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. […]Read more
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 (“Cozzi”), secure in the knowledge that what happened in Cozzi won’t happen […]Read more
“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 […]Read more
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, […]Read more
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.Read more
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.Read more
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.Read more
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!Read more
Plaintiffs with tort and Accident Benefit claims should prepare for increased reductions in their awards for damages following the recent Court of Appeal Decision in El-Khodr v Lackie, 2017 ONCA 716 (“El-Khodr”). In the decision, the Court determined that the principle established in Bannon v McNeely (1998), 38 O.R. (3d) 659 (C.A.) (“Bannon”), of matching “apples to apples” in regards to the categories of awards and reduction of the same is no longer relevant.Read more
At long last, the Court of Appeal has spoken.
We have previously discussed changes to s. 258.3(8.1) of the Insurance Act that on January 1, 2015 reduced the pre-judgment interest rate for non-pecuniary damages from 5.0% to the bank rate at the time the proceeding commenced.
In El-Khodr v Lackie, 2015 ONSC 4766 (“El-Khodr”) the Court was asked to determine if this reduction applied to cases commenced prior to the amendment date. The trial judge determined, to the relief of all plaintiffs with personal injury actions commenced before the amendment date, that the amendment did not apply retrospectively. In the absence of express or implied intention, the Court held that the change in pre-judgment interest rate was to be enacted on a go-forward basis, and to find otherwise would be a windfall for insurance companies and cause disadvantage to insured persons. This was a welcome decision to plaintiff personal injury lawyers already battling defendant insurers on the retroactive application of the rate reduction.
As is often the case with law, however, a conflicting decision followed just months later in Cobb v Long Estate, 2015 ONSC 6799 (“Cobb”). The trial judge in Cobb exercised his discretion under s.130 of the Courts of Justice Act and set a pre-judgment interest rate at 3%.Read more