The fact that a plaintiff obtains litigation insurance does not prevent a court from making an order for security for costs.
In Shah v. Loblaw Companies Ltd., 2015 ONSC 5987 (S.C.J.), the plaintiff claimed he slipped and fell on a mat at a grocery store in 2012. At the time of the incident he was a permanent resident of Canada, but his permanent resident card expired in 2013. He returned to India and did not returned to Canada. The defendants brought a motion for security for costs. In response, the plaintiff secured a Legal Protection Certificate and Indemnity Agreement. He opposed the motion for security and argued that the insurance plan was sufficient security for the defendants.
The Court rejected the plaintiff's argument. The policy contained a number of exclusions where the insurance proceeds would not be paid, such as where the plaintiff does not accept his counsel's recommendation to accept an offer to settle, decides to represent himself, fails to attend a defence medical examination, provides materially misleading information and so on. The defendants had no control over the circumstances and if the policy were cancelled, the defendants would have no security in the event of an adverse costs award against the plaintiff.
Justice Lemon comments that other judges have considered the existence of insurance as a factor in determining whether security for costs should be awarded, but that the circumstances of the case and terms of the policy should be considered. It would seem important to obtain production of such a policy in the event that the plaintiff raises such an issue in response to a motion for security for costs.
Rabu, 28 Oktober 2015
Rabu, 21 Oktober 2015
Plaintiffs Who Settle for Less than Tortfeasor's Limits May Not Pursue Underinsured Claims
A claim against an insurer pursuant to the underinsured provisions of the policy has been rejected since the plaintiffs settled against the tortfeasor for less than his limits.
In Kovacevic v. ING Insurance, 2015 ONSC 3415 (S.C.J.), the plaintiffs were injured in 2004 in a motor vehicle accident in Florida. At the time, the plaintiffs were insured by ING; the policy had a $2 million limit and included the OPCF 44R - Family Protection Endorsement. The Florida defendant had a policy of insurance with a $1 million limit. The insurer, Lincoln General, elected to go into a "voluntary solvent run-off" in 2009 which resulted it in ceasing to write new policies but it continued to pay its existing obligations and liabilities. There was no evidence that Lincoln had become insolvent at the date of the settlement or thereafter.
In 2010 the plaintiffs settled their Florida action for $300,000 without ING's knowledge or consent and then sought to recover under their own policy's underinsured driver provisions. ING brought a motion for summary judgment. The plaintiffs argued that settling at less than the policy limits did not disentitle them to recovery under the OPCF 44R. They also argued that the case was unique as the possibility of Lincoln becoming insolvent meant the limits of the policy were unavailable and a settlement for less than the limits was provident.
Justice MacKenzie granted summary judgment and dismissed the claim. The plaintiffs were not entitled to settle the Florida action for less than the limits then pursue an underinsured claim. The claim that Lincoln was not solvent or that the policy limits were not available was not accepted.
In Kovacevic v. ING Insurance, 2015 ONSC 3415 (S.C.J.), the plaintiffs were injured in 2004 in a motor vehicle accident in Florida. At the time, the plaintiffs were insured by ING; the policy had a $2 million limit and included the OPCF 44R - Family Protection Endorsement. The Florida defendant had a policy of insurance with a $1 million limit. The insurer, Lincoln General, elected to go into a "voluntary solvent run-off" in 2009 which resulted it in ceasing to write new policies but it continued to pay its existing obligations and liabilities. There was no evidence that Lincoln had become insolvent at the date of the settlement or thereafter.
In 2010 the plaintiffs settled their Florida action for $300,000 without ING's knowledge or consent and then sought to recover under their own policy's underinsured driver provisions. ING brought a motion for summary judgment. The plaintiffs argued that settling at less than the policy limits did not disentitle them to recovery under the OPCF 44R. They also argued that the case was unique as the possibility of Lincoln becoming insolvent meant the limits of the policy were unavailable and a settlement for less than the limits was provident.
Justice MacKenzie granted summary judgment and dismissed the claim. The plaintiffs were not entitled to settle the Florida action for less than the limits then pursue an underinsured claim. The claim that Lincoln was not solvent or that the policy limits were not available was not accepted.
Rabu, 14 Oktober 2015
Strong Position at Mediation Does Not Result in Increased Costs After Trial
Sections 258.6 and 258.6 of the Insurance Act impose an obligation on insurers to settle claims as expeditiously as possible and to participate in mediation. Failure to do so shall be taken into consideration when a court is awarding costs.
In Ross v. Bacchus, 2015 ONCA 347 (C.A.), the jury awarded the plaintiff $248,000. The trial judge awarded the plaintiff $217,000 plus HST in costs, including an award of $60,000 on the basis that the insurer failed to comply with ss. 258.5 and 258.6.
The action was commenced in 2010 and the defendant offered to settle the claim for $40,000 in 2011, although the offer was revoked in 2012. Three weeks before the trial was scheduled to commence, the plaintiff offered to settle the action for $94,065 plus interest and costs, and requested mediation for the first time. Defence counsel responded the next day with an offer of $30,001 plus interest and costs, and agreed to attend mediation, but advised that his clients were "not interested in settling this case". The mediation took place four days before trial. The trial judge described the insurer's participation in mediation as a "sham" based on counsel's statement.
The Court of Appeal allowed the costs appeal and held that the $60,000 award was not appropriate. Justice Doherty held that a clear statement of the insurer's intent does not mean it has failed to settle expeditiously or participate in a mediation:
In Ross v. Bacchus, 2015 ONCA 347 (C.A.), the jury awarded the plaintiff $248,000. The trial judge awarded the plaintiff $217,000 plus HST in costs, including an award of $60,000 on the basis that the insurer failed to comply with ss. 258.5 and 258.6.
The action was commenced in 2010 and the defendant offered to settle the claim for $40,000 in 2011, although the offer was revoked in 2012. Three weeks before the trial was scheduled to commence, the plaintiff offered to settle the action for $94,065 plus interest and costs, and requested mediation for the first time. Defence counsel responded the next day with an offer of $30,001 plus interest and costs, and agreed to attend mediation, but advised that his clients were "not interested in settling this case". The mediation took place four days before trial. The trial judge described the insurer's participation in mediation as a "sham" based on counsel's statement.
The Court of Appeal allowed the costs appeal and held that the $60,000 award was not appropriate. Justice Doherty held that a clear statement of the insurer's intent does not mean it has failed to settle expeditiously or participate in a mediation:
[46] The costs sanctions in ss. 258.5 and 258.6 can only serve their intended purposes if the facts justify the imposition of those sanctions. An insurer’s statement on the eve of trial that it is not prepared to settle a claim cannot be equated with an insurer’s failure to “attempt to settle the claim as expeditiously as possible.” Nor can an insurer who actually participates in a mediation be declared to have failed to participate simply because the insurer indicated prior to the mediation that it was not prepared to settle the claim. A clear statement of the insurer’s position going into the mediation, even a strong statement, does not preclude meaningful participation in a mediation.Although ss. 258.5 and 258.6 make mediation mandatory, it is important to remember that the insurer is still entitled to take strong positions without being subjected to an additional costs penalty.
Selasa, 13 Oktober 2015
October is Fire Prevention Awareness
October is officially Fire Prevention Awareness. Although Fire Prevention is technically October 4-10, 2015, we believe it should be something you and your family practice year round. As your insurance agent and coming from a family of volunteer fire fighters, this is an issue that is very important to us! Unfortunately, we've seen clients, friends, and family all suffer from home fires, and we want to share some things you can do to prevent a disaster.
Beyond basic fire prevention, like checking electrical cords and not leaving a pot unattended on the stove, there are several important things to do with your children or grandchildren to make sure they're safe
First, create a PLAN. When children know what to expect, they can remain calm, even during an emergency. Help your child know exactly what to do if a fire occurs.
Stress the importance of getting out of the house and to your family meeting spot. Choose an area a safe distance from the house where children should go if making a fire escape. It could be a street light, mailbox, or neighbor's tree.
If you have pets, tell your kids that your pets will find their own way out safely and that they should never go back to rescue the pet on their own.
As a family, go through each room of the house and discuss TWO different ways to get out if a fire occurs. Let children practice opening a latch and unlocking doors too. Remember smoke rises, so teach them how to stay low and exit safely. And show them how to always test the door handle before opening.
Now host a fire drill! Make the practice drills fun and informative. Create sample scenarios and build up your kid's confidence. They'll be better prepared for a fire and you will too! Here is a great tool with games for kids with Sparky the Dog on Fire Prevention.
When it comes to any sort of emergency situation, people are what matter most. Take precautions to protect your loved ones and let your professional insurance agents take care of protecting your home and belongings! Call us for a free quote on your Homeowner's Insurance today! 888-565-2212 or visit us online for a homeowners quote. At the Bryan Insurance Agency we are the top agency in New Windsor and Long Island for home insurance.
Rabu, 07 Oktober 2015
Pre-Judgment Interest in Auto Claims
We previously blogged on Cirillo v. Rizzo, where the Court held that s. 258.3(8.1) of the Insurance Act should be applied retroactively (the section provides that pre-judgment interest should be calculated in accordance with s. 127 of the Courts of Justice Act).
Perhaps unsurprisingly, another judge has come to the opposite conclusion. In El-Khodr v. Lackie, 2015 ONSC 4766 (S.C.J), Justice Toscano Roccomo held that s. 258.3(8.1) is substantive law, therefore it cannot be applied retroactively.
Until there is appellate authority on this issue, it may be that the calculation of PJI in motor vehicle actions is a matter for negotiation in settlement discussions.
Perhaps unsurprisingly, another judge has come to the opposite conclusion. In El-Khodr v. Lackie, 2015 ONSC 4766 (S.C.J), Justice Toscano Roccomo held that s. 258.3(8.1) is substantive law, therefore it cannot be applied retroactively.
Until there is appellate authority on this issue, it may be that the calculation of PJI in motor vehicle actions is a matter for negotiation in settlement discussions.
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