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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] Those lawyers went to the mat to get justice done and while the outcome was positive, they came as close to the line of winning and losing as you can comfortably get.

Sadly, Evelyn Coulson, a short-term resident at Sunrise North Senior Living (“Sunrise”), was strangled to death when her neck was caught between a mattress and a halo device improperly attached to her bed. Sunrise told Mrs. Coulson’s family that she died of natural causes.  It was only later they learned the true cause of her death, evidenced by bruising on her neck.

Mrs. Coulson’s family commenced an action against a number of defendants, all of whom settled with the Plaintiffs prior to trial, except for Sunrise.  In his decision on costs, the Trial Judge noted that “Sunrise mounted a vigorous defence on virtually every issue before the court, right down to its position on costs.”.

In describing the trial, Justice Tzimas noted it took place over four weeks and the Court heard from 20 witnesses.  He described the trial as “emotionally charged”, “difficult” and “complex”.

Sunrise offered to settle with the Plaintiffs on the eve of trial for $175,000.  The Trial Judge concluded that the offer, made at the last moment, was nothing more than what Sunrise anticipated the trial would cost them and not a genuine acceptance of any wrongdoing.

The Plaintiffs’ lawyers repeatedly told the Court that the principal reason for proceeding with the trial was to make Sunrise accountable and responsible for its conduct in the Plaintiffs’ ordeal and for the way that Sunrise interacted with Mrs. Coulson’s children in the aftermath of their mother’s death.

At the conclusion of the trial, the jury found Sunrise 25% at fault for Mrs. Coulson’s death and they were required to pay $178,575 in damages to the Plaintiffs, a mere $3,575 more than the Plaintiffs could have obtained by settling without a four-week trial.  A win nonetheless, exposing Sunrise to the Plaintiffs’ costs.

In awarding costs to the Plaintiffs in the amount of $445,000, the Trial Judge accepted the submission that the only way for the Plaintiffs to obtain a renunciation of Sunrise’s conduct was to go to trial, concluding that “…Sunrise never really recognized its shortcomings and responsibilities to the plaintiffs, and more particularly, to Mrs. Coulson.”  In his decision, Justice Tzimas commented on Sunrise’s approach, noting:

As I read and re-read Sunrise’s submissions I had to ask time and again, who was the wrongdoer here?

This was risky business.  There is no doubt about that.  Not every lawyer, law firm, or client will be prepared to risk it all, no matter how strong their case or the need for accountability.  Risk like that takes guts and isn’t for the faint of heart.

For lawyers or clients more risk averse, or even counsel like those in Yelland, legal expense insurance is available to help eliminate or reduce the downside when your clients are equally deserving of their day in court and where the defendant’s conduct is equally deserving of condemnation.

Legal expense insurance can insulate the Plaintiff from a cost award, allowing them to pursue equally meritorious claims where a defendant has acted egregiously.  At the same time, lawyers can protect their own financial investment in the case.

Winning by $3,575 was a whisper away from a loss. In this case, a loss would have meant that instead of receiving costs of $445,000, the Plaintiffs’ lawyers[2] were risking their own disbursements of $88,000, their fees, their time and the Plaintiffs could owe Sunrise its trial costs in the range of $150,000.  How could that ever be right?

Every lawyer has a tool kit of resources they utilize to enhance prospects of a win.  Legal expense insurance is one of those tools that can help make all the difference.  Hopefully the Coulson family will now have closure with the end of this case and are thankful in their counsel and the result.  Justice was done.

 

References:

[1] Yelland v. Sunrise et al. 2019 ONSC 2842 (“Yelland”)

[2] Michael Smitiuch and Luke Hamer of Smitiuch Injury Law

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