Study 8 - Claims Settlement Flashcards
Define deponent
witness making sworn or affirmed testimony out of court as part of the discovery process
How long does the insurer have to pay the claim once the proof of loss is submitted?
60 days
How does ACV vs replacement cost differ in Quebec?
Civil coder 2490, 2491 & 2493
Insurer pays ACV unless specifically stated otherwise in the policy
Define aggregate deductible
Deductible that applies to all claims for the year
Once is made, insured does not pay any further deductibles
Define franchise deductible
Insured pays all claims up to the amount set in franchise
If any loss exceeds that amount, insurer pays full amount, including the franchise amount
What happened in Lieber v. Canadian Group?
Insured admitted claim was inflated and the entire claim was denied
What should an adjuster consider when a contractor lists additional costs?
- 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 damage? Was there hidden damage? Should hidden damages have been anticipated?
- Did some items not respond to repairs or cleaning, with the result that replacements were required?
How does the limit of liability rule determine contribution?
Limits are determined as though no other insurance existed and applies what is the least of:
- amount of insurance
- amount of loss
- amount payable after applying any policy limitation
In Ontario, how many days notice do municipalities receive for non-repair?
10
Define release
oral or written discharge from 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 discoverability rule
rule in tort law stated in provincial legislation that specifies that a limitation period begins when material facts upon which an action is based had been discovered by the plaintiff through due diligence
How long does an insured have to bring action against the insurer?
It indicates in the policy wordings
Generally one year, some jurisdictions are up to 3 from date of loss
Quebec is 3 and is from 60 days after proof of loss received
Define pleadings
formal written allegations or denials by parties in a lawsuit to a tribunal and the remedies or dispositions they seek
Define statement of claim
written statement by a plaintiff detailing facts that support the claim against the defendant and relief sought
Define notice of action
a summons or notice to a party that informs them of involvement in lawsuit, filed at court and served to the party before formal statement of claim is issued
Define statement of defence
in a high court action, please in reply to statement of claim. responds with admissions or denials to the allegations and sets out additional facts, even a counter claim
Define cross claim
demand made against another party on same side of lawsuit, plaintiff vs plaintiff or defendant vs defendant
Where may plaintiff file notice of action first if the limitation period is nearly over?
Ontario & New Brunswick
What is a notice of intent to defend?
It grants an extension to deadline for filing a statement of defence.
Used in Ontario, New Brunswick & PEI.
What is the typical litigation process?
Notice of Action or Write of Summons | Statement of Claim | Affidavit of Service -> (1) OR (2) | (1) Notice of Default -> Default Judgment | (2) Notice of Intent to Defend | Statement of Defence | Appearance | Counter Claim OR Cross-Claim | Consent Judgment
What is the right of disovery?
party to a civil court proceeding is enabled before the determination of any matter of consequence in those proceedings:
a) all his knowledge, remembrance, info and belief concerning the manner
AND
b) production of all documents in possession or power relating to such matter
When may a party appeal a court decision?
Lawyer shows an error in law or an error in a combination of law and fact
What are the two court systems?
Provincial & territorial court system
Federal court system
What are the main court levels from lowest to highest in BC?
Provincial Court
Supreme Court
Court of Appeal
What are the main court levels from lowest to highest in Alberta?
Provincial Court
Court of Queen’s Branch
Court of Appeal
What are the main court levels from lowest to highest in Saskatchewan?
Provincial Court
Court of Queen’s Bench
Court of Appeal
What are the main court levels from lowest to highest in Manitoba?
Provincial Court
Court of Queen’s Bench
Court of Appeal
What are the main court levels from lowest to highest in Ontario?
Court of Justice
Superior Court of Justice
Court of Appeal
What are the main court levels from lowest to highest in Quebec?
Court of Quebec
Superior Court of Quebec
Court of Appeal
What are the main court levels from lowest to highest in New Brunswick?
Court of Queen’s Branch
Court of Appeal
What are the main court levels from lowest to highest in Nova Scotia?
Small Claims Court
Provincial Court
Supreme Court
Court of Appeal
What are the main court levels from lowest to highest in PEI?
Provincial Court
Supreme Court
Trial Division
Supreme Court, Appeal Division
What are the main court levels from lowest to highest in Newfoundland?
Provincial Court
Supreme Court, Trial Division
Supreme Court, Court of Appeal
What are the main court levels from lowest to highest in NWT?
Justice of the Peace Court Youth Justice Court Civil Claims Court Wellness Court Domestic Violence Treatment Options Court Territorial Court of the NWT Supreme Court of the NWT Court of Appeal for the NWT
What are the main court levels from lowest to highest in Nunavut?
Court Services Division of the Government of Nunavut Justice of the Peace Court Youth Justice Court Court of Justice Court of Appeal
What are the main court levels from lowest to highest in Yukon?
Small Claims Court
Territorial Court
Supreme Court
Court of Appeal
What is the statutory requirement when submitting a claim against the Crown?
In claims against the Crown, a municipality, or other public authority, statutes require that notice of the claim must be made to the right parties within a set number of days.
What are some typical contents that do not qualify for replacement cost coverage?
- Antiques
- Fine arts
- Paintings
- Statuary
- Memorabilia
- Souvenirs
- Collectors’ items
Explain aggregate deductibles and include any exceptions.
- Aggregate deductibles are common for larger commercial risks.
- An aggregate deductible is usually of a substantial amount.
- It is a deductible applied as a whole to all the claims that occur during the policy year.
- Once this aggregate deductible is met, the rest of the insured claims are paid without a deductible.
- There can be exceptions. In some cases, the balance of insured claims may be subject to the deductibles outlined in individual policies.
Explain salvage
- Refers to the portion of goods or property that has been saved or remains after a loss.
- The remaining value of property after severe damage by fire or other peril; in this case, after water damage to the contents of the trailer.
- The damaged items that have been replaced for Ida may still have some usefulness and residual value.
- The overall loss is reduced by the salvage value.
- Undamaged property may be quite saleable, and some property may be only partially damaged, thus repairable and then saleable.
What are the duties and responsibilities of salvageable items?
- Common law statutory conditions provide that the insurer contributes proportionately, according to the respective interests of the parties, toward any reasonable and proper expenses in connection with protecting and moving such property:
- The insurer should send a representative sample for cleaning to assess whether the items can be saved.
- Economical and appropriate storage facilities may be required.
- Costs to move such property to another location to prevent further damage are recoverable.
- The general conditions of a Quebec property policy provide that the insurer will pay for such expenses to protect property.
What are the rights and responsibilities of an insured for salvage?
- The insurer has the right to view and appraise damages.
- The insurer does not have the right to control or possess the property.
- Ida cannot abandon any salvaged property to the insurer without the insurer’s consent.
- An expert should evaluate the potential recovery from an item.
- Ownership of the property must be established and control of property discussed with the insured and with loss payees.
