Because trials can be expensive and risky, most cases never go to court. Instead they are usually settled through the careful collection of evidence and forthright (sometimes forceful) negotiations.
When the claim is significant and the evidence is difficult or the other side simply won’t be reasonable, however, it’s important to have a lawyer who’s willing to “go to the wall” for you. He or she must be willing and able to run a case to trial to see justice done.
Keeping in mind that the outcome of a lawsuit always depends on the particular issues, facts, and players involved, here are some cases Faith has taken to court. Some of them have been instrumental in shaping the law in British Columbia.
Freedom for the wolves has often meant death to the sheep.
Special costs (full indemnity) awarded to plaintiff
The Court of Appeal upheld the Trial decision that special damages for the plaintiff, sometimes called solicitor and client costs, may be given where an insured person is required to litigate in order to enforce a disability contract and the particular circumstances of the case make it so the fundamental purpose of that contract would not be fulfilled if such costs were not given. (Note: This was a separate proceeding based on the case below. While Faith provided the affidavit evidence and arguments, the matter was argued by Todd Brown.)
Plaintiff fully disabled from MS despite concurrent illicit drug use
Despite the impact of the plaintiff’s drug use, the court found the MS rendered her totally disabled for the purposes of her disability insurance claim. It also awarded damages for emotional distress caused by the denial of her benefits, such distress going beyond that caused by the MS and drug use.
Special costs (full indemnity) awarded to plaintiff
Special damages for the plaintiff, sometimes called solicitor and client costs, essentially give the plaintiff full indemnity for the cost of running a lawsuit. They may be given to punish a defendant for reprehensible conduct, but this case affirms that they may also be given Where an insured person is required to litigate in order to enforce a disability contract, and the fundamental purpose of that contract would not be fulfilled if such costs were not given. (Note: This was a separate proceeding based on the case below. While Faith provided the affidavit evidence and arguments, the matter was argued by Todd Brown.) The insurer is appealing this costs decision.
In this case, the insurance company learned it was not enough to reinstate the plaintiff’s disability claim a few days before trial. The judge awarded punitive damages because Desjardins did not evaluate evidence of the plaintiff’s disability fairly and it did nothing when asked to produce a tape of a psychiatric assessment.
In this follow-up decision, the trial judge awarded special costs (full indemnity costs) because of Desjardins’ breach of its duty of good faith.
Evidence of MTBI and chronic pain limit future earnings and enjoyment of life
A young man was found to have a mild traumatic brain injury (MTBI) and chronic pain, severely limiting his future income earning capacity and enjoyment of life. Awarded $1.2 million.
Loss of future earning capacity
A young carpenter is injured in a motor vehicle accident. He is off work for several months, then returns to work and doesn’t miss a day of work up to the time of trial. But medical experts say he shouldn’t continue to work as a carpenter because of the injury to his back. The court awarded $150,000 in damages for the plaintiff’s lost income earning capacity.
Fast track litigation
Sometimes, the need for disability benefits is urgent. In this decision, the court dismissed the insurer’s application to adjourn the trial and remove the action from Fast Track on the basis that the interests of justice were best served with the Fast Track procedures.
Holding insurers responsible for systemic bad practice
This case confirms that plaintiffs can hold insurers accountable not only for wrongs committed on one file, but for systemic bad practices.
Releasing judgment funds pending an appeal
When ICBC lost its case first at trial, then in the Court of Appeal, it argued it still didn’t have to pay the trial judgement because it was still applying for leave to appeal to the Supreme Court of Canada. The court ruled that no, the monies should be paid out.
Underinsured motorist coverage
This case interpreted the underinsured motorist protection (UMP) provisions to give coverage to a foster child, severely injured in a motor vehicle accident.
Fibromyalgia and chronic fatigue syndrome
This case made it possible for people suffering from fibromyalgia to prove they were disabled without the sort of “objective medical evidence” insurance companies often demand.
Rescision of an existing insurance policy
When Unum attempted to rescind to a disability insurance policy, they were not only forced to reinstate it, but were also punished with special costs.
Disability insurance – mental distress award + bad faith claim
This case establishes the special nature of disability contracts as “peace of mind” contracts whose breach (not paying a valid disability claim) can give rise to a claim for mental distress without needing to prove an independent actionable wrong. For a discussion of the punitive damages aspect of the claim, which the Supreme Court ruled was up to the trial judge to find and that he had not done so in this case, check out Faith’s article on Litigating Disability Insurance Bad Faith Claims.
Disability insurance – clarifying when a limitation period starts running
Sometimes even the best facts and arguments can’t overcome problems in the law. Faith took these two cases to the Court of Appeal at the same time to argue the same issue: that the limitation period for disability insurance claims was not clear to the person insured, and that insurance companies unfairly took advantage of this fact to deny their claims and close their files. In one of these actions, the insurance company had declared that a limitation period had expired even before the plaintiff was diagnosed. See the facts and arguments advanced here.
Unfortunately, while two of the three judges thought there was a lack of fairness which ought to be addressed, they felt that this was a problem that the legislature should address, not the courts.
During a review of the law which followed shortly thereafter, Faith forwarded her concerns to the Attorney General, and, on July 1, 2012, a new Insurance Act came into effect in BC. It lengthens the limitation period to two years, requires the insurers to let insureds know of the limitation period, and provides a number of other protections for the public.
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