPEAL: plaintiff (Hanke) wins
REASONING: apply “material contribution test”
- appeals judge stated trial judge failed (in FC analysis (Foreseeability & Causation). ie Judge was wrong about FC test
- appeals judge then applied “material contribution test”
Resurfice Corp v Hanke: Ruling 3 (Supreme Court)
Supreme Court: defendant wins
REASONING: apply “but for” test NOT “material contribution” test since accident WAS NOT reasonably foreseeable
Resurfice Corp v Hanke:2 requirements before “material contribution” causation test can be applied
REQ 1: the “but for” test CAN’T establish causation
REQ 2: accident MUST be reasonably foreseeable
Morrow v Zhang (AB 2004):Facts
- Alberta introduced legislation to address: rising costs, increase in un/under-insured motorists
- trial challenged constitutionality of $4K cap on minor and/or soft tissue injuries
Morrow v Zhang (AB 2004):Issues
ISSUE 1: cap stigmatizes minor injuries because it treats such victims as malingerers
ISSUE 2: cap is discriminatory because it treats minor injuries differently regarding non-pecuniary damages
Morrow v Zhang (AB 2004):Rulings 1,2
RULING 1: cap is discriminatory & struck down
RULING 2: appeal reverses original ruling (cap is upheld)
* cap is designed to lower premiums for everyone
* capdoes notdiscriminate against minor injuries (cannotbe appealed further)
PIPEDA Report of Findings:Facts
- PIPEDA is Personal Information Protection & Electronic Documents Act
- an ON couple complained of increase in property insurance rates because InsR used their credit score
PIPEDA Report of Findings:Ruling
PRIVACY COMMISSIONER: use of credit score is acceptable
PIPEDA Report of Findings:Ruling - note
- commissioner notes that the standard insurance form is deficient & misleading
- consent must be meaningful (website said credit score MAY be used, but it was ALWAYS used)
- insurer should be explicit regarding its intent
Aviva v Pastore:Facts
- victim sustained severe complications from ankle inury in 2002 auto accident
- sought catastrophic impairment designation
- Aviva rejected cat impairment designation
Aviva v Pastore:define ‘class 4 cat impairment’
- marked impairment significantly impeding useful functioning in at least 1 of: (DSCW)
- Daily living / Social interaction / Concentration / Work activities
Aviva v Pastore:Issue
- for class 4 designation, is it enough to show marked impairment in just 1 functional category?
- for Pastore, this was Daily living
Aviva v Pastore:pre-Ruling (DAC, Arbitration)
DAC:
* concluded there was marked impairment in daily living
* an assessment of class 4 cat impairment was appropriate
Arbitration:
* DAC’s conclusion affirmed by arbitration delegate (class 4 impairment upheld)
Note:
* DAC stands for Designated Assessment Centres
* DACs were used by Ontario auto insurers and claimants
* DACs provided neutral 3rd-party opinions about a claimant’s injuries and benefits
* DACs were in effect from 1994-2006
Aviva v Pastore:Ruling 1 (Divisional Court)
Divisional Court:
- judicial review requested by Aviva reversed prior decision
- judge stated that delegate exceeded jurisdiction
–> NO cat impairment
Aviva v Pastore:Ruling 2 (Appellate Court)
Appellate Court:
- Divisional Court erred in ‘standard of review’
- standard should be ‘reasonableness’ (which delegate applied)
–> class 4 cat impairment reinstated
Aviva v Pastore:Final words
- there is currently a big gap in compensation between (non-cat & cat) impairment
- there should be a provision for something between minor injury and cat impairment
Tomec vs Economical:Facts
Initial Injury:
* the insured (Tomec) was hit by a vehicle as a pedestrian on Sept 12, 2008
* her injuries were serious but not catastrophic
* she was therefore granted 104 weeks of ACB (Attendant Care Benefits) and HK (House Keeping)
* Economical stopped benefits on Sept 12, 2010
Deteriorating Condition:
* Economical reclassified her as CAT (Catastrophically impaired) in May 2015
* CAT impairment removes the time limit for ACB and HK
* but Economicaldenied benefitsbecause the 2-year statutory time limit for making a claim had expired
* Economical argued the clock started on Sept 12, 2010 (orignal date of stoppage of benefits)
Tomec vs Economical:’discoverability principle’
discoverability principle:
* a statutory limitation period can be extended in certain cases
* specifically, where a plaintiff did not have knowledge of and cannot have reasonablydiscoveredan event
for Tomec:
* she didn’t “discover” her CAT impairment until May 2015 (Economical’s official acknowledgment date)
* wasn’t possible for her to apply for extended benefits within 2 years of original stoppage on Sept 12, 2010
Tomec vs Economical:Issues
*does the discoverability principle apply so that the statutory time limit can be extended?
(Is Tomec still entitled to extended benefits based on subsequent CAT classification?)
Tomec vs Economical:Ruling 1
- the LAT (License Appeal Tribunal) and the Ontario Divisional Court concluded discoverabilitydoes not apply
- Tomec did not apply for extended benefits by Sept 12, 2012
- thereforeTomec cannot applyfor (or receive) extended benefits
Tomec vs Economical:Ruling 2
Ruling:
* Ontario Court of Appeal ruled that discoverabilitydidapply to the limitation period
* the orders of LAT and Divisional Court were set aside
Reasoning:
* It would beabsurdto expect Tomec to apply for extended benefits by Sept 12, 2012 because..
..Economical didn’t even classify her as eligible for extended benefits until May 2015
Tomec vs Economical:Concluding Comments
The Court of Appeals further supported their decision because:
* if she had NOT claimed the original benefits then the statutory time limit would have started May 2015 and..
..she would NOT have been denied extended benefits
* but the catastrophic impairment would be the same in each case so the outcome should be the same
purpose of punitive damages (3)
Deterrence | Denunciation | Retribution
which Landmark Legal Cases went to the Supreme Court (6)
(Zamboni case): Resurface Corp v Hanke
–
Somersall v York
Whiten v Pilot
Amos v ICBC
Nichols v American Home
Saadati v Moorhead←shout-out to ck2202!
which Landmark Legal Cases deal with duty to defend (3+1)
PRIMARY insurer:
- Sansalone v Wawanesa
- Nichols v American Home
- Precision Plating v Axa Pacific Insurance
EXCESS insurer:
- Alie v Bertrand Frere construction
which ‘duty-to-defend’ Landmark Legal Case went to the Supreme Court
Nichols v American Home
which Landmark Legal Cases have catastrophic injury as the main issue (2)
Aviva v Pastore
Kusnierz v Economical
does insurer have a duty-to-defend when act is beyond scope of policy?
NO: see (Sansalone v Wawanesa), (Nichols v American Home), (Precision Plating v Axa Pacific Insurance)
