Recently we have seen a trend towards intolerance by the Courts of insurers' tactics. In the case of Persampieri v. Hobbs et al., an 84 year old plaintiff brought an action for injuries as a result of being rear-ended in a motor vehicle collision. The Defendant admitted liability but had explained that this claim was in the Insurer's Defensible Program and that the only offer to settle would be $0.00. The decision of the Defendant to not engage in meaningful settlement negotiations forced the plaintiff to proceed to Trial by Jury.
The Jury awarded nearly $70,000 in damages, yet with deductions for the statutory deductible and accident benefits, the net award to the Plaintiff was just over $20,000. This result was over double the Rule 49 offer served by the Plaintiff before trial. Justice Sanderson in deciding the appropriate costs of the action made a number of comments with respect to the importance of access to justice and the expenses involved in pursuing justice. Justice Sanderson awarded the plaintiff over $200,000 in costs, which represents over 10x the net jury award.
Justice Sanderson explained that in this case, to use the strict application of the proportionality principle would, in effect, have the opposite result of fostering access to justice. Ultimately, it would serve to undercompensate a plaintiff for costs that were legitimately incurred to further the litigation. Justice Sanderson notes that the Insurer bore the foreseeable risks of the costs and the potential of losing at trial. The Insurer demonstrated a total unwillingness to discuss settlement based on its decision to use its defensible program. She states that if a reduction of costs were to be awarded in proportion with the net result to the Plaintiff, it would serve to incentivize insurers to pursue strategies to resist settlement on modest claims.
In the case of S.P. v. RBC General Insurance Company (now Aviva), FSCO Arbitrator Jeff Musson condemned the Insurer for the use of bully tactics. The Arbitration was on the issue of whether the Applicant met the definition of Catastrophic Impairment. The Applicant was 17 years old at the time of the collision in 2010 and suffered significant psychological symptoms following, including suicidal ideation.
During the course of the arbitration, the Insurer went to lengths to try to admit evidence of the applicant's mother's medical history of bipolar disorder to demonstrate the applicant had a pre-accident predisposition by way of family history. The Insurer was pressing for these documents to be admitted into evidence despite there being no medical evidence of the Applicant having pre-existing psychological issues, nor conclusive evidence from treating doctors that the Applicant did not meet the test for a diagnosis of bi-polar post-accident.
The Insurer also employed tactics admitting into evidence a photoshoot from the Toronto Sun Sunshine Girl, suggesting that they were of the Applicant, when in fact they were not. The Insurer also attempted to put forward a theory that the applicant was involved in a love triangle with two owners of a company that she had briefly worked for, despite both owners and the Applicant denying such allegations. Evidence was also led that insurer's counsel told the Applicant that she was "too pretty to be sick", which caused the Applicant further distress.
Arbitrator Musson concluded that the Insurer in this case had overstepped its bounds on numerous occasions. It was found that the Insurer's conduct with respect to summonsing various witnesses was considered to be borderline harassment. The Investigator hired by the Insurer attempted to serve witnesses in a hostile and confrontational manner, threatening the witnesses stating that they would be sent to jail if they did not attend the hearing. It was found that counsel for the insurer intentionally misled a Judge in the Superior Court of Justice with respect to witnesses failing to attend the hearing in order to obtain a Bench Warrant. This resulted in Arbitrator Musson not accepting the position of the Insurer and accepting the position of the Applicant.
From a review of both cases, it is clear that the Court is no longer tolerating the extreme tactics that insurers sometimes employ. It also demonstrates a willingness of the Court to expose and punish insurers for strategies that prevent access to justice in order to try to even the playing field.
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