Plaintiff’s Four Accidents Require Analysis of Causation, Consent, Threshold, Protected Defendant and Damages

Posted on January 26, 2006 by Stephen Cavanagh

The recent judgment of Superior Court Justice Ruth Mesbur in Moore v. Wienecke reads more like a law school problem than a real-life set of facts.

The plaintiff was involved in motor vehicle accidents in 1998 and 2002, which were the claims that were tried by Justice Mesbur. But before that, the plaintiff had also been injured in a 1986 MVA and had then suffered a serious brain injury in a 1991 accident. (This same plaintiff was again involved in a car accident in 2000, had twice fallen down stairs and had fallen off a ladder, all between the 1998 and 2002 accidents. He was also convicted of impaired driving in 2002 and prohibited from driving for two years. Some might view this as a therapeutic measure for such an accident-prone plaintiff!) Continue reading →

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C.A. Clarifies Duty to Defend

Posted on January 25, 2006 by Stephen Cavanagh

This month, the Court of Appeal has released two decisions dealing with an insurer’s “duty to defend”.Kohanski v. St. Paul

The first is Kohanski v. St. Paul Guarantee Insurance Company. The issue in the case was whether a duty to defend arose under a directors’ and officers’ liability, which contained what is known as an “insured v. insured” exclusion. This exclusion applies when one insured sues another. Continue reading →

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C.A. Says Trial Judge Entitled to Prefer One Medical Opinion Over Others

Posted on January 25, 2006 by Stephen Cavanagh

We’ve gotten a bit behind over the holiday season, but over the next few days, we’ll get caught up on some interesting new decisions that have been handed down this month. We’re also in the process of re-designing our Updates; more about that soon.To begin with though, the Court of Appeal today dismissed a defendant’s appeal from a finding by a trial judge, that the plaintiff had suffered a brain injury. In Brown v. Camionnage Intra-Quebec Inc., the defence argued that in concluding that the plaintiff did have a brain injury, the trial judge had accepted the evidence of one doctor in preference to that of most, if not all, of the other doctors who testified. The Court of Appeal noted that many of the other doctors had more relevant sub-specialities. But it ruled that the trial judge was entitled to decide how much weight to give to the medical evidence and that he had been within his discretion in deciding to accept the one opinion in preference to the many.

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Important Decision on Allocation of Defence Costs Between Covered and Non-covered Claims

Posted on December 15, 2005 by Stephen Cavanagh

Justice Denis Power of the Ontario Superior Court has released a significant ruling on the issue of allocation of defence costs. The case is Hanis v. The University of Western Ontario et al.; Guardian Insurance et al., third parties.

As counsel for the insurer in this case noted, “allocation is a topic ‘that is in its relative infancy in law’.” For this reason, Justice Power’s decision is an important contribution to the relatively sparse jurisprudence on the subject. Continue reading →

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Plaintiff Back to Work, Engaged, But Still Meets Threshold

Posted on December 8, 2005 by Stephen Cavanagh

After a series of recent Bill 59 “threshold” decisions that have favoured insurers (most recently Page v. Primeau, which was the subject of a previous Update), a Superior Court judge has decided a threshold motion in favour of the plaintiff. In Sasso v. Copeland, the plaintiff was a young woman who had been diagnosed with chronic pain and adjustment disorder. Her complaints included insomnia, irritability, headaches and shoulder pain.

The injuries were conceded by the defence to be “permanent” and “important”. The only issue was whether the plaintiff also met the third element of the Insurance Act threshold: seriousness. Continue reading →

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Policy Limits Provisionally Pro-rated Before All Claims Finalized

Posted on December 8, 2005 by Stephen Cavanagh

A Superior Court decision released this afternoon deals with a recurring problem in the field of liability insurance: where the total claims greatly exceed the policy limits, can one claimant settle and obtain payment of the entire amount of his or her damages, before the competing claims have yet been assessed?

The case is Behrns v. Burleigh et al. and was decided by Justice David Corbett. There were two competing groups of claimants, both of whom had sued after a serious motor vehicle accident. One plaintiff, Randall Middleton, was only three months old at the time and suffered a serious head injury. His mother was killed. The damages in this case have not yet been assessed, largely because it has been difficult to determine what the long-term outlook will be for young Randall. However, his counsel led evidence (albeit from a lawyer in the same firm), that that claim will eventually be assessed at betweeen $1 million and $3 million. Continue reading →

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C.A. Allows Extrinsic Evidence in Finding Duty to Defend Snowmobile Claim

Posted on December 6, 2005 by Stephen Cavanagh

In McLean v. Jorgenson, released this afternoon, the Ontario Court of Appeal addressed the often-litigated issue of an insurer’s duty to defend. Its decision contained some interesting elements that are likely to have significance in future cases, particularly those involving interpretation of the phrase, “ownership, use or operation of a motor vehicle”. Continue reading →

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Slip and Fall Plaintiff 1/3 at Fault for Not Watching Where She Was Going

Posted on December 5, 2005 by Stephen Cavanagh

An Ontario Superior Court judge has found a plaintiff one third contributorily negligent for failing to observe the curb on which she tripped and fell, even though it was in plain sight. In Henhawk v. Brantford (City), Justice David S. Crane explained the basis on which he had faulted the plaintiff: Continue reading →

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C.A. Says Coverage for Lessor Continues on Cancellation by Lessee, Unless Insurer Gives Lessor Fifteen Days’ Notice

Posted on December 2, 2005 by Stephen Cavanagh

In Transportaction Lease Systems Inc. v. Guarantee Co. of North America, decided earlier this week, the Ontario Court of Appeal held that cancellation of auto insurance by a lessee was ineffective to terminate the coverage of the lessor. Accordingly, when the insured automobile was damaged beyond repair while being driven by the lessee, a month after cancellation of coverage, the lessor was still entitled to recover from the insurer. Its coverage, according to the Court of Appeal, was still in force. Continue reading →

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Plaintiff Permitted to Increase Claim to $4 M Over Policy Limits

Posted on November 30, 2005 by Stephen Cavanagh

In Bach v. McKellar, released this afternoon, Master Robert Beaudoin dealt with a situation that arises frequently in insurance litigation. The claim arose out of a motor vehicle accident. The original pleading, issued within the two-year limitation period, claimed damages of $1.4 million. This was comfortably within the defendant’s liability insurance coverage limits, which were $2 million. Sometime after the limitation period had expired, the plaintiff moved for leave to amend her claim to $6.1 million. Evidently, she wished to argue that the accident would prevent her from becoming a lawyer. The large increase in the amount of the claim represented her (perhaps optimistic) estimate of what she would have been able to earn in that field.  Continue reading →

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