Information contained in written statement insured gave to insurer – is the insured required to provide this information at examination for discovery?

In Sangaralingam v. Sinnathurai, [2011] ONSC 1618, when examining the defendant for discovery, counsel for the plaintiff requested that the defendant provide information contained in the written statement he gave to his insurer following the motor vehicle accident. Defendant’s counsel refused to provide the statement or the contained information on the grounds that it was protected by litigation privilege.

A motion was made to a master who ruled that the defendant was not required to provide the information in the statement on the basis that the defendant had already been examined for discovery at length and the plaintiff also received a copy of the statement the defendant provided to the police following the accident. Therefore, such questioning would be solely with respect to the credibility of the defendant.

The master’s decision was appealed. The motions judge required the defendant to answer the question. The motions judge relied on the principle that questions on discovery seeking the facts of a party’s case do not offend privilege even though the source of the facts is a document over which privilege is being asserted.

There was a further appeal to the Divisional Court. Justice Herman referred to the test for when litigation privilege should be set aside as provided by Justice Ducharme in Kennedy v. McKenzie, [2005] O.J. No. 2060: where “the materials being sought are relevant to the proof of an issue important to the outcome of the case and [that] there is no reasonable alternative form of evidence that can serve the same purpose”.

Upon application of this test to the case at hand, Justice Herman concluded that in the course of the examination for discovery, counsel for the plaintiff had the opportunity to ask questions of the defendant that were relevant to the material issues. The defendant was co-operative and was not withholding information. Therefore, there was an alternative means available to obtain the relevant information and as a result litigation privilege should not be set aside.

Also, with respect to whether the request was directed solely to the credibility of the defendant, Justice Herman stated that it was his opinion that the sole purpose of the question being asked was to find out what the defendant told his insurer and therefore was asked for the sole purpose of credibility.

Pennsylvania Federal Court Addresses Coverage for Blast Fax Suit

In Maryland Casualty Co. v. Express Products, Inc., 2011 U.S. Dist. LEXIS 108048 (E.D. Pa. Sept. 22, 2011), the United States District Court for the Eastern District of Pennsylvania considered whether an insured was entitled to coverage under a series of general liability policies for an underlying “blast fax” suit.

The insured, Express Products, Inc. (“Express”), was as a defendant in a class action filed in an Illinois state court alleging violations of the Telephone Consumer Protection Act (“TCPA”) and the Illinois Consumer Fraud Act based on Express’ transmittal of thousands of unsolicited advertisements via facsimile.  Express’ insurers, Cumberland Mutual Fire Ins. Co. and Maryland Casualty Company, denied coverage under their respective policies’ property damage coverage (Coverage A) on the basis that the underlying suit did not allege an occurrence.  The insurers also denied coverage under their policies’ advertising injury coverage (Coverage B) on the basis that the underlying suit did not fall within the definition of any of enumerated offenses constituting “advertising injury.” 

After determining that Pennsylvania law governed the policies, the court turned to the coverage issues under the policies two coverages.  In considering Coverage A, the court agreed that the underlying suit alleged property damage “through the use of paper and toner, and the loss of use of tangible property that is not physically injured, by tying up the fax.”  The court nevertheless concluded that the underlying suit did not allege property damage arising out of an “occurrence” because the suit alleged that Express intentionally sent the faxes.  While the underlying suit did allege that Express knew or should have known that it would cause property damage to the plaintiff class, such an allegation, in and of itself did not preclude a finding of intentional conduct since the suit also alleged that Express intentionally sent unsolicited facsimiles.  The court also rejected the insured’s argument that the mere inclusion of the word negligence in the underlying suit triggered a defense obligation. Plaintiffs’ use of this word, explained the court, was to allege that even if Express’ conduct was negligent, its conduct was still in violation of the TCPA.  This did not rise to the level of an actual allegation of negligent conduct.  The court further held in passing that the policies’ expected and intended exclusions applied, since the complaint alleged that Express sent the facsimiles knowing that such would result in the use of plaintiffs’ fax, toner, paper and ink.

New York Court Addresses Number of Occurrences for Molestation Claim

In its recent decision Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2011 N.Y. App. Div. LEXIS 6432 (2d Dep’t. Sept. 20, 2011), a New York appellate level court had occasion to consider various coverage issues arising out of a sexual molestation claim; specifically, number of occurrences and allocation of loss.

The claimant in the underlying suit alleged that she had been molested for a period of seven years “at different times during the day and week, and at multiple locations.” While the insured had primary general liability coverage available for each of these years, each of the policies had a sizable self-insured retention.  This prompted the insured to contend to the position that the underlying matter, which settled for $2 million, could be allocated solely to two of the triggered policy periods, based on a “joint and several” allocation theory.  The trial court held against the insured, holding that the loss was properly allocated among all triggered policy years, and that the insured was responsible to pay the fully retention amount in each of those years.

On appeal, the court agreed with the lower court, noting that a “joint and several” theory of allocation had long since been rejected by New York courts (see e.g., Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 746 N.Y.S.2d 622 (N.Y. 2002)) and was “inconsistent with the unambiguous language of the … policies providing coverage for bodily injury that resulted from an occurrence ‘during the policy period.’”  The court explained that it was not possible to isolate what extent of the underlying plaintiff’s injury happened during any single policy period, and as such, the appropriate method of allocation was on a pro rata basis across each of the policy periods.   Central to the court’s decision in this regard was its finding that the molestation could not be considered a single occurrence, but rather multiple occurrences since “it cannot be said that there was a close temporal and spatial relationship between the acts of sexual abuse.”  As such, the court concluded, each of the insured’s policies over the entire seven-year period was triggered and the insured was be responsible for satisfying a full self-insured retention in each of these periods.

The Canadian Institute of Actuaries’ Recommendations to the Rules Committee on the Prescribed Discount Rate and Prejudgment Interest

On June 1, 2011 the Canadian Institute of Actuaries (CIA) submitted their observations and recommendations to the Civil Rules Committee with respect to the Committee’s review of rules 52.09 and 53.10 of the Rules of Civil Procedure (“the Rules”). The CIA reviewed these rules from the perspective of today’s economy − a low interest rate environment.

Rule 52.09(1) lays out how the discount rate is to be calculated for awards for future pecuniary damages in order to account for investment and price inflation rates. The CIA pointed out that the prescribed interest rate in Ontario for the first 15 years is lower than any other province or territory where discount rates are prescribed for this purpose. As a result, since interest rates are at historically low levels, a plaintiff will receive a higher settlement in Ontario than a plaintiff in another province or territory.

Rule 52.09(1) provides for a negative adjustment of 1%. This negative adjustment is a result of a belief in 2000 that rates of return for real return bonds were higher than the true underlying expected real rate of return. The CIA believes that this may not be a valid justification in today’s economic environment but noted that this negative adjustment could serve a valid public policy objective by providing a margin for adverse investment contingencies.

The CIA noted that there is a potential for misinterpretation of rule 53.09(1) and recommended that the wording be altered slightly to clarify that there is not only one discount rate to be applied to one particular loss under 53.09(1) and to make it clear that the rate prescribed by 53.09(1)(a) is to be used in discounting all losses.

Lastly with respect to rule 53.09(1), the CIA suggested that the Committee consider prescribing a nominal discount rate that could be used in situations when a real discount rate would be inappropriate.

Rule 53.10 sets the prejudgment interest rate for non-pecuniary damages at 5% per year. The CIA acknowledges that this rate is reasonable from a public policy perspective as it motivates settlement and compensates successful plaintiffs for delays in resolution. However, the CIA suggests that a floating rate based on yields on GICs with an adjustment may be a consideration. They recognize however that this would largely increase the complexity.

Virginia Supreme Court Holds Coverage Unavailable for Climate Change Suit

In AES Corp. v. Steadfast Ins. Co., 2011 Va. LEXIS 185 (Va. Sept. 16, 2011), the Supreme Court for Virginia addressed the issue of whether an insured was entitled to coverage for an underlying climate change lawsuit. 

The Steadfast litigation arose out of the climate change suit Native Village of Kivalina v. ExxonMobil Corp., et al., filed in the United States District Court for the Northern District of California.  The Kivalina lawsuit was brought by the Native Village of Kivalina against various energy-industry defendants, and alleged that defendants’ various operations resulted in the emissions of carbon dioxide and other greenhouse gases into the atmosphere, which in turn contributed to global warming. Plaintiffs further claimed that climate change would result in rising ocean levels, which in the near future would cause their native village in Alaska to be completely submerged and rendered uninhabitable.  Notably, the Village’s complaint alleged that the defendants intentionally emitted such greenhouse gases, and that defendants knew or should have known of the impacts that would result from such emissions.  In fact, the complaint alleged that the defendants engaged in a conspiracy to mislead the public about the science and dangers of global warming.

The lower court had held that the AES Corporation (“AES”), one of the defendants in Kivalina’s lawsuit, was not entitled to a defense in connection with the Kivalina lawsuit as the complaint did not allege an occurrence, which under Virginia law is a term synonymous with accident.  On appeal, the Virginia Supreme Court noted that while intentional acts generally are not considered occurrences under Virginia law, coverage can be available for intentional acts when the injury or damage resulting form such acts is not intentional.  Under such circumstances, noted the court, the inquiry “is not whether the action undertaken by the insured was intended, but rather whether the resulting harm is alleged to have been a reasonably anticipated consequence of the insured’s intentional act.”  The Village of Kivalina’s lawsuit alleged that all defendants, including AES, intentionally emitted greenhouse gases into the atmosphere.  As such, explained the court, AES’ right to coverage hinged on whether the alleged harms resulting from the emissions was reasonably expected.

AES argued that for the purpose of determining a duty to defend, the underlying suit at least potentially stated an occurrence, since the complaint alleged both intentional and negligent conduct and since the complaint alleged that AES knew or should have known of the harms that would result from its emissions, thus implying that AES was not aware of the harms.  The court disagreed and in doing so, relied on the allegation in Kivalina’s complaint that “there is a clear scientific consensus that the natural and probable consequence of such emissions is global warming and damages such as Kivalina suffered.”  This allegation, explained the court, in tandem with the allegation that AES intentionally emitted greenhouse gases, established that the underlying suit did not allege accidental conduct but rather intentional conduct.  As such, the court disagreed that the allegations of negligence could be construed as alleging an occurrence, explaining:

Kivalina asserts that the deleterious results of emitting carbon dioxide and greenhouse gases is something that AES knew or should have known about.  Inherent in such an allegation is the assertion that the results were a consequence of AES’s intentional actions that a reasonable person would anticipate.  … Even if AES were actually ignorant of the effect of its actions and/or did not intend for such damages to occur, Kivalina alleges its damages were the natural and probable consequence of AES’s intentional actions.  Therefore, Kivalina does not allege that its property damage was the result of a fortuitous event or accident, and such loss is not covered under the relevant CGL policies.

The court’s decision, and in particular its reliance on plaintiff’s assertion that there is a clear scientific consensus on global warming is likely to be considered controversial in some quarters.  It is unlikely that there will be further coverage litigation on this point, however, at least in the near future, in light of the United State Supreme Court’s April 2011 decision in American Electric Power Co. v. State of Connecticut, 131 S. Ct. 2527, (2011) holding that climate change suits such as Kivalina’s do not state a cause of action under federal law.

Vermont Supreme Court Rejects Joint and Several Liability Theory

In its recent decision Bradford Oil Company, Inc. v. Stonington Ins. Co., 2011 Vt. LEXIS 102 (Vt. Sept. 11, 2011), the Supreme Court of Vermont had occasion to revisit the issue of whether a time-on-the-risk allocation methodology should apply to pollution condition that occurred over a period of several decades.

The site in Bradford Oil was a filing station that was the source of an underground petroleum leak believed to have commenced in the 1960s or 1970s and continued through the 1990s.  The station was placed on the Vermont Hazardous Waste Sites List in 1997 when the petroleum contamination was first discovered.  The insured undertook an investigation and clean up, the majority of which costs were paid through the Vermont Petroleum Cleanup Fund (“VPCF”).   Bradford had four general liability policies through Stonington covering the period 1994 through 1997.  While Stonington agreed that the policies provided coverage for the cleanup, a coverage dispute arose as to extent of coverage afforded under the policies.

In the ensuing coverage litigation, in which the State of Vermont was a party, Stonington argued that based on the decision in Towns v. Northern Security Ins. Co., 964 A.2d 1150 (Vt. 2008), the proper methodology for allocation in Vermont is time-on-the-risk.  As such, Stonington contended that based on a simple time-on-the-risk allocation, it should only be responsible for 4/27, or 15% of total cleanup costs.  The State, however, argued that a joint and several liability methodology should apply, leaving Stonington responsible for the all cleanup costs up to the limits of its policies.  Specifically, the State contended that Towns should not apply to a situation where the insured’s liability, by statute, is joint and several.  The State also claimed that Towns should not apply where the VPCF is a party to the litigation.  The Vermont Supreme Court rejected both of the State’s arguments. 

First, the court refused to expand the policies’ coverage merely because the insured’s statutory liability was joint and several.  The court concluded that because the policies required that the “property damage” occur during the policy periods, it would be an inequitable result if Stonington was held responsible for cleanup costs associated with contamination pre-dating the policies.  Further, the mere fact that the insured’s liability was described by the statute as joint and several was irrelevant, since “the contribution of insurers is different from the tort concept of contribution among joint tortfeasors.”  The court also rejected the State’s position that Towns should not apply when the VPCF is the plaintiff in interest, explaining that coverage is based on the terms of the policy, not any statutory or public policy rationale.  In passing, the court held that the insurer should not have the burden of showing that the insured elected to be self-insured for any gaps in coverage rather than placing the burden on the insured to show that it could not obtain coverage for such periods.  In doing so, the court explained “we do not want to adopt a methodology that rewards inaction, failure to obtain appropriate coverage, or failure to keep track of insurance policies.” 

North Carolina Court Holds Multiple Injuries Arose from a Single Occurrence

In its recent decision in Mitsui Sumitomo Ins. Co. of Am. v. Automatic Elevator Co., Inc., 2011 U.S. Dist. LEXIS 103165 (M.D.N.C. Sept. 13, 2011), the United States District Court for the Middle District of North Carolina had occasion to consider whether multiple injuries arising from the same act of negligence constituted a single occurrence, or multiple occurrences, for the purpose of a general liability policy.

The incident giving rise to the coverage dispute in Automatic Elevator involves particularly shocking and disturbing facts.  Automatic Elevator had been an elevator contractor for the Duke University Health System.  During the course of working on an elevator project, Automatic Elevator removed used hydraulic fluid from an elevator and stored it in a number of storage barrels made available by Duke.  The barrels had previously contained surgical cleaning and lubricating fluids and were marked as such. The barrels were then stored at Duke’s facility and intended to be picked up at a later date for disposal.  Before the barrels could be retrieved, however, a Duke employee mistook the barrels for unopened barrels of cleaning fluid and had the barrels returned to the original vendor as overstock.  Sometime later, the vendor sold the barrels containing the hydraulic fluid back to Duke.  Duke, believing that barrels contained surgical cleaning fluid rather than spent hydraulic fuel, allowed its surgical equipment to be washed in the fluid and used for surgeries.  Duke subsequently identified over three thousand individuals who were operated on with contaminated surgical equipment.  Duke was sued by one hundred fifty individuals and ultimately settled with one hundred twenty-seven individuals for an amount in excess of $6 million.

Automatic Elevator’s insurer, Mitsui Sumitomo, and Duke subsequently engaged in coverage litigation as to Duke’s rights to coverage as an additional insured.  Among other things, the court was required to consider whether the underlying matter arose out of a single or multiple occurrences.  This issue had relevance in light of the fact that the Automatic Elevator policy had limits of liability of $1 million per occurrence and $3 million in the aggregate.  Mitsui argued that the underlying claims arose out of a single occurrence; specifically, Automatic Elevator’s negligence in failing to properly dispose of the used hydraulic fluid.  Duke, on the other hand, argued that the underlying suits arose out of the one hundred twenty-seven separate occurrences, viz., each individual surgery involving contaminated surgical equipment.

The court determined that for number of occurrences questions, North Carolina courts apply a “cause” test, but a question remained as to “which negligent act, or continuum of negligent acts, on the part of the insured gave rise to liability.”  Looking to all relevant North Carolina precedent on the issue, as well as case law from other jurisdictions, the court concluded that liability flowed from Automatic Elevator’s negligent handling of the hydraulic fluid, which in turn allowed for it to be mistaken as surgical cleanser.  The court rejected Duke’s theory as to multiple occurrences, explaining that “[a] finding that each of the 127 surgeries constitutes a separate occurrence would blur the line between the cause approach and the effect approach. Such a ruling thus would effectively ignore the North Carolina courts' explicit adoption of a cause rather than an effects standard, something this Court declines to do.”

Summary Judgment Rule

(Canada) Attorney General v. Ranger, 2011 ON SC 3196

While we wait for the Ontario Court of Appeal to clarify the scope of the new summary judgment rule, the Honourable Justice Power has recently shown a preference for the interpretation of the new Rule 20 that expands the power of the court in making findings of fact.

Various Superior Court of Justice judges have interpreted the changes to Rule 2o differently, some suggesting that it does not give a motions judge the power to make findings of fact for the purpose of deciding an action on the basis of evidence while others (now including Power, J.) suggest that it does allow a motions judge to make findings of fact.

The ultimate resolution of these diverging points of view by the Ontario Court of Appeal will have a significant impact on insurance defence litigation. Often defendants are faced with having to decide whether to go through an expensive trial or just make a "smaller payment" to settle a claim, even where a defendant is fairly sure that there should not be a finding of liability. Given the extraordinary cost of trials, defendants often unfortunately decide to settle even where they should not if they can settle for a small sum and avoid the cost and risk of trial.

The recent decision of Power, J. in (Canada) Attorney General v. Ranger, 2011 ON SC 3196, granted summary judgment to homeowners who were being sued under the Occupier's Liability Act for injuries sustained by a postal worker who had slipped and fallen on ice and snow while delivering mail to their home. The evidence of the homeowners at their examination for discovery was that they had a routine whereby they shoveled snow and salted icy areas when needed. Power, J. found that no further evidence could be put before a trial judge and therefore it was not necessary to proceed to trial. Power, J. then dismissed the action in its entirety.

Defence lawyers and insurers may yet find the new summary judgment rule to be a helpful tool in addressing claims without merit.

Rhode Island Court Holds Settlement Does Not Preclude Equitable Contribution Claim

In its recent decision in Century Indemnity Co. v. Liberty Mutual Ins. Co., 2011 U.S. Dist. LEXIS 100088 (D.R.I. Sept. 6, 2011), the United States District Court for the District of Rhode Island had occasion to consider whether an insurer’s settlement with its insured had the effect of barring an equitable contribution claim by a co-insurer.

Liberty Mutual and Century both insured Emhart, which was alleged to have contaminated a site in Rhode Island.  Emhart filed a coverage action against Liberty and Century, seeking a declaration of coverage with respect to any claims, administrative proceedings and lawsuits arising from the release of hazardous materials at the site.  Liberty Mutual opted to settle with Emhart, paying $250,000 for a full release of any coverage obligations under several policies it had issued to Emhart.  Century, on the other hand, took the matter to trial and ultimately prevailed on the issue of whether it had a duty to indemnify.  The jury, however, held that Century had a duty to defend Emhart with respect to the various underlying matters.  As a result, Century became obligated to reimburse Emhart for over $6 million in defense costs.

Century subsequently brought suit against Liberty on a theory of equitable contribution.  Liberty Mutual argued that it had no duty to defend Emhart and that even if it did, its settlement with Emhart satisfied its defense obligation such that Century did not have a valid claim for equitable contribution.  After an initial finding that Liberty Mutual did have a duty to defend, the court considered what it described as “two difficult and important issues regarding risk allocation among insurers, particularly in large-scale environmental claims like this one,” namely, the effect of Liberty Mutual’s settlement with Emhart and how defense costs should be allocated between the two insurers.

With respect to the first issue, Liberty Mutual argued that allowing an equitable contribution claim despite the settlement would frustrate the important public policy of favoring early settlements.  The court noted that courts and commentators to have considered the issue “roundly rejected Liberty Mutual’s proposed bright line rule that ‘one insurer’s settlement with the insured is [always] a bar to a separate action against that insurer by the other insurer or insurers for equitable contribution or indemnity.’” The court acknowledged, however, that there was no bright line rule to the contrary.  Rather, the prevailing sentiment, explained the court, was to uphold equity and prevent unjust enrichment.   Toward this end, the court found that Liberty Mutual’s settlement with Emhart did not advance any public policy goals pertaining to settlements since the terms of the settlement reflected a mutual understanding that no settlement would occur between Emhart and Century since Liberty Mutual’s settlement payment was so disproportionately small in comparison to the entirety of Emhart’s defense costs.  Thus, concluded the court, “[f]ar from being a litigation killer, Liberty Mutual’s settlement essentially ensured that this litigation would not die.”  Given this, and given the fact that Liberty Mutual had substantially larger policy limits at interest than Century, the court concluded that the equities favored allowing Century’s contribution claim.

The court next considered how Emhart’s defense costs should be allocated.  Liberty Mutual argued that defense costs should be divided equally between it and Century as a result of their policies’ respective other insurance clauses.  Century, on the other hand, argued in favor of a time on the risk allocation, which would result in Liberty Mutual being required to pay the majority of defense costs since Liberty Mutual insured Emhart for a period of eighty-six months whereas Century insured Emhart for only thirteen months. The court held that Liberty Mutual’s argument concerning other insurance clauses only applied to insurers covering the same risk, not to insurers that issued successive policies.  Relying on case law from other jurisdictions, the court concluded that the most equitable means of allocations would be a time on the risk allocation that it explained “serves to align insurers’ defense costs expectations with the proportion of risk that they assume based on the duration of their policy.”  As a result, the court held that in light of the number of years that Liberty Mutual insured Emhart, as comparison to the number of years that Century insured Emhart, Liberty was required to pay 86% of Emhart’s defense costs, or approximately $5.2 million of the defense costs, less the $250,000 it initially paid pursuant to its settlement agreement.

California Court Holds “Genuine Dispute Rule” Not Proper Basis for Motion to Dismiss

In its recent decision titled Essex Marina City Club, L.P. v. Continental Casualty Co., 2011 U.S. Dist. LEXIS 97382 (N.D. Cal. Aug. 30, 2011), the United States District Court for the Northern District of California addressed an insurer’s argument that California’s “genuine dispute rule” warranted dismissal of an insured’s bad faith claim.

The insured, Essex Marina, had sought a defense and indemnification under a professional liability policy issued by Continental for an underlying lawsuit.  At issue in the Essex Marina’s lawsuit was Continental’s handling of the claim following the initial tender.  The matter passed hands through five different claims adjusters and was the subject of numerous requests for information from Continental to Essex Marina, prompting the court to characterize Continental’s conduct as a game of “hot potato.”  In all, it took Continental over two years before it finally denied coverage to Essex Marina during which time Essex Marina allegedly incurred hundreds of thousands of dollars in attorneys’ fees in the underlying litigation.  

Essex Marina later sued for a declaration of coverage as well as for bad faith on the basis that Continental “consciously and unreasonably … failed to make a timely ruling on its claim [and] failed to properly investigate its claim.”  Citing to Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), Continental moved to dismiss the bad faith cause of action on the basis that it was not a plausible claim.  Continental argued, among other things, that such a claim was negated by California’s “genuine dispute rule,” which “operates as an exception to the general rule that an unreasonable delay in payment of benefits due under an insurance policy gives rise to tort liability.”  The court held that while there may have been a genuine dispute as to the validity of Essex Marina’s bad faith claim, “this is an intensely factual issue not suitable for resolution on a Rule 12(b)(6) motion.”