mesothelioma attorney insurance lawyer: 2014

Rabu, 24 Desember 2014

Renter’s Insurer is First to Respond, Even if Only a Third Party

A recent decision of the Ontario Superior Court of Justice provides guidance as to whose insurer must respond first to a plaintiff’s claim in motor vehicle accidents involving rented or leased automobiles.

In Elias v. Koochek, 2014 ONSC No. 5003 (S.C.J.), the Court heard a motion involving a rental car accident. The passengers of the car brought a lawsuit naming the uninsured driver of the car (Koochek) and the owner of the car (Aviscar) as defendants. Aviscar then brought a third party claim against the renter of the car (Moshe). The court was asked to determine whether the renter’s insurer was required to respond first to the plaintiff’s claim.

In order to answer this question the court looked to section 277(1.1) of the Insurance Act and the corresponding provisions of the Ontario Automobile Policy. Section 277(1.1) provides for the priority in which available insurance policies are to respond to liability from the ownership or operation of a leased (rented) automobile. It states that the lessee’s (renter’s) policy is to respond first, followed by the driver’s policy and then the owner’s policy. This is an exception to the general rule in motor vehicle accidents that the owner’s policy is to respond first.

The renter argued that his insurance was not “available” because he was not named as a defendant in the main action. The court disagreed, and stated that making the availability of the renter’s policy dependant on whether the renter was named as a defendant or a third party would lead to inconsistent results and subvert the legislative intent behind section 277(1.1). The court said that while a claim does need to be made against the renter in order to trigger the availability of their insurance under 277(1.1), the procedural manner of pleading by which this claim is made is not relevant.

As such, the court found that the renter’s insurer did need to respond first to the plaintiff’s claim.

Minggu, 21 Desember 2014

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Rabu, 17 Desember 2014

Changes to the Rules of Civil Procedure

The Rules of Civil Procedure are being amended as of January 1, 2015. Included in the amendments are changes to r. 48.

Currently, r. 48.14 provides that if an action has not been placed on the trial list within two years after the first defence is filed, the Registrar will issue a status notice providing that the action will be dismissed in 90 days.

The new rule provides that the Registrar shall dismiss the action for delay if:

(a) The action has not been set down or terminated by the later of five years after its commencement or January 1, 2017; or
(b) The action was struck from the trial list and has not been restored to the trial list by the later of two years of being struck or January 1, 2017.

If a status hearing was scheduled before January 1, 2015, the old rule continues to apply.

These amendments will likely help to avoid many motions that were necessary to either avoid a dismissal or to set aside an administrative dismissal.

Rabu, 10 Desember 2014

City Not Liable for Icy Boulevard

In 2013, we blogged on a decision by Justice Gorman dismissing a claim where the plaintiff fell on a sloped boulevard between the street and the sidewalk, Bondy v. London. The link to the blog post can be found here. The plaintiff appealed the decision.

The Court of Appeal dismissed the appeal, at 2014 ONCA 291 (C.A.). The parties agreed that the boulevard was a "highway" within the meaning of the Municipal Act. The Court of Appeal held that the highest standard to which the area needed to be maintained was as a highway for vehicles, not as a passageway for pedestrian traffic.

The plaintiff argued on appeal that because from time to time people cross the road in the middle between intersections, it creates a special circumstance that elevates the standard of maintenance. The Court of Appeal disagreed, holding that "The fact that people may cross at undesignated places on a road does not create or impose on the Municipality a higher level of maintenance obligation." There were also no special circumstances that created an obligation on the adjacent property owner to maintain the boulevard.

Rabu, 03 Desember 2014

Municipal Toboganning Case Dismissed

The Municipality of Leamington recently successfully defended a case where the plaintiff alleged she was injured tobogganing. In De Cou v. Leamington, 2014 ONSC 6044 (S.C.J.), the plaintiff was injured while sledding down a hill in a park run by Leamington. Although the Town was aware that people used the hill, there had been no complaints about it. The plaintiff was 29 years old and had been sledding on the hill since she was 5. The Town did not maintain the park in the winter.

Justice Carey held that there was no breach of the duty of care. The plaintiff willingly assumed the risk. Justice Carey held that "Going down a snow covered hill in February on a light piece of material (be it plastic, cardboard, Styrofoam or wood) is a typical Canadian winter experience. Falling off a sled is also part of that experience." There was no causal link between the Town's failure to supervise or inspect the hill and the plaintiff's injuries. The case was dismissed.

Rabu, 26 November 2014

Court of Appeal Upholds $1.1 Million Jury Award

The Court of Appeal has upheld a $1.1 million damages award in a product liability case heard by a jury.

In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it. The jury found the defendant 75% at fault and the plaintiff 25%. Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.

The Court of Appeal upheld the award except for the aggravated damages. It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict. Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances. In the circumstances, there was an evidentiary basis for the jury's conclusion.

The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.

This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.

Jumat, 21 November 2014

Wisconsin's Top Super Lawyers, Milwaukee Magazine, December 2014

Great news regarding two of Wisconsin Top Super Lawyers! It's absolutely an honor and privilege for Jeff and I to get this sort of recognition for our efforts on behalf of personal injury victims. We love what we do and clearly, it seems, our peers recognize our hard work.

As I always say, if you are searching for a highly qualified, skilled and reputable Wisconsin injury attorney to handle your car crash, mesothelioma, or other injury lawsuit, start with independent peer-reviewed sources like Best Lawyers in America, Martindale-Hubbell Peer Review Ratings (AV® Preeminent™), and Super Lawyers. And for heaven's sake, steer clear of personal injury mills who advertise excessively and pay athletes or others to make them look good.

By the way, you may know that Bob Dolan does our radio ad, but did you know that he does it for free because he believes in us and has been represented by me? I guarantee that the personal injury mills in Milwaukee cannot say the same. In fact, if you read the unreadable fine print in ads, you will realize that those are bought and paid for endorsements.

Wisconsin Personal Injury Lawyer

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Rabu, 19 November 2014

No Rebuttable Presumption in Section 4 of the Occupier's Liability Act

Section 4 of the Occupier's Liability Act creates a lower standard of care where premises are "recreational trails reasonably marked as such". A person who enters such premises is deemed to have willingly assumed all risks. The Divisional Court has confirmed that the purpose of s. 4 is to reduce the duty of care owed by certain occupiers and attempts to thwart the legislation will not be permitted.

In Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.), the plaintiff was injured while biking on a recreational pathway. The Commission brought a motion for summary judgment. The motions judge dismissed the motion on the basis that there was a rebuttable presumption the plaintiff could advance at trial to dislodge the lower standard of care contained in s. 4.

The Divisional Court disagreed. The purpose of s. 4 is to reduce the duty of care owed by occupiers of recreational lands. If the motion judge's decision was allowed to stand, it would undermine the purpose of s. 4. Acting in reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury result". There was no evidence the Commission acted in that manner, and in fact, there was evidence the Commission took some steps for the safety of users of the trial.

The Divisional Court allowed the appeal and dismissed the action.

Rabu, 12 November 2014

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Rabu, 05 November 2014

The Importance of Clarity in Making Rule 49 Offers

The law with respect to r. 49 offers is increasingly complicated. It is important for offers to be clear in order to benefit from the provisions of r. 49. At the same time, even if an offer does not qualify as a r. 49 offer, it can be taken into consideration when a court is deciding costs.

In Elbakhiet v. Palmer, 2014 ONCA 544 (C.A.), the plaintiffs sought damages of almost $2 million dollars. After a jury trial, they were awarded $144,013.07. The plaintiffs made one offer of $600,000 plus costs. The defendants made two offers, the second of which was $145,000 plus pre-judgment interest in accordance with the Courts of Justice Act plus costs.

One of the issues at the Court of Appeal was whether the defendants obtained a judgment as favourable or less favourable than their offer. The defendants’ position was that the offer was intended to mean PJI of 5% on the entire offer (which would mean the offer exceeded the judgment). The trial judge held that it was not clear that there was a uniform practice that 5% would be applied to the entire offer, and different rates of interest could apply to different heads of damages. She held the defendants had not beat their offer and ordered the defendants to pay costs of almost $580,000.

The Court of Appeal held that there is no evidence of a general understanding that 5% would apply to the entire offer. At the same time, the trial judge failed to give proper consideration to r. 49.13 which permits the court to exercise discretion and take into account any offers made. Since the offer to settle was virtually the same as the judgment, the trial judge should have taken r. 49.13 into account. She erred in failing to do so.

The Court of Appeal held that “it was not fair and reasonable to award the [plaintiffs] costs of almost $580,000 for a claim the jury valued at just under $145,000”. It allowed the appeal and reduced the costs payable to the plaintiffs to $100,000.

Rabu, 29 Oktober 2014

The Importance of Certainty When Pursuing the Deduction of Collateral Benefits

The jury in Gilbert v. South et al., 2014 ONSC 3485 (CanLII), awarded the plaintiff general damages, future care costs and damages for past and future income loss and loss of housekeeping.

The plaintiff had been injured in a motor vehicle accident in 2010. The plaintiff’s injuries were non-catastrophic. He was entitled to certain statutory accident benefits including up to $100,000 for medical and rehabilitation, subject to a 10-year time period.

The plaintiff had received some medical benefits totalling $14,822.50 and housekeeping benefits totaling $14,822.50. The plaintiff had neither applied for nor received income replacement benefits or attendant care benefits and the time period to receive same had expired. The time period had also expired for the plaintiff to receive future housekeeping benefits. The defendant did not seek relief in relation to the benefits that may have been available to the plaintiff but were not pursued.

Prior to judgment being formally entered, the defendant brought a motion seeking various forms of relief relating to “certain futurestatutory accident benefits and other collateral benefits” received or to be received by the plaintiff.

The defendant relied on s.267.8 of the Insurance Actwhich in certain prescribed circumstances imposes trust, payment and assignment obligations on plaintiffs who in motor vehicle accident cases obtain certain types of litigated recovery for losses which also may be addressed by certain collateral benefits (para 8).

Justice Leach set out the general principals relating to the application of this section, including the following (pars 9):

· the object of these provisions is to prevent “double recovery” by the plaintiff. The provisions assume that the plaintiff has obtained, through litigation, damages covering the same loss otherwise covered by the collateral benefits;

· concern of double-recovery is balanced by concern that a plaintiff should receive full compensation and not recover less than that to which he is entitled. Statutory provisions of this nature are strictly interpreted and applied;

· deductions from a plaintiff’s damage award to prevent double-recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, and the plaintiff received compensation for the same benefits in the tort judgment. Evidence of “likelihood” and “probability” is not enough to warrant a deduction. A “very strict onus of proof” applies in relation to such matters, and it must be “patently clear” that the preconditions for an appropriate deduction have been established.

Justice Leach held that there were too many uncertainties as to entitlement and overlap to grant the relief requested and the defendant’s motion was denied. There was no evidence as to the total amount or the nature of statutory accident benefits the plaintiff would definitely receive.

A further obstacle to the relief requested by the defendant was that the jury awarded the plaintiff $57,250.00 for “future care costs” but the jury did not indicate, and was not asked to indicate, the extent to which any of this amount was allocated to the time period during which the plaintiff may be entitled to medical and rehabilitation benefits. Of importance, Justice Leach notes that this uncertainty may have been avoided by the posing of more specific questions to the jury.

This decision stresses the importance of quantifying future entitlement to collateral benefits in advance of trial and the importance of taking care to ask the necessary questions of the jury in order to identify any overlap between the tort award and collateral benefits.

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Rabu, 15 Oktober 2014

The Test to Determine Whether an Insured "Permitted" the Unauthorized use of a Motor Vehicle

A recent decision looked at the test to determine whether an insured permitted someone else to drive his vehicle when she was not authorized to do so.

In O’Connell v.Personal Insurance Co., (2014 ONSC 1469 (S.C.J.), the insured let his girlfriend borrow his motor vehicle. The insured’s girlfriend was involved in an accident. It turned out that the insured’s girlfriend only had a G1 license and therefore she was not authorized to drive alone or on a 400 series highway, where the accident occurred. The insured stated that he had assumed his girlfriend had a full license. At trial, the insured’s girlfriend testified that she had not told the plaintiff that she did not had have a full license because she was embarrassed. The insurer denied a defence and indemnity on the bases that the insured had breached statutory condition 4(1) of the Ontario Regulation 777/93 and section 1.4.5 of the OAP, by allowing someone else to drive his vehicle when they are not authorized to do so.

The court held that the insured had not “permitted” his girlfriend to drive when she was not authorized to do so. In reaching this conclusion, the court held that the test to determine whether an insured permitted the use of their vehicle by an unauthorized driver is whether the insured took all reasonable and prudent precautions to see that the statutory condition was not contravened. The court held that the insured knew his girlfriend had a driver`s license and it looked the same has his full G license, he had heard her anecdotes involving driving in the past and she had never told him that she only had a G1 license. Given this, the court held that the insured acted as reasonably and prudently as an average individual in similar circumstances, the statutory condition was not breached and the insurer was bound to defend and indemnify the insured.

Rabu, 08 Oktober 2014

"Buyer's Remorse" Does Not Entitle Plaintiff to Rescind Settlement

In almost every settlement, there is an element of compromise. In some cases, there is "settlor's remorse" and one of the parties tries to rescind the agreement. Fortunately, the courts generally hold litigants to their bargains.

An example is Morant v. Sun Life Assurance Company of Canada, 2014 ONSC 2876 (S.C.J.). The parties attended a mediation where they reached a settlement. Approximately two weeks letter, the plaintiff's counsel wrote advising his client wished to resile from the settlement and would bring a motion to set it aside. Plaintiff's counsel filed an affidavit deposing that at the time of the settlement, the plaintiff was in emotional and physical pain, extremely fatigued and felt unduly stressed and pressured. The plaintiff herself did not file an affidavit.

Justice Daly dismissed the motion to set aside the settlement. Justice Daley held that as a general rule parties are held to their agreements, although there are certain situations where courts may exercise discretion not to enforce a settlement:

[34]         As a general rule parties are to be held to their bargains and to settlements which they negotiate and conclude. The court may exercise its discretion not to enforce the terms of a settlement where there is evidence that:
(a)               the resulting agreement and settlement was unconscionable, fraudulent or based on a party’s misapprehension of a material fact which was known to the opposite party;
(b)               the solicitor representing the party was not retained or did not have authority to settle the action and this limitation was known to the opposite party; and
(c)               the party lacked the legal or mental capacity to enter into the settlement agreement at the material time.

In the circumstances, there was no evidence that counsel did not have authority, that the plaintiff lacked capacity or that the settlement was unconscionable. At most, the plaintiff's evidence was that she had a change of heart or "buyer's remorse", which does not constitute proper grounds for setting aside a settlement.

Rabu, 01 Oktober 2014

Automatic Renewal Section of Policy Does Not Obligate Insurer to Renew

Does an "automatic renewal" section in a home owner's policy require the insurer to renew? A recent decision says "no".

In Merei v. State Farm Fire and Casualty Company, 2014 ONSC 1960 (S.C.J.), the plaintiffs' home was destroyed by fire eight days after their home insurance policy was cancelled. The insurer's underwriting department made the decision not to renew the policy after the plaintiffs made three claims and had a history of non-payment. The policy contained the following clause:

Automatic Renewal – if the policy period is shown as 12 months, this policy will be renewed automatically subject to the premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we will give you and the Mortgagee/Lienholder written notice in compliance with the policy provisions or as required by law.

The plaintiffs alleged that the "automatic renewal" section of their policy obligated the insurer to renew the policy as they were not in arrears, not in breach of any of the rules in the policy and had submitted all forms.

The Court disagreed, relying on the plain reading of the contract (and common sense). Justice Carey held that the policy was intended to allow for a renewal of the policy when the policy has not been cancelled. He stated, "It is contrary to all rules of interpretation and normal insurance practice to conclude the insurer intended that they could only cancel the policy if the policy was not in good standing".

Rabu, 24 September 2014

Owner of Vehicle Not Protected Under the Workplace Safety and Insurance Act

A recent Superior Court decision highlights the interplay of the Workplace Safety and Insurance Act with the Highway Traffic Act.

In Maria-Antony v. Selliah, 2014 ONSC 4264 (S.C.J.), the plaintiff was injured in a motor vehicle accident involving a tractor-trailer owned by FTI. At the time of the accident both the plaintiff and the defendant driver (Selliah) were employed as transport truck drivers for 1362038 Ontario. They had been contracted to carry cargo for 1323109 Ontario.

A right to sue application was brought before the Workplace Safety and Insurance Appeals Tribunal. The tribunal held that plaintiff's action against Selliah and the numbered companies was barred. Since FTI was not an employer, the action against it as owner was not barred.

FTI brought a summary judgment motion to have the action against it dismissed, taking the position that the result of the Tribunal decision was to make any liability to the plaintiff several (not joint and several), thereby limiting liability to its own negligence. There was no evidence of negligence by FTI; the claim was based on its status as owner of the vehicle.

O'Marra J. dismissed the motion. Section 192 of the Highway Traffic Act which imposes vicarious liability on the owner of a vehicle for the actions of the driver, and so FTI remained liable for the acts of the driver. Even though the action against Selliah was barred, FTI did not enjoy the statutory protection under the WSIA.

It seems that this decision allows plaintiffs to do indirectly what they cannot do directly: recover damages based on the negligence of a protected worker.

Rabu, 10 September 2014

Facebook Usage History Ordered Produced

Social media can be a useful investigative tool for defendants. In an interesting twist, a Nova Scotia court has ordered the plaintiff's Facebook usage history produced.

In Conrod v. Caverley, 2014 NSSC 35 (S.C.), the plaintiff claimed she sustained injuries in a motor vehicle accident that compromised her ability to work and participate in recreational and social activities. She complained of problems that limited the time she is able to spend using websites like Facebook. The Nova Scotia Rules require "relevant" documents be produced.

Although Justice McDougall was not prepared to order production of the plaintiff's private portion of her Facebook account, he was satisfied the usage records were relevant and ordered they be produced:

[55] I am satisfied that the Facebook usage data requested by the Defendants is relevant to whether Ms. Conrod's injuries have affected her ability to concentrate and the information should be produced. The privacy interests implicated in this case are far less significant than in Laushway and Bishop where production of a party's entire hard drive was ordered so that evidence could be extracted by a third party. The usage records sought by the Defendants can be easily obtained by Ms. Conrod and the contents will not reveal any potentially sensitive personal information about her internet activity such as websites she visits or private conversations she participates in on the internet.

Jumat, 05 September 2014

Personal Injury Settlement Mills

Personal injury lawyer advertising in Milwaukee is absolutely over the top. The other day, I was at the dentist and a T.V. was on. During just one commercial break, I saw five Milwaukee personal injury lawyers ads. Whether it is T.V. advertising, personal injury lawyers' letters, or phone calls after a car accident, consumers need to be very careful about the law firm and attorney they choose to represent them after an accident.

To get an idea of what some of the problems can be with certain personal injury lawyers, I suggest reading Atlanta lawyer Ken Shigley's post “One call that’s all?” Personal injury “settlement mills” blasted in Georgetown Journal of Legal Ethics.
Wisconsin Personal Injury Attorneys

Rabu, 03 September 2014

Last week, we blogged about a summary judgment decision dismissing an occupier's liability claim. This week, our focus is on a slip and fall action that was dismissed at trial. Once again, the Court confirms that occupiers are not held to standards of protection and what is reasonable depends on the circumstances.

In Souliere v. Casino Niagara, 2014 ONSC 1915 (S.C.J.), the plaintiff slipped and fell in a buffet restaurant. A staff member saw another patron drop a brown liquid substance, then seconds later the plaintiff fell in that approximate area.

There was no one employee responsible for cleaning floors or inspection, but rather all employees were trained to be on the lookout. There was no policy of regular cleaning although floors were cleaned at night after the restaurant closed.

Justice Henderson held that the Casino met its duty of care. The liability analysis in occupier's liability cases is fact driven and varies from case to case. It revolves around issues of whether the occupier had reasonable policies and procedures in place for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed. Although there was no evidence the policy was being followed, the evidence was the floor was clean so the policy was working reasonably well.

Rabu, 27 Agustus 2014

Slip and Fall Action Dismissed on Summary Judgment Motion

In Occupier's Liability cases, it is important to remember that occupiers are not insurers.

In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (S.C.J.), the plaintiff alleged she fell on debris on the stairs in a subway station. At her examination for discovery she testified she slipped on floor tiles. She could not describe what she fell on and there were no witnesses. A janitor was assigned to the station and followed a detailed schedule of regular maintenance and cleaning.

Justice Perell held that a plaintiff must pinpoint some act or omission on the part of the occupier that caused the plaintiff's injury. The Occupier's Liability Act does not impose strict liability and the presence of a hazard does not lead inevitably to the conclusion that the occupier has breached its duty. The occupier does not have to remove every possible danger; the standard of care is one of reasonableness, not perfection.

Justice Perell allowed the TTC's summary judgment motion and dismissed the claim. The plaintiff could not prove a hazard existed, and the evidence was that TTC took steps to make its premises as safe as in all the circumstances was reasonable. He used a common sense approach:

[29] It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.

Kamis, 21 Agustus 2014

I am extremely proud to announce that both Jeff Zirgibel and I were recently selected by our peers for inclusion in The Best Lawyers in America© 2015 in the field of Personal Injury Litigation - Plaintiffs. Inclusion in Best Lawyers© is highly selective and "based on an exhaustive and rigorous peer-reviewed survey."

Wisconsin Personal Injury Lawyers

Rabu, 20 Agustus 2014

The Test for Catastrophic Impairment

A recent decision by the Divisional Court in Ontario provides a plaintiff-friendly interpretation of the test for catastrophic impairment under the SABS.

In Security National Insurance Co. v Hodges, 2014 ONSC 3627 (Div. Ct.), GCS scored administered within 30 minutes of the accident were 11. He underwent surgery the day after the accident and scores fell to 3 while he was intubated, but rose to 10 once the trachea was removed. Roughly three days following the accident – and while still under the influence of medication – several GCS tests were administered and resulted in scores of 9. MRI and CT scans done at the time suggested that, while Mr. Hodges had suffered a brain injury from the accident, the extent of the injury was quite limited. GCS tests administered over the following days showed continuing improvement and the final GCS test indicated no impairment in consciousness.

The insurer denied the plaintiff's application for catastrophic impairment. The arbitrator found that the plaintiff met the test for catastrophic impairment and this finding was affirmed under appeal to FSCO. The insurer appealed to the Divisional Court.

In upholding the FSCO decision, the Divisional Court stated that what constitutes a reasonable period of time to conduct the GCS test should be determined on a case-by-case basis. It found that, in this case, the test was conducted within a reasonable period of time, given that the injured individual was still experiencing fluctuating levels of consciousness at the time of the test. The court rejected the argument that the GCS score had to have “prognostic value,” saying that this would turn the legal test for catastrophic impairment into a medical test. The court also rejected the argument that the statute required that the brain injury be the sole cause of the score of 9 or less, saying: “It is sufficient that the person claiming catastrophic impairment had any brain injury causing anyimpairment….”

It will be interesting to see if Hodges results in a greater number of applications for a CAT designation. Of course, the claimant still needs to show entitlement to benefits even if successful.

Rabu, 06 Agustus 2014

Court Grants Summary Judgment Against Party Bringing Motion

Courts seem to be embracing the "culture shift" advocated by the Supreme Court in Hryniak.

In King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (C.A.), the plaintiff sued for solicitor's negligence in connection with a commercial real estate transaction. The defendants brought a summary judgment motion to dismiss the claim on the basis of an expired limitation period. The motions judge dismissed the motion, but went a step further, granting summary judgment for the plaintiffs on the basis that the defendants had acted negligently.

The defendants appealed and the Court of Appeal dismissed the appeal. It held that the evidence was clear that there was a duty to warn and the solicitor failed to do so. The Court of Appeal held that "the principles of proportionality and sensible management of the court process support the judge's ruling".

King Lofts shows a danger to bringing a summary judgment motion under the new Hryniak test. Is this an unintended consequence of the new regime or in line with a goal of reducing the number of cases that need a full blown trial?

Rabu, 30 Juli 2014

Plaintiff Ordered to Attend Second IME

A recent decision highlights the importance of wording correspondence when disputes arise over IMEs.

In Caesar v. Griaznov, 2014 ONSC 4329 (S.C.J.), the plaintiff alleged both physical and psychological injuries. Defence counsel arranged IMEs with a psychiatrist and a physiatrist. Plaintiff's counsel advised the plaintiff would attend only one IME of the defendant's choosing. A clerk in defence counsel's office sent a letter stating the defendant "chose" the psychiatrist. She later followed up in an email that read as though the clerk assumed the physiatry IME would proceed as well.

Master Muir ordered the plaintiff to attend the second examination. Since the plaintiff was claiming two distinct types of injury (physical and psychological), fairness dictated the plaintiff be compelled to attend. There would be no overlap between the two examinations. There was little unfairness to the plaintiff since there was no trial date pending and a mediation date was several months away. In contrast, there was the risk of significant unfairness to the defendant who would be required to defend a central element of the plaintiff's claim without the benefit of a current expert assessment.

Master Muir denied the successful defendant costs given the clerk's letter which suggested the defendant had "chosen" only one examination. The decision on costs seems odd given that Master Muir was satisfied the defendant always intended to preserve her right to a second examination. Counsel should be alert to the wording used in correspondence relating to disputed IMEs.

Rabu, 23 Juli 2014

Plaintiff Failed to Meet Threshold

The Court of Appeal recently affirmed a trial judge's decision to dismiss an action based on the failure to meet threshold.

In Jennings v. Latendresse, 2014 ONCA 517 (C.A.), the plaintiff was in a motor vehicle accident in 2005. The defendant admitted liability. While the jury was deliberating the judge heard a threshold motion, and ultimately dismissed the action after the jury rendered a verdict. The jury held that the plaintiff had recovered from her injuries and did not award any amount for general damages or past loss of income, although they valued a loss of competitive advantage at $58,000.

The plaintiff submitted that her diagnosis of chronic pain, by definition, must indicate the injuries were permanent. The Court of Appeal disagreed. There was evidence that the plaintiff was improving and continued to improve, her functional abilities showed no impairment, she had returned to her pre-accident employment, her medical examination showed full range of motion, expert evidence stated recurring pain was not caused by the original injury, and pre-accident physical and psychological stressors contributed to the chronic pain but had nothing to do with the injury. The evidence supported the trial judge's decision the plaintiff did not meet threshold.

One of the arguments made by the plaintiff on appeal was that the jury verdict was inconsistent when it found the plaintiff had recovered from her injuries but awarded an amount for loss of competitive advantage. The Court of Appeal held that there was nothing inconsistent in finding a loss of competitive advantage but that it was not caused by the accident.

Jennings shows the importance of marshalling the evidence at trial as well as conducting a causation analysis, especially in chronic pain cases.

Rabu, 09 Juli 2014

Limitation to Add Defendants Expired

Issues relating to discoverability can be decided on a motion to amend a claim.

In Garic v. Mack Trucks Canada 2014 ONSC 3103 (S.C.J.), the plaintiff was injured in 2006 while operating a dump truck owned by her husband. One of the axles gave way, causing her to lose control and roll into a ditch. Her husband was initially named as an FLA claimant.

In 2012, the plaintiff brought a motion seeking to add her (now former) husband and his company as defendants for failing to maintain the vehicle. She argued the claim was not discoverable until the named defendants gave evidence on discovery that the owner had not followed proper maintenance procedures.

The Court dismissed the motion to add defendants, holding that:

[19] The difficulty with the plaintiff's position is that the case law has established that to discover a claim the plaintiff must only have sufficient facts upon which to support an allegation that there is a cause of action, and it is not necessary for the plaintiff to have discovered complete evidentiary support to make the claim winnable (see Wilkinson v Braithwaite [2011] O.J. No. 1714 (S.C.J.) at para. 32).

The Statement of Claim alleged the named defendants were responsible for "service, inspection and maintenance" of the truck, which was expressly denied in the Statement of Defence. The plaintiff knew her husband was responsible for maintenance of the truck since the business commenced. Justice Broad held that the essential facts were either actually known to the plaintiff or at least obtainable with due diligence more than two years since the motion was brought.

Selasa, 01 Juli 2014

The Limitation Period to Commence a Claim under OPCF-44R

The decision in Schmitz(Litigation guardian of) v. Lombard General Insurance Co. of Canada, 2014 ONCA 88 (C.A.) is an important decision on when the limitation period begins to run in a claim under form OPCF-44R, for underinsured motorist coverage.

This matter concerned a motor vehicle accident that occurred on July 19, 2006. The plaintiff had a policy of insurance which included a provision for underinsured motorist coverage. The plaintiff commenced a claim against the defendant driver in June 2007 and a claim against his insurer for underinsured motorist coverage in June 2010. The plaintiff’s insurer brought a motion to dismiss the plaintiff’s claim on the basis that it was commenced after the expiry of the 1 year limitation period set out in section 17 of the OPCF-44R. The plaintiff took the position that section 17 did not apply and the 2 year limitation period set out in section 4 the Limitations Act overrode section 17 of the OPCF-44R. The motions judge accepted the plaintiff’s argument and dismissed the insurer’s motion. The plaintiff’s insurer appealed this decision.

On appeal, the plaintiff’s insurer conceded that the 2 year limitation period in the Limitations Act applied and overrode the 1 year limitation period in the OPCF-44R. Instead, the insurer asserted that the limitation period began to run when the plaintiff knew or ought to have known that their claim exceeded the Defendant’s policy limits, embodied under section 15 of the OPCF-44R. The insurer argued that this section was not overridden by the discoverability provision under section 5 of the Limitations Act.

The Ontario Court of Appeal rejected the insurer’s argument. The court concluded that once it was accepted that the 2 year limitation period set out in the Limitations Act applied so did the discoverability provisions in section 17 of the Act. Turning to discoverability, the court held that this loss was only discovered by the plaintiff after a formal request for indemnification was made to the insurer and the insurer failed to indemnify the plaintiff. Given this finding, the court held that the 2 year limitation period did not begin to run until the day after the demand for indemnification was made to the plaintiff’s insurer under the underinsured motorist provision of the policy.

Jumat, 27 Juni 2014

Wisconsin Dog Bite Liability

Find out Who's liable for a dog bite in Wisconsin?

Wisconsin Personal Injury Attorney

Rabu, 25 Juni 2014

New Practice Directions

As of July 1, 2014 there are new Practice Directions that come into effect across Ontario. There is a new province-wide direction and well as new ones for each judicial region.

Here is the link to the provincial direction:

http://www.ontariocourts.ca/scj/practice/practice-directions/provincial/

Here is the link to the regional directions:

http://www.ontariocourts.ca/scj/practice/practice-directions/

It is important to be aware of these Practice Directions because some of them change the requirements under the Rules; for example, whereas the Rules do not require factums for each motion, the Practice Direction says factums are required for all long motions.

Kamis, 19 Juni 2014

Consent to Receive the Ontario Insurance Law Blog

Thank you for subscribing to the Ontario Insurance Law Blog. On July 1, 2014, Canada's new Anti-Spam Legislation law takes effect. It requires companies to have your consent to continue sending you information by email. Please click on the following link to continue receiving the Ontario Insurance Law Blog by email. You may unsubscribe by clicking the link at the bottom of the email.

https://www.surveymonkey.com/s/HGLG2F8

Rabu, 18 Juni 2014

Laches Applies to Loss Transfer Actions

Insurers dealing with loss transfers should be aware of the decision in Zurich Insurance Company v. TD General Insurance Company, 2014 ONSC 3191 (S.C.J), where the Court dismissed the claim.

The claim arose out of a motor vehicle accident that occurred July 14, 1999. In 2010, approximately 11 years after the accident, TD sent Zurich a Notice of Loss Transfer alleging Zurich's insured was 100% at fault. Shortly after, TD made two requests for indemnification. In 2011, TD brought an application requiring Zurich to participate in an arbitration. Zurich brought a motion to decide a preliminary issue as to whether the application was barred by the equitable doctrine of laches and the Limitations Act. The arbitrator dismissed the motion and Zurich appealed.

Justice Lederman held that TD's claim was not barred by the Limitation Act, relying on decision in Markel Insurance v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), where the Court of Appeal held that the limitation period runs from the day the first party insurer requests loss transfer from the second party insurer.

However, Justice Lederman held that laches applied in the circumstances. Applying laches in the circumstances was consistent with the fusion of law and equity to achieve just results. He held that acquiescence is a stand-alone basis for laches, and there need not be prejudice for the doctrine to apply. The 11-year delay coupled with a directive that the first party insurer notify the second party insurer promptly and the fact the TD is a sophisticated insurer, gave rise to an inference that it had abandoned or waived its rights to the claim.

Rabu, 11 Juni 2014

The “Curtain” of Asserted Claims of Privilege Lifted to Permit a Full Examination of all Available Evidence

In Tomasone v. Capo, Sgro LLP, 2014 ONSC 2922 (CanLII) the defendant had provided two legal opinions to the plaintiffs which the plaintiffs claimed failed to meet the requisite standard of care. The plaintiffs sued the defendant in negligence. The defendant brought a motion for summary judgment asserting that the plaintiffs’ claim was statute barred by the Limitations Act, 2002.

In defence to the summary judgment motion, the plaintiffs put forward affidavit evidence suggesting they discovered their claims against the defendant after retaining counsel. Their counsel also swore affidavits but during cross-examinations they refused to answer any questions about when or how they discovered those claims.

In advance of the summary judgment motion, the defendant moved for answers to refusals with respect to discoverability, particularly dealing with information and documentation the plaintiffs claimed privilege over.

Master Short considered whether the plaintiffs could rely on privilege in these circumstances and concluded at paragraph 48 as follows:

The plaintiff ought not to be allowed to rely on discoverability arguments to seek to avoid a limitations defence, without making full disclosure with respect to all relevant facts relating to what knowledge was acquired and when.

Master Short also considered the defendant’s argument that even if privilege applied, the plaintiffs waived privilege. Master Short agreed, taking into account the following factors inter alia:

1) the plaintiffs undertook to prove their action was not statue-barred and they put their state of mind and their lawyer’s mind in issue to argue that the action was not statute-barred;

2) the plaintiffs relied upon the affidavit evidence of their lawyer; and

3) the plaintiffs subpoenaed former counsel to give evidence.

Master Short went on to review the guidance provided by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 regarding the importance of full disclosure in light of the court’s power on the hearing of summary judgment motions to assess the quality and sufficiency of the evidence and the requirement that the parties "put their best foot forward".

The plaintiffs were ordered to answer the questions they refused related to the timing of receipt and review of relevant documents and the timing of investigations into possible claims against the defendant.

Rabu, 28 Mei 2014

Action Dismissed for Failing to Provide Municipal Notice

A recent decision dismissed a plaintiff's claim against a municipality for failing to give notice within 10 days, as required by the Municipal Act.

In Seif v. City of Toronto, 2014 ONSC 2983 (S.C.J.), the plaintiff tripped and fell on a sidewalk. She did not provide notice to the City for four months. She stated she was unaware of the Municipal Act notice requirement. She was on painkillers for 3 days, was mobile within a week of the accident and was able to focus on a job search in the weeks after the accident. The Court found that the delay in giving notice was as a result of her indecision as to whether to bring an action.

Justice Morgan dismissed the action. Even though the notice requirement is "very unfair", it is a specific statutory requirement that can only be changed by the legislative. The exception to the notice requirement is to accommodate plaintiffs whose delay is as a result of their injuries. The plaintiff had no reasonable excuse for the failure to comply with the notice requirement. Whether or not the City was prejudice was not relevant.

This is a useful decision for those dealing with a notice issue.