Patterson Insurance Pulse

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Insurance Law Blog
By pipblogger on 11/3/2014 12:29 PM

On October 30, 2014, proposed changes to Nova Scotia’s Limitation of Actions Act passed second reading in the Legislative Assembly.  When declared in force, the amended Act would change a number of time periods within which an action may be filed for certain civil claims.  In particular, the amended Act would create a standard two-year limitation period for most civil claims, such as personal injury claims, and would also create a fifteen-year ultimate limitation period for claims which might not be immediately discovered.  The amended Act would provide that there is no limitation period for actions arising out of sexual assault and domestic violence. 

The status of Bill No. 64 may be followed here:

By pipblogger on 10/15/2014 3:46 PM
Generally speaking, insurance companies have a responsibility defend claims advanced against its insureds in accordance with the terms of an insurance policy.  Where claims are advanced by a plaintiff seeking damages above the limits of an insurance policy, while the insurance company must still defend against the claim upon behalf of their insured, the insured will be required to personally pay the portion of an award of damages that is over and above the policy limits.  Where an insurance company alerts its insured to this risk, it may be that an insured ought to take steps to protect him/herself against that risk, such as seeking independent legal advice (that is, independent from the legal advice its insurance company obtains).  However, the recent case of Brocke Estate v Cromwell should be considered regarding what reasonable steps an insured might take in such instances. 
By pipblogger on 9/30/2014 5:06 PM
The recent Nova Scotia case of Hynes v Jones arose as a result of the Plaintiff, who had been crossing the street within a marked crosswalk, having been struck by a car driven by the Defendant. The Defendant admitted liability but the amount of damages to which the Plaintiff was entitled remained unresolved.  The Plaintiff, who sustained many injuries in the accident, applied to the Court for an interim payment of damages to help cover the costs he was incurring as a result of his injuries while waiting for the matter to proceed to Trial.  If granted, the Defendant would have been required to pay the Plaintiff a reasonable portion of the total damages the Plaintiff would be likely to receive prior to the Trial taking place.
By pipblogger on 8/20/2014 1:41 PM

In the recent Supreme Court of Nova Scotia case of Hopkins v Graham, 2014 NSSC 243, the Court considered the issue of a monetary cap – or maximum – on general damage awards for personal injuries defined as “minor injuries” by Nova Scotia’sInsurance Act.

By pipblogger on 6/30/2014 2:07 PM
In the recent case of Saisho v Loblaw Companies Ltd, 2014 ONSC 1949, the Ontario Superior Court of Justice addressed the liability of a business when one of its patrons causes injuries to another patron on the premises of the business.  

The case arose out of an accident that took place in December 2007, when a patron of the defendant store overloaded his cart to the point that he could not observe where he was going.  He then accidentally struck the elderly plaintiff with his cart, causing traumatic injuries that resulted in the plaintiff being rendered a quadriplegic and being hospitalized until his death in 2013.

The Court acknowledged the general statutory duty on occupiers such as the defendant store, imposed by the Occupiers Liability Act of Ontario to take reasonable care to ensure all persons on an occupier’s premises are reasonably safe (a statutory duty which is also imposed by the Occupiers’ Liability Act in Nova Scotia).

The plaintiff argued that the defendant store was liable...
By pipblogger on 6/2/2014 9:15 AM

In MacCallum v Gamache, the Nova Scotia Small Claims Court addressed a question regarding recovery for property damage arising from motor vehicle accidents.

New section 138A of the Insurance Act, which came into force in April 2013, mandates direct compensation for property damage under certain circumstances.  What this means is that, if those circumstances are present, an insured may receive direct compensation from their own insurer for damage to/loss of use of the insured’s vehicle following a motor vehicle accident – as if he or she was a third party to the to the insured’s policy.  In so providing, the Insurance Act also disallows an insured from taking action against any other party involved in that motor vehicle accident for damage to/loss of use of the insured’s vehicle (although an insured may still take legal action against any other party to the accident for personal injuries). 

By pipblogger on 5/2/2014 12:32 PM
In the recent Nova Scotia Supreme Court decision of Linden Estate v CUMIS Life Insurance Co, 2014 NSSC 115, Wanda Linden, as personal representative of her deceased husband Patrick Linden, sought an order that CUMIS Life Insurance Company pay the full amount owing under a life insurance policy on Mr. Linden’s life.  CUMIS argued that Mr. Linden had made material misrepresentations about his health in his application for the life insurance policy, thereby voiding the insurance contract ab initio.  As a result, CUMIS argued that there was no amount owing to Ms. Linden.

In its decision, the Nova Scotia Supreme Court reiterated that it is well-settled that insurance contracts are contracts of utmost good faith, requiring those seeking insurance to disclose all material facts known to them.  Indeed, the Insurance Act of Nova Scotia has codified the obligation for disclosure by those who are applying for disability...
By pipblogger on 4/17/2014 12:07 PM

In the recent decision Trenholm v H & C Trucking Ltd, the Nova Scotia Supreme Court discussed what constitutes a compensable psychiatric illness or disorder and what constitutes an appropriate damage award for such illness or disorder.

The Plaintiff was present when a friend was killed in a motor vehicle accident.  After their vehicle broke down, the Plaintiff and two friends were walking home along the Trans Canada Highway.  As a transport truck passed them, the Plaintiff stumbled at the same time as the transport truck struck her two friends, killing one instantly and injuring the other.  The Plaintiff suffered no physical injury, but she sought compensation for nervous shock.  The Defendants denied that the Plaintiff suffered any compensable loss.  At issue was whether the Plaintiff had proven that she suffered from a recognizable psychiatric illness or disorder as a result of the accident.  If so, the amount of damages to which the Plaintiff was entitled was to be determined.

By pipblogger on 4/1/2014 8:29 AM
On March 31, 2014, the Nova Scotia Court of Appeal dismissed the Plaintiff’s appeal of the decision in Russell v Goswell, 2013 NSSC 383.  The Plaintiff had appealed the Honourable Justice Duncan’s decision that several letters authored by the Plaintiff’s family physician and letters by a registered psychologist could not be admitted as treating physicians’ narratives under Nova Scotia Civil Procedure Rule 55.14.
By pipblogger on 3/18/2014 4:53 AM
When an insurer’s duty to defend arises is not always straightforward.  Such was the case in Liardi v Riotrin Properties (Kingston) Inc.  In Liardi, a customer slipped and fell on ice outside of a Future Shop, and subsequently advanced a claim.  Future Shop argued that its insurer, Zurich Insurance Company, must defend the claim.  Zurich took the position that the area where the fall occurred was within the responsibility of a Riotrin Properties (Kingston) Inc., the owner of the premises.  Riotrin had a lease agreement with Future Shop under which Riotrin assumed responsibility for the common areas of the shopping complex and agreed to name Future Shop as a Named Insured in its comprehensive general liability insurance policy.  As such, Zurich argued that its duty to defend was not triggered. Future Shop sought a declaration that Zurich had a duty to defend.