Canada: First Party Claims: Pleadings - Part 6 of 7

First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer

We have compiled a non-exhaustive list of considerations for the drafting of pleadings for first party actions between the insurer and insured:

I. Plaintiff/Insured

  1. Identify the relief sought, for example:
    a. Declaration that the insurer has a duty to duty to defend and/or duty to indemnify the insured; and/or
    b. Payment/Reimbursement/Compensation for the loss under the policy;
  1. Describe the insurance policy, including policy number, dates it was in force, title (i.e O.A.P. 1, residential, etc.), and where relevant, whether it is an occurrence or claim based policy;
  1. If the plaintiff is not a named insured, state the reason why this person is considered an insured under the policy (for example, a "dependent relative" under the OPCF 44R or a person who had consent to drive the vehicle involved in the motor vehicle accident) â€" it is important to note that an insurance contract is between two parties. It is rare that an individual who is not a party to the insurance contract can sue the insurer;
  1. Indicate that the premium was paid (if it was);
  1. Provide information about the insurance product that was being purchased (i.e. coverage that included SABs, third party liability, coverage for water loss, fire loss, etc.) including purchase of peace of mind;
  1. Explain what happened and what is the loss;
  1. Quote from the insurance policy to show what clause in the policy indicates this loss was covered (do not forget to review any applicable endorsements or added coverage);
  1. Indicate the date that the plaintiff requested payment from the insurer;
  1. Indicate the date of filing the Proof of Loss, time available to insurer for payment, if applicable;
  1. Indicate the date of the insurer's refusal to pay or the fact that, despite the plaintiff's request, the insurer has not paid;
  1. Consider whether the plaintiff has additional coverage with any other insurer, such as excess insurance, umbrella insurance or overlapping policies and whether that insurance company should be added as a party to the action;
  1. Consider whether the denial of the insurance coverage may have been caused by the negligence of the broker who sold the insurance policy to the insured; consider whether the broker should be added as a defendant;
  • Consider that some companies that provide insurance products and/or claims management are only managing these on the behalf of the insurer and should or should not be named as a defendant â€" write a letter to this company requesting additional details to avoid costs; consider commencing your action well before the limitation period to have time to amend your pleadings should the wrong defendant be named;
  1. Consider that some of the pleadings may open the door to an unnecessary and embarrassing discovery that may not be wanted by your client; make sure you speak to your client about the amount of disclosure that may be required for this action:

    a. Example 1: if it is pleaded that the plaintiff incurred credit card interest as a result of the loss, the credit card statements and contracts are relevant and will need to be produced; or

    b. Example 2: advancing a spousal FLA claim for loss of companionship when there is trouble between the spouses (i.e. one spouse is having an affair or domestic violence);
  1. Consider whether the Statement of Claim should be drafted in French. It is important that your client understands the claim, and if his/her first language is French, either draft it in French or translate it for your client if he/she does not understand English well. Drafting in French will automatically make this a bilingual action, so interpretation services are covered by the Province. This is important as well.

    PRACTICE TIP 2: if the relief sought by the insured is a declaration that the insurer has a duty to defend and/or duty to indemnify, the insured should consider keeping the insurer regularly updated about the proceedings in which the insured is being sued. The insured should invite the insurer to attend all mediations, settlement conferences and other proceedings.
    PRACTICE TIP 3: if your practice is largely based on insurance defence work, avoid starting a first party action against a client of your firm. Review the Rules of Professional Conduct, in particular Rule 3.4 and any agreements or guidelines with that insurer. As a lawyer, you want to avoid any allegations of conflict or future business issues with the insurance company.

II. Defendant/Insurer

  1. Plead whether the insurance policy was issued or not, was the issuance based on material misrepresentation in the application process;
  1. Consider whether you should admit that the plaintiff is insured under the policy. If the issue is a breach of the policy, admitting that the plaintiff is an insured may be a useful argument against a claim for bad faith (i.e. not taking an unreasonable position, not adding costs to the insured's claim, etc.). However, if the issue is that the plaintiff is not insured under the policy, specifics need to be pleaded;
  1. Consider whether this action premature, i.e. has a Proof of Loss been signed by the insured prior to suing, should this go to appraisal, has mediation been held if it is required beforehand, has the insurer been given sufficient information and opportunity to investigate the claim, has the insured cooperated with the insurer throughout;
  1. Indicate details of the insured's compliance with the policy that might be at issue, i.e. whether the premium was paid on time, whether the loss was reported within a reasonable amount of time or within the deadline set out in the contract, whether the insured has failed to act in good faith;
  1. Quote the insurance policy including the insuring agreements and any relevant exclusions to show why the loss is not covered.
  1. Plead details on how the insurer did in fact conform to the policy, requirement of good faith, etc.;
  1. Plead details on why there is no coverage for the loss or no duty to defend and/or to indemnify (i.e. excluded driver, breach of contract, misrepresentation of contract, fraud, etc.);
  1. Specify: was there a denial, when was the denial, when was the plaintiff informed of the denial, etc.;
  1. Be very careful when pleading fraud - it can create a claim for bad faith, and be careful to comply with Rule 25.06(8) and plead particulars;
  1. Consider whether the brokers should be added as a third party (if they are not already a party in the action);
  1. Consider whether a crossclaim is required; if not, do not do one to avoid incurring unnecessary costs.

III. Reply or amendment to Statement of Claim - Plaintiff/Insured

  1. You may wish to reply that there was waiver of certain conditions pleaded in the Defence, request relief from forfeiture, plead estoppel, etc.
  1. The insurer may also commence an action or commence a counterclaim against the insured for breach of contract, misrepresentation, fraud, etc. For example, if the insured misrepresented his pre-accident income in an accident benefits matter to obtain better income replacement benefits, the insurer can pursue an action against the insured for reimbursement of the benefits paid out.
  1. Once the pleadings have been drafted, and at each stage of the action, consider whether summary judgment may resolve any issue in dispute. In our experience, motions for summary judgment on first party claims are very useful, as the arguments in the motion are often legal or contractual ones and there is no genuine issue for trial.

Go to Affidavit of Documents - Part 7

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions