Land.Cases Flashcards
What was the Whiten vs Pilot Insurance Co case about?
- House burns down.
- Insurer pays for shelter then ceases payments claiming
arson without evidence
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?
bad faith
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 T/A/SC: Insurer / Insurer / Insured
Ruling SC: Yes to both purpose & causality tests, and damage was “arising out of” use of car
Purpose Test: Was the car being used in a normal way?Causality Test: Was there a link (possibly indirect) between use of car and shooting?
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?
What was the ruling of the initial trial in the Alie v Bertrand Frere Construction case?
INDEMNITY TRIGGER: Continuous Trigger
- Coverage is triggered from the first exposure to the time the damage becomes manifest
- assume that damages are evenly spread over all years
DEFENCE TRIGGER:
- excess/umbrella policies have duty to defend
- ..they follow the terms of the underlying policy AND do not specifically exclude duty to defend
What was the Resurfice v Hanke case about?
- Hanke badly burned in freak Zamboni accident: sued manufacturer
- Hanke claimed: gas and water tanks looked similar & easily confused
What was the issue in the ‘Resurfice Corp v Hanke’ case?
1 - What was the cause of injury? – design negligence?
2 - causal link between design flaw and Hanke’s injuries?
Briefly describe the ‘but for’ causation test.
“but for” CAUSATION TEST: Would accident have occurred but for the defendant’s negligence?
if YES: defendant NOT liable
if NO: defendant liable
Fr: l’accident aurait-il eu lieu sans la négligence du défendeur ?
Briefly describe the ‘material contribution’ causation test.
- requires that the negligent action MATERIALLY CONTRIBUTED to the risk of harm
- less rigorous than the ‘but for’ test
What were the rulings of the initial trial, 1st appeal and Supreme Court in the Resurfice Corp v Hanke case?
TRIAL: But-for test: **Insurer wins**
Apply the “but for” test: Would explosion still have occurred BUT FOR making gas/water tanks similar? -> YES, so defendant NOT liable
APPEAL: Material Contribution Test: plaintiff (Hanke) wins
Apply “material contribution test”:
-appeals judge stated trial judge failed in FC analysis (Foreseeability & Causation)
-appeals judge then applied “material contribution test”
Supreme Court: defendant winsApply "but for" test NOT “material contribution” test since accident WAS NOT reasonably foreseeable
Briefly describe the 2 requirements for the application of the “material contribution” causation test to be applicable.
- Plaintiff cannot prove negligence of defendant using the “but for” rule test because of factors outside of plaintiff’s control
- The defendant may have exposed claimant to unreasonable risk with his conduct/negligence and the plaintiff suffered a loss
What was the Morrow v Zhang (AB 2004) case about?
- 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
What was the issues (2) in the ‘Morrow v Zhang (AB 2004)’ case?
- Cap stigmatizes minor injuries because it treats such victims as malingerers
- Cap is discriminatory because it treats minor injuries differently regarding non-pecuniary damages
Does the 4k cap discriminate against people with soft tissue injuries?
What were the rulings of the initial trial and 1st appeal in the Morrow v Zhang (AB 2004) case?
RULING 1-Trial : cap is discriminatory & struck down
RULING 2 - Appeal: appeal reverses original ruling (cap is upheld)
* cap is designed to lower premiums for everyone
* cap does not discriminate against minor injuries (cannot be appealed further)
What was the PIPEDA report of findings about?
- PIPEDA is Personal Information Protection & Electronic Documents Act
- an ON couple complained of increase in property insurance rates because Insurer used their credit score
What was the ruling of the PIPEDA case?
PRIVACY COMMISSIONER: use of credit score is acceptable
- 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
What was the Aviva v Pastore case about?
- Pastore sustained complications from ankle injury in 2002 auto accident.
- He sought catastrophic impairment designation (Daily Living)
- Aviva rejected cat impairment designation.
Define Class 4 cat impairment.
- marked impairment significantly impeding useful functioning in at least 1 of: (DSCW)
-
Daily living /Social interaction /Concentration /Work activities
What was the issue in the ‘Aviva v Pastore’ case?
- for class 4 designation, is it enough to show marked impairment in just 1 functional category? for Pastore, this was Daily living
- Physical and mental/psychiatric injuries can be combined to determine whether the catastrophic injury criteria are satisfied.
What were the rulings of the pre-trial, initial trial and 1st appeal in the Aviva v Pastore case?
Divisional Court:
- judicial review requested by Aviva reversed prior decision
- judge stated that delegate exceeded jurisdiction
–> NO cat impairment
Appellate Court:
- Divisional Court erred in ‘standard of review’
- standard should be ‘reasonableness’ (which delegate applied)
–> class 4 cat impairment reinstated
There is currently a big gap in compensation between (non-cat & cat) impairment, what should we done?
There should be a provision for something between minor injury and cat impairment.
What was the Kusnierz v Economical case about?
- plaintiff had leg amputated following auto accident (as passenger)
- sought classification as catastrophically impaired
What was the issue in the ‘kusnierz v Economical case?
Can physical impairment be combined with mental impairment to reach 55% threshold for SABS cat impairment.
What were the initial trial and 1st appeal rulings in the ‘kusnierz v Economical’ case?
TRIAL: NO cat impairment
- SABS does not explicity state that physical & mental impairment can be summed
- SABS = Statutory Accident Benefits Schedule
APPEAL: allowed cat impairment
- combining physical & mental %’s seemed a more reasonable & modern interpretation
- more would qualify for cat impairment but still rare
–> NO material impact on AA (Availability / Affordability) of insurance
What does SABS stand for?
Statutory Accident Benefits Schedule
What was the Belanger v Sudbury case about?
20 year-old woman catastrophically injured in head-on collision due to icy road in Sudbury Ontario
What was the issue in the ‘Belanger v Sudbury’ case?
- Did the municipality
breach its duty to maintain the roadin a reasonable state of repair? - Is the municipality
liable for the damagesresulting from the accident?
What were the initial trial and 1st appeal rulings in the ‘Belanger v Sudbury’ case?
Ruling T: City was liable for plaintiff’s injuries. Salting & plowing occurred but insufficient given the storm conditions.
Ruling A: Rejected defendant’s “statutory defense” and upheld trial judge's decision. City is expected to adapt to conditions, not just blindly follow procedures.
**Statutory defense: No liability because could not reasonably be expected to know about the reformed ice.
What was the Precision Plating v Axa Pacific Insurance case about?
Insured had a fire on premises causing chemicals to overflow and contaminate neighboring property
What was the issue in the ‘Precision Plating v AXA Pacific Insurance’ case?
Does insurer have a duty to defend?
- pollution/contamination is EXCLUDED by policy
- but insured argued that cause of loss was fire & therefore covered
What were the initial trial and 1st appeal rulings in the ‘Precision Plating v AXA Pacific Insurance’ case?
Trial:
Chambers judge held for insured (insurer must defend)
- policy terms were ambiguous
- should not exclude contamination caused by fire
Appeal:
Insurer’s appeal allowed no duty to defend
Third party claims were for CONTAMINATION not for fire (thus excluded from coverage)
Compare the ‘Precision Plating v AXA Pacific Insurance’ case to other duty-to-defend cases.
Compare to: no duty to defend because no duty to indemnify
1. Sansalone v Wawanesa (sexual abuse)
2. Nichols v American Home (fraud)
Precision Plating was different however:
- pollution/contamination was clearly excluded
- insured argued cause of loss was fire not pollution (unsuccessful on appeal)
What was the Saadati v Moorhead case about?
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
What is the issue in the ‘Saadati v Moorhead’ case?
Is Mr. Saadati eligible for non-pecuniary damages for physical and/or mental injury based on witness testimony alone??
What were the initial trial, 1st appeal and supreme court rulings in the ‘Saadati v Moorhead’ case?
Trial
- Physical injury claim rejected by trial judge
- Mental injury claim: evidence from plaintiff’s expert psychologist not enough to establish psychological injury but testimony of Mr. Saadati's family and friends was sufficient proof of psychological injury
- judge awards $100,000 in non-pecuniary damages
Appeal:
Trial judge’s decision overturned by BC Court of Appeal
- Mr. Saadati had not demonstrated a medically recognized psychiatric or psychological injury
Supreme Court of Canada:
Unanimously reversed the BC Court of Appeal (June 2017)
Reason: recovery for mental illness depends on 5 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 does not have to prove a specific recognized mental illness)
What will be the impact of the ‘Saadati v Moorhead’ case on future similar cases?
The law of negligence must afford equal protections to victims mental and physical injuries.
This case will have a significant impact on future cases dealing with compensation for mental injuries.
What was the Tomec v Economical case about?
- insured (Tomec) was hit by a vehicle as a pedestrian
- injuries were serious but not catastrophic
- granted 104 weeks of ACB (Attendant Care Benefits) and HK (House Keeping)
- Economical stopped benefits and reclassified Her as CAT.
* CAT impairment removes the limits for original benefits, but Eco defied claim
What is the issue in the ‘Tomec v Economical’ case?
- Does the
discoverabilityprinciple apply so that the statutory time limit can be extended? - Is Tomec still entitled to extended benefits based on subsequent CAT classification?
What were the Trial, 1st Appeal rulings in the ‘Tomec v Economical’ case?
-
Trial:
Discoverability does not apply. Tomec did not apply for extended benefits by Sept 12, 2012. therefore Tomec cannot apply for (or receive) extended benefits -
Appeal:
Discoverability did applyto the limitation period. It would be absurd to 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
Identify the 3 purposes of punitive damages. (DDR)
- Deterrence
- Denunciation
- Retribution
Which Landmark Legal Cases went to the Supreme Court (7)?
- Resurface Corp v Hanke
- Somersall v York
- Whiten v Pilot
- Amos v ICBC
- Nichols v American Home
- (KP) Pacific v Guardian
- Saadati v Moorhead
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 (3)?
Aviva v Pastore
Kusnierz v Economical
Tomec 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)
