Our first case this month deals with a Defendant’s request for a second IME when new and significant medical issues are raised by the Plaintiff’s physicians that could not have
Our second case this month deals with a motion to set aside a Final Release on a number of grounds, including duress, mistake of fact and unconscionability.
Our third case this month deals with the duty of an insured to disclose a material change in risk to her insurer.
Barbosa v. Castillo, 2010 BCSC 212
This case arises from injuries sustained by the Plaintiff in a motor vehicle accident. At the request of the Defendant, the Plaintiff attended an independent medical examination conducted by an orthopedic surgeon. Following the IME, the Plaintiff disclosed a medical report prepared by a neurologist. The Defendant sought to respond to the medical report by retaining a neurologist to conduct a further examination of the Plaintiff. The Plaintiff was not in a position to consent to such further examination, and an application was made to a Master pursuant to Rule 30 of the British Columbia Rules of Court. The Master denied the Defendant’s request for a further examination and the Defendant appealed.
In hearing the appeal, Schultes J. stated that the neurologist retained by the Plaintiff uncovered new and significant medical issues that neither the Defendant’s orthopedic surgeon nor the Defendant would have been expected to foresee. To preclude the Defendant from involving his own neurologist would effectively foreclose any exploration of the opinion produced by the Plaintiff’s neurologist, an opinion which could be determinative of several kinds of damages claimed by the Plaintiff.
Davis v. Cooper, 2010 ONSC 4230
The Plaintiff was involved in a motor vehicle accident in June 2001 and brought an action against the at fault motorist and her own insurer for coverage under the underinsured/unidentified motorist coverage. Wawanesa Mutual Insurance Company was added as a statutory third party.
Trial of the action began on October 2, 2009 and at the request of the Plaintiff, a mid-trial pre-trial conference was commenced on October 8, 2009. On October 9, 2009 a settlement was reached, the Plaintiff signed a Final Release and the presiding judge endorsed the record and a Consent Order was taken out dismissing the action and the third party action without costs.
The Plaintiff brought this motion to set aside the Release, Endorsement and Consent Order. The substance of her complaint was based on allegations of duress, mistake of fact and unconscionability. She also asserted that her lawyer failed to explain the contents of the release to her, that she had a lack of capacity to enter into the contract and that she did not provide consent to the signing of the Consent Order.
In dismissing the motion, Allen J. addressed each of the complaints presented by the Plaintiff. With respect to the allegations of duress, mistake of fact, lack of capacity and the failure of counsel to explain the contents of the release, Allen J. held that there was no evidence to show that Wawanesa or the other defendants were aware or had knowledge of the alleged occurrence and therefore did not provide grounds to invalidate the Release. In addressing the allegation of unconscionability, Allen J. relied on the strict requirements for asserting such a claim, as set out in Bjelakovic v. Accenture Global, 2008 CarswellOnt 3954. As the Plaintiff in the present case did not meet the requirements there was no basis to set aside the release due to unconscionability.
Finally, with respect to setting aside the Endorsement and Consent Order, Allen J. held that the Plaintiff was bound by the acts of her counsel and as there was no other evidence presented, the Consent Order and Endorsement remained valid.
Algarvio v. Allstate Insurance Co. of Canada, 2010 ONCA 790
This was an appeal from a trial decision granting the Respondent’s son coverage under an automobile insurance policy.
At trial, a jury found that the use of the Respondent’s motor vehicle by her son, aged 16, after his licence was changed from G1 to G2 did constitute a material change in risk, but that she had satisfied the obligation of promptly notifying Allstate or its agent of the material change in risk. On appeal, Allstate argued that there was no evidence on which a jury could have answered the second question in the affirmative.
The Court of Appeal upheld the jury’s decision and stated that there was evidence that the Respondent had informed Allstate when her son received a G1 driver’s licence and was told to call again when he received his G2 licence; however, she was never informed that her son would not be covered as a G2 driver until she notified Allstate of the change. In addition, she attempted to call the Allstate agent three or four times when her son received his G2 licence, without success, and assumed that a raise in premiums indicated that her son had been added to the policy. The Court held that on the basis of the Respondent’s evidence it was open to the jury to conclude that a reasonable person in the circumstances described by the Respondent would not have known that Allstate would regard the change in her son’s licence as a material change in risk requiring notification to maintain coverage. The appeal was dismissed and costs were awarded to the Respondent in the amount of $18,442.93.