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.
Rabu, 28 Mei 2014
Rabu, 21 Mei 2014
Lawyer Swearing Affidavit for Motion does not Waive Solicitor-Client Privilege
Solicitor-client privilege is an important right, as seen in a recent appeal of a Master's decision.
In Elgner v. Freedman Estate, 2014 ONSC 1989 (S.C.J.), the defendant brought a motion for particulars. A lawyer from the firm representing the defendant swore an affidavit in support of the motion. Plaintiff's counsel cross-examined on the affidavit and a number of refusals were given. On a motion for the refusals, the issue was whether the tendering of litigation counsel's affidavit in support of a motion amounts to "a total waiver of privilege over a lawyer's file." The Master held it did not and Justice Morgan upheld the decision on appeal.
The refusals were extremely broad, including things such as accounts, letter of advice, dockets, and the initial retainer. The plaintiff argued that since defence counsel swore they had no information (and therefore needed particulars), the only way to test their assertion was to ask to see everything. Plaintiff's counsel also argued they needed to see everything in order to test the assertion the affidavit was made for "no improper purpose". Justice Morgan disagreed, holding that the onus is on the party asserting the affirmative, not the party stating a negative. If a statement that an affidavit is sworn "for no improper purpose" requires cross-examination, it would "burden all affiants with limitless cross-examination". The plaintiff's motion was a fishing expedition aimed at undermining their ability to conduct the litigation. The appeal was dismissed.
In Elgner v. Freedman Estate, 2014 ONSC 1989 (S.C.J.), the defendant brought a motion for particulars. A lawyer from the firm representing the defendant swore an affidavit in support of the motion. Plaintiff's counsel cross-examined on the affidavit and a number of refusals were given. On a motion for the refusals, the issue was whether the tendering of litigation counsel's affidavit in support of a motion amounts to "a total waiver of privilege over a lawyer's file." The Master held it did not and Justice Morgan upheld the decision on appeal.
The refusals were extremely broad, including things such as accounts, letter of advice, dockets, and the initial retainer. The plaintiff argued that since defence counsel swore they had no information (and therefore needed particulars), the only way to test their assertion was to ask to see everything. Plaintiff's counsel also argued they needed to see everything in order to test the assertion the affidavit was made for "no improper purpose". Justice Morgan disagreed, holding that the onus is on the party asserting the affirmative, not the party stating a negative. If a statement that an affidavit is sworn "for no improper purpose" requires cross-examination, it would "burden all affiants with limitless cross-examination". The plaintiff's motion was a fishing expedition aimed at undermining their ability to conduct the litigation. The appeal was dismissed.
Senin, 19 Mei 2014
Great post on certificates of insurance
Gene Killian of the Killian Law Firm offers an excellent blog post on the uselessness of certificates of insurance.
Jumat, 16 Mei 2014
U.S. District Court holds no bad faith sanctions in subrogation action where insured spoliated evidence
Fireman's Fund Insurance Company brought a products liability subrogation action against Bradford-White Corporation. It alleged that a design defect in a water heater manufactured by Bradford White caused a leak that damaged the property of its insured, Bell Partners, Inc.
After the leak was discovered, Fireman's requested that Bell retain the subject water heater. However, Bell disposed of the water heater without contacting Fireman's and before Bradford-White had an opportunity to inspect or test it.
Fireman's expert asserted that other water heaters in the same building were similar to the subject water heater. Bradford-White contested that, arguing that they were manufactured earlier and kept in outside closets instead of inside closets.
Bradford-White moved that the case against it be dismissed on the ground of spoliation of evidence, or, at the least, that the court preclude Fireman's from arguing at trial that any evidence or test results obtained from the other supposedly similar water heaters is relevant to the condition of the subject heater.
In Fireman's Fund Ins. Co. v. Bradford-White Corp., 2014 WL 1515266 (D. Mass.), the United States District Court for the District of Massachusetts held that Fireman's Fund did not act in bad faith. It had asked Bell to retain the heaters and Bell did not contact it before removing the heater. Fireman's failure to take additional steps to secure the heater was at most negligent. The court held that the appropriate spoliation sanction is an instruction to the jury that it may draw a spoliation inference against Fireman's Fund.
The court utilized a straightforward spoliation analysis. I was surprised that it did not address an argument that an inference can be drawn against Fireman's Fund because as the subrogee of Bell it stands in Bell's shoes. If Bell had brought its own claim against Bradford-White, would the court have analyzed the sanctions differently? I don't know offhand if there are any Massachusetts decisions on the issue, but it is certainly where I would have started.
After the leak was discovered, Fireman's requested that Bell retain the subject water heater. However, Bell disposed of the water heater without contacting Fireman's and before Bradford-White had an opportunity to inspect or test it.
Fireman's expert asserted that other water heaters in the same building were similar to the subject water heater. Bradford-White contested that, arguing that they were manufactured earlier and kept in outside closets instead of inside closets.
Bradford-White moved that the case against it be dismissed on the ground of spoliation of evidence, or, at the least, that the court preclude Fireman's from arguing at trial that any evidence or test results obtained from the other supposedly similar water heaters is relevant to the condition of the subject heater.
In Fireman's Fund Ins. Co. v. Bradford-White Corp., 2014 WL 1515266 (D. Mass.), the United States District Court for the District of Massachusetts held that Fireman's Fund did not act in bad faith. It had asked Bell to retain the heaters and Bell did not contact it before removing the heater. Fireman's failure to take additional steps to secure the heater was at most negligent. The court held that the appropriate spoliation sanction is an instruction to the jury that it may draw a spoliation inference against Fireman's Fund.
The court utilized a straightforward spoliation analysis. I was surprised that it did not address an argument that an inference can be drawn against Fireman's Fund because as the subrogee of Bell it stands in Bell's shoes. If Bell had brought its own claim against Bradford-White, would the court have analyzed the sanctions differently? I don't know offhand if there are any Massachusetts decisions on the issue, but it is certainly where I would have started.
Rabu, 14 Mei 2014
Court of Appeal Rejects Discoverability Argument
A recent example shows that the new summary judgment rule may be used in cases where plaintiffs claim they did not discover they had a claim within the limitation period.
In Yelda v. Vu, [2014] ONSC 2168 (C.A.), the plaintiff was injured in a motor vehicle accident in 2002. She did not commence an action until 2011. She alleged that she did not discover her injuries met the threshold for a claim until she had an x-ray of her back in 2009. A motions judge disagreed, and granted summary judgment dismissing the action. The plaintiff appealed.
The Court of Appeal dismissed the appeal. The plaintiff's own evidence was that she had "really bad" back pain "half the time" each month following the accident. She was never really pain free at any time, and at all times she attributed the pain to the accident. Apart from occasional visits to hospital emergency departments, the plaintiff took no active steps to investigate the back pain from 2002 to 2009. The motions judge held that it was implausible that a reasonable person would consistently take over the counter medication, have "really bad" pain, be unable to function a couple of days each month, and would find pain so bad as to need to attend the emergency department, yet fail to do anything to investigate the cause. The Court of Appeal held there was no error in the motion judge's finding.
In Yelda v. Vu, [2014] ONSC 2168 (C.A.), the plaintiff was injured in a motor vehicle accident in 2002. She did not commence an action until 2011. She alleged that she did not discover her injuries met the threshold for a claim until she had an x-ray of her back in 2009. A motions judge disagreed, and granted summary judgment dismissing the action. The plaintiff appealed.
The Court of Appeal dismissed the appeal. The plaintiff's own evidence was that she had "really bad" back pain "half the time" each month following the accident. She was never really pain free at any time, and at all times she attributed the pain to the accident. Apart from occasional visits to hospital emergency departments, the plaintiff took no active steps to investigate the back pain from 2002 to 2009. The motions judge held that it was implausible that a reasonable person would consistently take over the counter medication, have "really bad" pain, be unable to function a couple of days each month, and would find pain so bad as to need to attend the emergency department, yet fail to do anything to investigate the cause. The Court of Appeal held there was no error in the motion judge's finding.
Rabu, 07 Mei 2014
Plaintiffs Denied Costs of Jury Trial
A London judge recently denied costs to plaintiffs following a jury trial which saw them recover less than 10% of their claim.
In Mayer v. 1474479 Ontario Ltd., 2014 ONSC 2622 (S.C.J.), the defendant admitted liability for a 2008 motor vehicle accident. The action proceeded to a jury trial on damages. The Statement of Claim sought damages of $1.1 million, and mid-trial the prayer for relief was amended to $2 million. The jury awarded the primary plaintiff $137,000 (reduced to $116,000 after the deductible and collateral benefits), her daughter $3,300 (reduced to $0 after the deductible) and her husband $0, for a total recover of $119,300. The plaintiffs sought costs of $422,000.
Justice Leach went through the factors in r. 57.01. Some of the factors considered were:
1. The plaintiffs fell "drastically short" of the amounts claimed;
2. The time and resources devoted by the plaintiffs were disproportionate to what the case was worth, as determined by the jury;
3. There were disbursements for experts who either did not add much to the proceeding or overlapped with other experts;
4. The case was scheduled for 2 weeks and ran to 4 weeks, for which the plaintiffs were largely responsible; and
5. Various disbursements were not permissible in any event, such as a "day in the life" video which was not used, the cost of a trial that was adjourned by the plaintiffs, and the cost of a voluntary mediation.
The defendants made several offers; however, they were not r. 49 offers as they failed to separate interest from damages, did not make it clear whether the offer was global for all plaintiffs or severable, and were not clear as to whether the plaintiffs could retain future collateral benefits. But for the deficiencies in the offers, the defendants would have been entitled to partial indemnity costs in the amount of $181,000. Even though they were not r. 49 offers, the defendants' offers were taken into account in exercising the Court's discretion. Justice Leach held that each party should bear their own costs.
Mayer should be reviewed by counsel as guidance in making offers, as well as in deciding what resources should be put into a particular file.
In Mayer v. 1474479 Ontario Ltd., 2014 ONSC 2622 (S.C.J.), the defendant admitted liability for a 2008 motor vehicle accident. The action proceeded to a jury trial on damages. The Statement of Claim sought damages of $1.1 million, and mid-trial the prayer for relief was amended to $2 million. The jury awarded the primary plaintiff $137,000 (reduced to $116,000 after the deductible and collateral benefits), her daughter $3,300 (reduced to $0 after the deductible) and her husband $0, for a total recover of $119,300. The plaintiffs sought costs of $422,000.
Justice Leach went through the factors in r. 57.01. Some of the factors considered were:
1. The plaintiffs fell "drastically short" of the amounts claimed;
2. The time and resources devoted by the plaintiffs were disproportionate to what the case was worth, as determined by the jury;
3. There were disbursements for experts who either did not add much to the proceeding or overlapped with other experts;
4. The case was scheduled for 2 weeks and ran to 4 weeks, for which the plaintiffs were largely responsible; and
5. Various disbursements were not permissible in any event, such as a "day in the life" video which was not used, the cost of a trial that was adjourned by the plaintiffs, and the cost of a voluntary mediation.
The defendants made several offers; however, they were not r. 49 offers as they failed to separate interest from damages, did not make it clear whether the offer was global for all plaintiffs or severable, and were not clear as to whether the plaintiffs could retain future collateral benefits. But for the deficiencies in the offers, the defendants would have been entitled to partial indemnity costs in the amount of $181,000. Even though they were not r. 49 offers, the defendants' offers were taken into account in exercising the Court's discretion. Justice Leach held that each party should bear their own costs.
Mayer should be reviewed by counsel as guidance in making offers, as well as in deciding what resources should be put into a particular file.
Selasa, 06 Mei 2014
Superior Court holds that contractual choice of law clause does not apply to case over validity of policy term
Catlin Specialty Insurance issued two consecutive claims-made Professional and Pollution Legal Liability Insurance policies to AMSC and its subsidiary Windtec. The first policy had a policy period of April 1, 2010 to April 1, 2011.
On December 6, 2010, Ghodawat notified the insured that it was terminating a 2008 license agreement between the two due to technical problems with the wind turbine that was the subject of the agreement and that the insured had supplied and installed. Ghodawat leveled an accusation of gross negligence and stated that it would pursue a claim unless an amicable resolution was reached. Settlement discussions followed in February 2011.
In the meantime, the insured submitted an application for a second year of coverage with Catlin. In the application it denied any claim, suit, notice or action had been brought or that it was aware of any other circumstances or incidents which may result in a claim being filed against it. A new policy was issued without Catlin being informed of the Ghodawat allegations.
On May 12, 2011 Ghodawat commenced arbitration proceedings against the insured. The insured requested coverage from Catlin.
In Catlin Specialty Is. Co. v. Am. Superconductor Corp., 2014 WL 840693 (Mass. Super.), the Superior Court held that there was no coverage for the claim under either policy because the policy provided coverage only if a claim was both made and reported during the same policy period. The claim was made in the first policy period and reported in the second policy period.
The court noted that the purpose of the requirement that notice of a claim be given within the policy period is fairness in rate setting. Therefore an inquiry into whether an insurer has been prejudiced with respect to the particular claim, relevant to an occurrence policy, is irrelevant to a claims-made policy.
AMCS argued that under New York law coverage can be denied for breach of the notice provision only if there is prejudice. The court did not reach that issue because it held that under Massachusetts conflict of law doctrine Massachusetts law applies to the coverage dispute.
The court held that a choice of law clause in the policies, providing that the "policy shall be subject [to] interpretation under the law of the State of New York" did not apply because the disputed issue is not one of policy interpretation but the validity of the policy clause requiring that claims be made and reported in the policy period.
On December 6, 2010, Ghodawat notified the insured that it was terminating a 2008 license agreement between the two due to technical problems with the wind turbine that was the subject of the agreement and that the insured had supplied and installed. Ghodawat leveled an accusation of gross negligence and stated that it would pursue a claim unless an amicable resolution was reached. Settlement discussions followed in February 2011.
In the meantime, the insured submitted an application for a second year of coverage with Catlin. In the application it denied any claim, suit, notice or action had been brought or that it was aware of any other circumstances or incidents which may result in a claim being filed against it. A new policy was issued without Catlin being informed of the Ghodawat allegations.
On May 12, 2011 Ghodawat commenced arbitration proceedings against the insured. The insured requested coverage from Catlin.
In Catlin Specialty Is. Co. v. Am. Superconductor Corp., 2014 WL 840693 (Mass. Super.), the Superior Court held that there was no coverage for the claim under either policy because the policy provided coverage only if a claim was both made and reported during the same policy period. The claim was made in the first policy period and reported in the second policy period.
The court noted that the purpose of the requirement that notice of a claim be given within the policy period is fairness in rate setting. Therefore an inquiry into whether an insurer has been prejudiced with respect to the particular claim, relevant to an occurrence policy, is irrelevant to a claims-made policy.
AMCS argued that under New York law coverage can be denied for breach of the notice provision only if there is prejudice. The court did not reach that issue because it held that under Massachusetts conflict of law doctrine Massachusetts law applies to the coverage dispute.
The court held that a choice of law clause in the policies, providing that the "policy shall be subject [to] interpretation under the law of the State of New York" did not apply because the disputed issue is not one of policy interpretation but the validity of the policy clause requiring that claims be made and reported in the policy period.
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