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Whiten v. Pilot Insurance Co.
- facts: following a fire, insurer paid $5,000 in living expenses and covered rent; then cut off the rent without notice, suspecting arson (no evidence, discredited at trial)
- decision: appeal allowed, $1M in punitive damage allowed (had been reduced to $100K by ON Court of Appeal); insurer’s conduct was exceptionally reprehensible and designed to force Whiten to accept lower settlement
- conclusions on punitive damages: can’t limit by "categories", mechanism lies in rationally determining circumstances
- general objectives of punitive damages are:
- deterrence of the wrongdoer and others
- primary vehicle of punishment is criminal law
- all jurisdiction promote rationality (lowest amount that would serve purpose)
- adequacy of punitive damages: they are the exception rather than the rule, and should be imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct
- should be reasonably proportionate to:
- harm caused directed specifically at plaintiff
- degree of misconduct: planned and deliberate, intent and motive, persistence
- relative vulnerability of plaintiff
- advantage or profit wrongfully gained by the defendant
- need for deterrence
- penalties already imposed
Somersall v. Friedman, Somersall v. Scottish and York
- facts: 2 insureds suffered serious injury and brought action against the underinsured liable driver. Third insured brought claim under section 61 of ON’s Family Law Act. Insured subsequently entered into a limits agreement with the other driver, without notice to insurer. Insurer refused to cover the excess damage under the UM coverage
- decision: appeal dismissed; limits agreement had no bearing on the rights of insureds against the other driver at the time of the accident, which was the relevant time for the determination of legal entitlement; did not interfere with insurer’s right of subrogation (which occurs after the insured is fully indemnified)
- aftermath: it still clearly prevents the insurer from subrogating the tortfeasor, so IBC is recommending amendments to the S.E.F. 44 to remove ambiguity
Sansalone v. Wawanesa Mutual Insurance Co.
- facts: L.C. sued Sansalone and 4 BC Transit bus drivers, for alleged damages from sexual acts (she was minor); Wawanesa denied coverage based on exclusion for BI caused intentionally, Lloyd’s based on exclusion for BI caused by intentional or criminal act
- issue: is either insurer required to defend its insureds?
- decision: neither insurer had a duty to defend
- dissenting minority decision: thought that insurers could be liable for intentional acts causing injury (not injury caused intentionally), and that it’s still an occurrence
- majority decision: when risk of injury is inherent in the insured’s deliberate acts so that the injury is the natural and probable consequence of the act, the intention to commit the act is the intention to cause the injury.
Nichols v. American Home Assurance Co.
- facts: it was alleged that the insured had defrauded clients in certain real estate matters, with no other allegation, and the action was subsequently discontinued. Insurer refused to pay as fraud is an exclusion.
- lower court: defence costs are covered; duty to defend is separate from duty to indemnify, and there was no fraudulent act proven
- appeal decision: duty to defend is unambiguously restricted to claims for damages which fall within the scope of the policy
Amos v. Insurance Corporation of B.C.
- facts: Mr. Amos was shot and injured by a gang while he was driving in California; question was whether injuries "arised out of the ownership, use or operation of a vehicle"
- decision: (1) did the accident result from ordinary and well known activities to which automobiles are put? (2) is there some causal relationship? both answers are yes; the wording "caused by" rather than "arising out of" could be used to avoid this.
KP Pacific Holdings Ltd v. Guardian Insurance Co. of Canada
- facts: insurer contends that Part 5 of the BC Insurance Act dealing with fire policies applies to multi peril policies and thus claim filed more than a year after the occurrence of loss is denied. Insured contends that Part 2 of the act applies, allowing claims filed within one year of proof of loss
- decision: claim was not statute-barred; neither language nor history of Part 5 supports the conclusion that the Legislature intended a multi-risk policy to fall within Part 5
Alie v. Bertrand & Frere Construction Company Limited
- facts: Alie and 137 homeowners sued defendants for damages to their foundations resulting from using defective concrete supplied by Lafarge. 2 insurers refused coverage.
- issues: which policies are liable to respond to loss; are the excess insurers responsible for the payment of the insured’s defence costs?
- decision: upheld that all insurers are liable to indemnify Bertrand; most straightforward and accurate nomenclature in each case is injury-in-fact (instead of exposure theory, manifestation theory or continuous or triple-trigger theory
British Columbia v. Imperial Tobacco Canada Ltd.
- facts: the Tobacco Damages and Health Care Costs Recovery Act authorizes an action by the government of BC against a manufacturer of tobacco products for the recovery of health care expenditures incurred by the govt in treating individuals exposed to those products
- decision: BC Court of Appeal judged the Act unconstitutional since it failed to respect territorial limits on provincial legislative jurisdiction. The Court of Appeal set aside the decision, finding that the Act does not offend judicial independence or the rule of law
- details: government enjoys a reversed burden of proof: once it proves that:
- the defendant manufacturer breached a common law, equitable or statutory duty or obligation it owed to persons in BC who (might) have been exposed to cigarettes
- exposure to cigarettes can cause or contribute to disease
- during the manufacturer’s breach, cigarettes manufactured or promoted by the manufacturer were offered for sale in BC
- then the court will presume that:
- the population that is the basis for the government’s aggregate claim would not have been exposed to cigarettes but for the manufacturer’s breach
- such exposure caused or contributed to disease in a portion of the population that is the basis for the government’s aggregate claim
- is the Act ultra vires the provincial legislature by reason of extra-territoriality? (no)
- Is it constitutionally invalid, as being inconsistent with judicial independence? (no)
- Is it constitutionally invalid, as offending the rule of law? (no)
Resurface Corp v. Hanke
- facts: operator of ice-resurfacing machine was badly burned when hot water overfilled the gasoline tank; he sued the manufacturer and distributor for damages alleging that the gasoline and water tanks were similar in appearance and placed close together
- decision: trial judge dismissed, BC Court of Appeal set aside judgement concluding that the trial judge erred in both foreseeability and causation of analysis, CoA reversed
- foreseeability issue: erred in assessing that there was a failure to give adequate analytical emphasis to certain evidence concerning tank placement; erred when stating the judge failed considering policy matters, namely the seriousness of the injury and the financial positions of the parties
- causation issue: comparative blameworthiness, "but for", not "material contribution".
Morrow v. Zhang
- facts: in 2004, AB legislation addressed rising cost of motor vehicle insurance and increase in uninsured drivers by, among other things, capping non-pecuniary damages for minor injuries at $4,000; Morrow challenged the constitutionality of the cap
- decision: trial judge found it infringed their rights; Court of Appeal stated that the judge failed to consider the entire legislative scheme; the MIR neither coerces a minor injury victim to accept a certain treatments, nor does it remove or restrict a healthcare practitioner’s discretion
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