“Baffling” Defence Position Results in Significant Cost Award

It’s old news that auto insurers aggressively defend personal injury lawsuits in Ontario, but are the Courts pushing back with escalating cost awards when they lose? It might seem so based on the recent decision of St. Marthe v. O’Connor [1] (“St. Marthe”) where the Court awarded the Plaintiff $300,000 in costs plus HST and […]

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ATE Legal Expense Premium a “Compensable Disbursement”

The battle over who pays the premium for After the Event Insurance (“ATE”) has been raging for a few years now as lawyers and judges consider how ATE fits within personal injury costs and disbursements.  In the most recent case on point, Stewart et al. v. Wood et al.[1] (“Stewart”), we see the Court clearly […]

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Legal Expense Insurance and the Risky Business of “Winning”

Good lawyers can make all the difference; lawyers with grit and determination, those who care enough about an outcome to risk their time and money to see justice done.  While people may be quick to make lawyer jokes, the risk taken by the lawyers in the recent case of  Yelland v. Sunrise was no joke.[1] […]

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Omega ATE Policyholders have clear advantage in the wake of Cozzi v Szot

Canadian personal injury lawyers have a choice when it comes to legal expense insurance.  But, those with the foresight to protect their whole portfolio with an Omega policy are sitting pretty following the recent decision in Peter B. Cozzi Professional Corporation v. Szot[1] (“Cozzi”), secure in the knowledge that what happened in Cozzi won’t happen […]

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Legal Liabilities Claims 101

“You cannot be held liable for anything that you have no power over. Guilt, shame and blame make no sense when circumstances are beyond your control.” – Kate McGahan, Jack McAfghan: Return from Rainbow Bridge Tort law forms the foundation of most liability insurance claims and most, if not all, insurance claims allege the tort […]

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New legal expense insurance trend represents challenge for PI lawyers

New legal expense insurance trend represents challenge for PI lawyers By AdvocateDaily.com Staff Legal expense insurance (LEI) was initially designed to increase access to justice for injured plaintiffs who would otherwise be unable to proceed to trial, but a recent development related to how insurers approach the product should concern all stakeholders, says Amanda Bafaro, […]

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Plaintiff victory over aviva

Aviva ordered to pay significant costs to elderly plaintiff protected by LISC legal expense insurance policy.1

In February, 2009, Maria Persampieri was a passenger in a car when it was rear ended. She was 76 years old at the time of the accident. Her quest for damages would span almost a decade against the defendant insurer Aviva Canada (“Aviva”), whom relying on their notorious defensible program had determined that no offer to settle would be made.

Throughout the course of her litigation, Ms. Persampieri received a consistent and recurring message from Aviva: agree to a dismissal of the action without costs or proceed to trial (notwithstanding that liability was admitted at a 2015 mediation). Aviva rejected all of Ms. Persampieri’s offers to settle, including a $20,000 Rule 49 Offer in March 2017 and her last, a Rule 49 offer to settle for just $10,000, net of the applicable statutory deductible plus partial indemnity costs and pre-judgment interest.

Seven years post accident and now 84 years old, Ms. Persampieri, backed by a legal expense insurance policy from LISC, proceeded to trial for two weeks in June 2017.

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Superior Court decision on costs ‘key’ for access to justice

A recent Ontario Superior Court of Justice decision on costs in a personal injury matter has “massive implications” for legal cost protection providers such as LISC Risk Management Inc. and, more importantly, will improve access to justice for plaintiffs, says John Rossos, chairman and CEO of the company.

“This is an authoritative ruling,” he tells AdvocateDaily.com.

The decision, written by Justice David Salmers, explicitly shifts the burden of paying for legal expense insurance to the defendant, as an assessable cost where the plaintiff has a successful legal claim.

The judge wrote that he disagreed with the defence counsel submission that the plaintiffs’ disbursement for costs insurance not be allowed.

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Judge Requires Defendant to Pay LISC Legal Expense Insurance Premium

Fresh on the heels of the recent win for plaintiffs on the issue of disclosure in Jamieson v. Kapashesit1, we are pleased to announce another resounding plaintiff victory on the legal expense insurance front. In what will no doubt be a game changing decision on point, in Armstrong v Lakeridge Resort Ltd.2, Ontario Superior Court Justice Salmers rejected the existing case law, ordering the defendant to pay the LISC Legal Expense Insurance premium.

Since the introduction of legal expense insurance several years ago, the plaintiff personal injury bar has unsuccessfully sought the recovery of premiums as an assessable disbursement in successful trial or settlement outcomes. In a disappointing decision in 2015 representing the Court’s first (albeit cursory) consideration of the issue, Madam Justice Milanetti found in Markovic v. Richards3 that the premium was not payable by the defendant, noting that it was “nothing more than a discretionary expense”. Markovic has been successfully relied on by defence counsel ever since as the seminal decision on this issue.

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A Solid Win for Plaintiffs on Legal Expense Insurance

There has been great debate in recent years over the issue of disclosure of legal expense insurance (LEI) to defendants who have relentlessly pushed for full disclosure of plaintiffs’ LEI policies (also known as “After the Event” or “ATE” insurance). There have been decisions both for and against, culminating in the January 2017 decision in Fleming v Brown 2017 ONSC 1430 (“Fleming”) which held that a legal expense insurance policy must be disclosed pursuant to Rule 30.02 of the Rules of Civil Procedure. Most lawyers presumed this was the end of the debate, and with it the strategic benefit of maintaining privilege on the terms and details of their clients’ coverage.

Fortunately, Fleming was not the last word!

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