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6_S24 > Land.Cases > Flashcards

Land.Cases Flashcards

1
Q

What was the Whiten vs Pilot Insurance Co case about?

A

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.

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2
Q

What was the issue with the Whiten vs Pilot Insurance Co case?

A

Did Pilot Insurance Co use the power imbalance to force insured into a smaller settlement?

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3
Q

What were the rulings of the initial trial, 1st appeal and Supreme Court in the Whiten vs Pilot Insurance Co case?

A

RULING 1: jury awards 1m punitive
RULING 2: ON appeals court reduces to 100K
RULING 3: Supreme Court restores 1m

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4
Q

Awards of the type of the ‘Whiten vs Pilot Insurance Co’ should consider…?

A

Consider PROPORTIONALITY along several DIMENSIONS

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5
Q

What are the 6 details-dimensions in the ‘Whiten vs Pilot Insurance Co’ case?
(BVH-DPL)

A
  1. Blameworthiness of Insurer
  2. Vulnerability of victim
  3. Harm to victim
  4. Deterrence to insurer
  5. consider other Penalties insurer may have incurred
  6. punitive award should not been seen by the insurer as a “License” (no financial gain for insurer)
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6
Q

What was the Somersall v Scottish & York case about?

A
  • 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
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7
Q

Define limits agreement.

A

agreement between injured party & tortfeasor where:
• tortfeasor admits liability
• injured party will not sue for more than tortfeasor’s limits

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8
Q

Briefly explain the SEF 44 endorsement.

A

Endorsement providing coverage to insured when tortfeasor is under-insured

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9
Q

What is the issue in the ‘Somersall v Scottish & York’ case?

A

Regarding insurer:
Does limits agreement imply plaintiff not legally entitled to further recovery from tortfeasor?
(insurer then effectively loses subrogation rights)

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10
Q

What were the rulings of the initial trial, 1st appeal and Supreme Court in the Somersall v Scottish & York case?

A

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)

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11
Q

In the ‘Somersall v Scottish & York’ case, what was the reasoning behind the Supreme Court ruling?

A

At time of accident, SEF 44 was in effect, therefore:
→ subsequent limits agreement did not preclude coverage under SEF 44

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12
Q

What was the Sansalone v Wawanesa case about?

A
  • BC Transit bus drivers sexually abused a teenager
  • Wawanesa DENIED defense & coverage: policy terms exclude bodily injury caused intentionally
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13
Q

What is the issue in the ‘Sansalone v Wawanesa’ case?

A

How does duty to defend relate to duty to indemnify
- Does insurer have a duty to defend where indemnification is beyond scope of policy

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14
Q

What were the rulings of the initial trial and 1st appeal in the Sansalone v Wawanesa case?

A

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)

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15
Q

What was the majority reasoning in the ‘Sansalone v Wawanesa’ case?

A

IF act is intentional AND injury is natural and probable THEN there is intention to cause injury, therefore excluded by policy.

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16
Q

What was the minority reasoning in the ‘Sansalone v Wawanesa’ case?

A

Act WAS intentional BUT injury was not
- defendant had invalid belief of consent
- there IS a duty to defend but not indemnify

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17
Q

What was the Nichols v American Home Assurance case about?

A
  • a solicitor was accused of fraud but found innocent
  • sought defence costs from professional liability insurer
  • Insurer denied claim
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18
Q

What is the issue in the ‘Nichols v American Home Assurance’ case?

A

How does duty to defend relate to duty to indemnify:
Does insurer have a duty to defend where indemnification is beyond scope of policy

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19
Q

What were the rulings of the initial trial, 1st appeal and Supreme Court in the Nichols v American House Assurance case?

A

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

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20
Q

What was the Amos v ICBC case about?

A
  • the insured, Amos, was shot by gang in California while driving rental car
  • claims no-fault Accident Benefits against his BC auto policy
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21
Q

What are the issues (2) in the ‘Amos v ICBC’ case?

A

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?

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22
Q

What were the rulings of the initial trial, 1st appeal and Supreme Court in the Amos v ICBC case?

A

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

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23
Q

Discuss the applicability of the ‘Amos v ICBC’ case to automobile policies in Ontario.

A

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.

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24
Q

What was the Alie v Bertrand Frere Construction case about?

A

Defective concrete requires replacement of basements of 140 houses in Ottawa (built between 1986 and 1988)

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25
Q

What were the issues (2) in the ‘Alie v Bertrand Frere Construction’ case?

A

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?

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26
Q

What was the ruling of the initial trial in the Alie v Bertrand Frere Construction case?

A

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
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

27
Q

What was the Resurfice v Hanke case about?

A
  • Hanke badly burned in freak Zamboni accident: sued manufacturer
  • Hanke claimed: gas and water tanks looked similar & easily confused
28
Q

What was the issue in the ‘Resurfice Corp v Hanke’ case?

A

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)

29
Q

Briefly describe the ‘but for’ causation test.

A

“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 ?

30
Q

Briefly describe the ‘material contribution’ causation test.

A
  • requires that the negligent action MATERIALLY CONTRIBUTED to the risk of harm
  • less rigorous than the ‘but for’ test
31
Q

What were the rulings of the initial trial, 1st appeal and Supreme Court in the Resurfice Corp v Hanke case?

A

TRIAL: defendant wins
Apply the “but for” test: Would explosion still have occurred BUT FOR making gas/water tanks similar? -> YES, so defendant NOT liable

APPEAL: 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 wins
Apply “but for” test NOT “material contribution” test since accident WAS NOT reasonably foreseeable

32
Q

Briefly describe the 2 requirements for the application of the “material contribution” causation test to be applicable.

A
  1. Plaintiff cannot prove negligence of defendant using the “but for” rule test because of factors outside of plaintiff’s control
  2. The defendant may have exposed claimant to unreasonable risk with his conduct/negligence and the plaintiff suffered a loss
33
Q

What was the Morrow v Zhang (AB 2004) case about?

A
  • 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
34
Q

What was the issues (2) in the ‘Morrow v Zhang (AB 2004)’ case?

A
  1. Cap stigmatizes minor injuries because it treats such victims as malingerers
  2. Cap is discriminatory because it treats minor injuries differently regarding non-pecuniary damages
35
Q

What were the rulings of the initial trial and 1st appeal in the Morrow v Zhang (AB 2004) case?

A

RULING 1: cap is discriminatory & struck down
RULING 2: 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)

36
Q

What was the PIPEDA report of findings about?

A
  • PIPEDA is Personal Information Protection & Electronic Documents Act
  • an ON couple complained of increase in property insurance rates because Insurer used their credit score
37
Q

What was the ruling of the PIPEDA case?

A

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
38
Q

What was the Aviva v Pastore case about?

A
  • Pastore sustained complications from ankle injury in 2002 auto accident.
  • He sought catastrophic impairment designation (Daily Living)
  • Aviva rejected cat impairment designation.
39
Q

Define Class 4 cat impairment.

A
  • marked impairment significantly impeding useful functioning in at least 1 of: (DSCW)
  • Daily living / Social interaction / Concentration / Work activities
40
Q

What was the issue in the ‘Aviva v Pastore’ case?

A
  • for class 4 designation, is it enough to show marked impairment in just 1 functional category?
  • for Pastore, this was Daily living
  • Another issue was whether it was necessary to remove from consideration all physical sources of pain in conducting the assessment.
41
Q

What were the rulings of the pre-trial, initial trial and 1st appeal in the Aviva v Pastore case?

A

Pre-ruling:
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)

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

42
Q

There is currently a big gap in compensation between (non-cat & cat) impairment, what should we done?

A

There should be a provision for something between minor injury and cat impairment.

43
Q

What was the Kusnierz v Economical case about?

A
  • plaintiff had leg amputated following auto accident (as passenger)
  • sought classification as catastrophically impaired
44
Q

What was the issue in the ‘kusnierz v Economical case?

A

Can physical impairment of 50% be combined with mental impairment % to reach 55% threshold for SABS cat impairment.

45
Q

What were the initial trial and 1st appeal rulings in the ‘kusnierz v Economical’ case?

A

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

46
Q

What does SABS stand for?

A

Statutory Accident Benefits Schedule

47
Q

What was the Belanger v Sudbury case about?

A

20 year-old woman catastrophically injured in head-on collision due to icy road in Sudbury Ontario

48
Q

What was the issue in the ‘Belanger v Sudbury’ case?

A

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

49
Q

What were the initial trial and 1st appeal rulings in the ‘Belanger v Sudbury’ case?

A

Trial:
City was liable for plaintiff’s injuries
Salting & plowing occurred but were not sufficient given the storm conditions

Appeal:
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

50
Q

What was the Precision Plating v Axa Pacific Insurance case about?

A

Insured had a fire on premises causing chemicals to overflow and contaminate neighboring property

51
Q

What was the issue in the ‘Precision Plating v AXA Pacific Insurance’ case?

A

Does insurer have a duty to defend?
- pollution/contamination is EXCLUDED by policy
- but insured argued that cause of loss was fire & therefore covered

52
Q

What were the initial trial and 1st appeal rulings in the ‘Precision Plating v AXA Pacific Insurance’ case?

A

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)

53
Q

Compare the ‘Precision Plating v AXA Pacific Insurance’ case to other duty-to-defend cases.

A

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)

54
Q

What was the Saadati v Moorhead case about?

A

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

55
Q

What is the issue in the ‘Saadati v Moorhead’ case?

A

Is Mr. Saadati eligible for non-pecuniary damages for physical and/or mental injury?

56
Q

What were the initial trial, 1st appeal and supreme court rulings in the ‘Saadati v Moorhead’ case?

A

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)

57
Q

What will be the impact of the ‘Saadati v Moorhead’ case on future similar cases?

A

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.

58
Q

Identify the 3 purposes of punitive damages. (DDR)

A
  1. Deterrence
  2. Denunciation
  3. Retribution
59
Q

Which Landmark Legal Cases went to the Supreme Court (7)?

A
  1. Resurface Corp v Hanke
  2. Somersall v York
  3. Whiten v Pilot
  4. Amos v ICBC
  5. Nichols v American Home
  6. (KP) Pacific v Guardian
  7. Saadati v Moorhead
60
Q

Which Landmark Legal Cases deal with duty to defend (3+1)?

A

PRIMARY insurer:
- Sansalone v Wawanesa
- Nichols v American Home
- Precision Plating v Axa Pacific Insurance
EXCESS insurer:
- Alie v Bertrand Frere construction

61
Q

Which ‘duty-to-defend’ Landmark Legal Case went to the Supreme Court?

A

Nichols v American Home

62
Q

Which Landmark Legal Cases have catastrophic injury as the main issue (2)?

A

Aviva v Pastore
Kusnierz v Economical

63
Q

Does insurer have a duty-to-defend when act is beyond scope of policy?

A

NO: see (Sansalone v Wawanesa), (Nichols v American Home), (Precision Plating v Axa Pacific Insurance)

6_S24 (56 decks)

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