Insurer Must reimburse MVAC Fund for Accident Benefits

Posted on April 21, 2004 by Stephen Cavanagh

In Kalinkine v. Superintendent of Financial Services Commission, a Superior Court decision released this week, The Personal Insurance Company was ordered to reimburse the Motor Vehicle Accident Claims Fund for accident benefits payments paid in error by the Fund. We have attached a copy of the decision.

The accident occurred on January 3, 2000. The claimant reported to the Fund that he had been hit (as a pedestrian) by an unidentified vehicle. The Fund proceeded to pay income replacement benefits to him on this basis. Continue reading →

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California Lawyers Liable for Continuing Unmeritorious Claims

Posted on April 21, 2004 by Stephen Cavanagh

On Monday, the California Supreme Court ruled that “an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause”. We have attached a copy of the decision in Zamos v. Stroud.

Not the law in Ontario (we don’t think!) but, as is often the case with U.S. jurisprudence, perhaps a harbinger of things to come…

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Costs Premium Refused

Posted on April 20, 2004 by Stephen Cavanagh

In the wake of the case that we forwarded last week, Russett v. Bujold, another decision was released today that deals with the issue of “risk premiums” on awards of costs. In Grass v. Women’s College Hospital , attached, Madam Justice Susan Lang provides a useful summary of the “premium” cases (at paragraphs 22-33).

This particular case was somewhat unusual, in that it proceeded all the way to the Supreme Court of Canada, before being sent back for a new trial. It was a medical malpractice case in which damages had been agreed at $1.3 million: the only issue was liability. In the second trial, the defendant was found liable. Today’s decision dealt with interest and costs. Continue reading →

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Important Costs Decision

Posted on April 7, 2004 by Stephen Cavanagh

We have attached the decision of Justice Denis Power in Russett v. Bujold on the issue of costs. As you will see from the fax line at the top of each page, this is literally “hot off the presses”.

This case is an important one to anyone involved in personal injury litigation. Indeed, it will undoubtedly be one of the leading authorities on costs in this type of case.

There are several features of the decision that make it a must-read. The main one, though, is that, unlike many of the major costs decisions, this action did not involve catastrophic injuries and huge indemnity dollars. Rather, it was very much a typical soft tissue case. So Justice Power’s decision will have broad application to many of the cases that you are handling. Continue reading →

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AB Settlements Can Be Rescinded at Any Time

Posted on March 31, 2004 by Stephen Cavanagh

We have attached a copy of the decision in Navage v. Pilot Insurance, just released by the Ontario Superior Court. It deals with the consequences of an insurer’s failure to comply fully with the provisions of s. 9.1 of a former version of Ont. Reg. 664 in settling a claim for accident benefits. In this case, a settlement entered into by Pilot Insurance in 1996 (in which both it and the insured were represented by counsel) was set aside. (copy of decision)Although the case dealt with the version of the SABS that applied to accidents after December 31, 1993 and before November 1, 1996, the result of the decision is that settlements of claims governed by that SABS are capable of being set aside at any time. The court found that there is no limitation period restricting the insured’s right to rescind. Continue reading →

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Injury is Permanent But Not Serious

Posted on March 31, 2004 by Stephen Cavanagh

A rare bird has been sighted: a threshold decision in favour of the defence.

In Singh Kapoor v. Patterson, a copy of which is attached, Justice Wein dismissed an action arising out of a 1998 MVA. The dismissal was based on the plaintiff’s failure to link his main injury to the MVA giving rise to the action. But as an alternative ground, the court found that the injury was not “serious” and so, did not meet the threshold. Continue reading →

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Wife’s Insurer Won’t Pay Husband’s $1.8 Million Judgment

Posted on March 31, 2004 by Stephen Cavanagh

A plaintiff who was seriously injured in “an altercation” outside his former house has been unsuccessful in his attempt to collect his judgment from AXA Insurance.

The case is Umlauf v. AXA and a copy is attached. The plaintiff obtained a $1.8 million judgment against his former wife and her brother. He took an assignment of his ex-wife’s rights against AXA, which was the homeowner’s insurer of the property where the “altercation” had occurred. The plaintiff himself had formerly lived at the same house and he was shown as a named insured in AXA’s policy. Because of this, AXA had refused to undertake the defence of the ex-wife and was refusing to indemnify her against the plaintiff’s judgment. Continue reading →

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“Doctored” Surveillance Nets $3 Million Award

Posted on March 31, 2004 by Stephen Cavanagh

Insurers who have been shocked to see awards of punitive damages in the hundreds of thousands of dollars should count their blessings and be glad they’re not private investigation firms. (copy of decision)

In Hordo v. Mrowiec, the Superior Court was dealing with a claim against an investigation firm which had undertaken some surveillance of the plaintiff. The court found that this the defendant had “knowingly produced a false and doctored videotape and provided a false report about surveillance of the plaintiff”. The precise nature of the “doctoring” was not specified. Continue reading →

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Disability Benefits Reduce Uninsured Limits

Posted on March 26, 2004 by Stephen Cavanagh

The Court of Appeal today released its decision in Kosanovic v. Wawanesa Insurance, a copy of which we have attached. The decision involved an interpretation of the former s. 2(1)(b) of Ont. Reg. 676. That regulation deals with “Uninsured Automobile Coverage”. The court ruled that payments received by an injured plaintiff from his own disability carrier reduce the liability of the automobile insurer under the uninsured coverage.

Section 2(1)(b) of the regulation was revoked on July 2, 2003. But when it was in force (as it was at the time of the accident in this case), it provided as follows: Continue reading →

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Slip and Fall Claim Dismissed on Causation Basis

Posted on March 24, 2004 by Stephen Cavanagh

A recent occupier’s liability case resulted in a ruling in favour of the defence. The case was a fairly garden-variety parking lot slip and fall. What is interesting is that although the trial judge (Madam Justice Sarah Pepall) found that the defendant did not have an adequate maintenance system in place, she went on to rule that the plaintiff had not established that the condition of the defendant’s parking lot had caused the injury. So, because the plaintiff (who was represented by A.M. Kwinter, of Mazza v. Hamilton Township Mutual Insurance Co. fame) was unable to link her injuries to the defendant’s negligence, the action was dismissed. (decision attached)

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