Land.Cases Flashcards
What was the Whiten vs Pilot Insurance Co case about?
Insured’s house was destroyed in a fire.
After some time, the insurer cuts off the rent without notice alleging arson (“that insured deliberately set the house on fire”).
The allegation was wholly discredited at trial as no evidence of arson.
What was the issue with the Whiten vs Pilot Insurance Co case?
Did Pilot Insurance Co use the power imbalance to force insured into a smaller settlement?
What were the rulings of the initial trial, 1st appeal and Supreme Court in the Whiten vs Pilot Insurance Co case?
RULING 1: jury awards 1m punitive
RULING 2: ON appeals court reduces to 100K
RULING 3: Supreme Court restores 1m
Awards of the type of the ‘Whiten vs Pilot Insurance Co’ should consider…?
Consider PROPORTIONALITY along several DIMENSIONS
What are the 6 details-dimensions in the ‘Whiten vs Pilot Insurance Co’ case?
(BVH-DPL)
- Blameworthiness of Insurer
- 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)
What was the Somersall v Scottish & York case about?
- 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
Define limits agreement.
agreement between injured party & tortfeasor where:
• tortfeasor admits liability
• injured party will not sue for more than tortfeasor’s limits
Briefly explain the SEF 44 endorsement.
Endorsement providing coverage to insured when tortfeasor is under-insured
What is the issue in the ‘Somersall v Scottish & York’ case?
Regarding insurer:
Does limits agreement imply plaintiff not legally entitled to further recovery from tortfeasor?
(insurer then effectively loses subrogation rights)
What were the rulings of the initial trial, 1st appeal and Supreme Court in the Somersall v Scottish & York case?
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)
In the ‘Somersall v Scottish & York’ case, what was the reasoning behind the Supreme Court ruling?
At time of accident, SEF 44 was in effect, therefore:
→ subsequent limits agreement did not preclude coverage under SEF 44
What was the Sansalone v Wawanesa case about?
- BC Transit bus drivers sexually abused a teenager
- Wawanesa DENIED defense & coverage: policy terms exclude bodily injury caused intentionally
What is the issue in the ‘Sansalone v Wawanesa’ case?
How does duty to defend relate to duty to indemnify
- Does insurer have a duty to defend where indemnification is beyond scope of policy
What were the rulings of the initial trial and 1st appeal in the Sansalone v Wawanesa case?
RULING 1: there IS duty to defend because bus drivers may have mistakenly or negligently believed consent had been given (insurer appeals).
RULING 2: appeals court rules there is no duty to defend (2-1 split decision)
What was the majority reasoning in the ‘Sansalone v Wawanesa’ case?
IF act is intentional AND injury is natural and probable THEN there is intention to cause injury, therefore excluded by policy.
What was the minority reasoning in the ‘Sansalone v Wawanesa’ case?
Act WAS intentional BUT injury was not
- defendant had invalid belief of consent
- there IS a duty to defend but not indemnify
What was the Nichols v American Home Assurance case about?
- a solicitor was accused of fraud but found innocent
- sought defence costs from professional liability insurer
- Insurer denied claim
What is the issue in the ‘Nichols v American Home Assurance’ case?
How does duty to defend relate to duty to indemnify:
Does insurer have a duty to defend where indemnification is beyond scope of policy
What were the rulings of the initial trial, 1st appeal and Supreme Court in the Nichols v American House Assurance case?
RULING 1: Insurer must defend
RULING 2: ON appeals court dismissed appeal
- duty to indemnify versus duty to defend different
- must pay defence since defendant was found innocent
RULING 3: 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
What was the Amos v ICBC case about?
- the insured, Amos, was shot by gang in California while driving rental car
- claims no-fault Accident Benefits against his BC auto policy
What are the issues (2) in the ‘Amos v ICBC’ case?
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?
What were the rulings of the initial trial, 1st appeal and Supreme Court in the Amos v ICBC case?
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
Discuss the applicability of the ‘Amos v ICBC’ case to automobile policies in Ontario.
Not necessary binding.
Ontario policies have the wording that policyholder are entitled to no‐fault benefits for injuries “caused by” the ownership, use, or operation of a vehicle. BC has the wording “arising out of” use of car.
What was the Alie v Bertrand Frere Construction case about?
Defective concrete requires replacement of basements of 140 houses in Ottawa (built between 1986 and 1988)
What were the issues (2) in the ‘Alie v Bertrand Frere Construction’ case?
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?