Edited by Amanda Kostek and Kristen Hansen
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Artindale-Eeles v Mercer, 2024 ABKB 23
Personal Injury Damages Decision
Agrola Inc v Wawanesa Mutual Insurance Company, 2024 ABCJ 92
Co-Insurance Clauses
LM v Novex Insurance Company, 2024 ABCJ 90
Denial of Coverage | Limitation for Suing an Insurer
Artindale-Eeles v Mercer, 2024 ABKB 233
The 49-year-old Plaintiff was involved in two collisions on April 9, 2010. She alleged no injury from the first impact and was instructed to wait for police to arrive. 45 minutes later she was struck a second time, which caused her vehicle to spin 180 degrees. Neither collision was a high-speed impact. The Plaintiff had a lengthy history of health issues “too complicated for most people to keep straight in their mind”. However, the Court found her evidence to be unreliable at times. She tended to understate her pre-existing condition and overstate the severity of the second accident. Her evidence on her use of pain medication was unreliable, and her unreliable reporting to experts was found to compromise the expert opinions.
Pre-existing health issues included headaches for which she was taking 2 Topomax tablets per day, neck, muscle, chest, shoulder, and back issues for which she took Tylenol 3, depression, insomnia, diabetes, high blood pressure, and cholesterol. She had a WCB claim in 2011 from a fall on her left side.
She had at least two lengthy absences from work for depression or PTSD conditions prior to the collision in 2000 and 2008. Her perception of her work ability post collision was described as follows:
[75] Ms. Artindale-Eeles’ distortion of the effects of the Collision on her work evaluation due to depression was not exaggeration, it was simply wrong. She may have felt she was impatient or unsupportive, but that is not what shows in her evaluations. I will deal with other distortions of her driving issues, including travel to work, under the claim for psychological damages.
Post collision, in 2010 and 2011, she injured herself 3 times falling and once lifting groceries.
The Plaintiff went for at least 90 physiotherapy sessions over a 2-year period, but physiotherapy records were not provided in the litigation, because the clinic had closed. She attended 30 counselling sessions between 2010 and 2013.
The Court accepted that her left shoulder instability was caused by the collisions and caused her to reduce her employment to part time on restricted duties. By the time of trial her shoulder issues were chronic, and exacerbated by other post collision incidents. She also suffered a soft tissue injury to her neck, and a relapse into PTSD accompanied by driving anxiety as a result of the collision.
In terms of past income loss, the court accepted that as a result of her injuries she reduced her work from 2010 until she retired in 2015, but the Court was not prepared to accept that she would have worked 40 hours per week but for the collision when she had not done so in the past. The Plaintiff also sought damages for retiring early. She retired roughly 12 months shy of a full pension. However, the Court did not accept that that was related to the collision:
[261] There were a number of factors that influenced the decision of Ms. Artindale-Eeles to retire about a year before completion of her 35th year of service with the DND. In her own testimony, Ms. Artindale-Eeles confirmed that she loved her job and was very good at it. She had issues with just one boss historically; she had to deal with under-performing subordinates both before and after the Collisions. By 2014, her job responsibilities had changed with contracting out, and she became less interested supervising fewer maintenance crews, perhaps bored.
[262] If accurate, the evidence of Ms. Artindale-Eeles that she was not happy at work and that she was a wreck at the end of every shift is not attributable to the Collisions five years earlier. The frustration at not being able to multi-task did not affect the assessment of her work productivity or effectiveness as a supervisor. On the evidence before me, she failed to prove that her early retirement was because of the Collisions or, in other words, that “but for” the Collisions she would have worked another 12 months.
[263] I find that a decision to retire over five years after the Collisions may have been reasonable to Ms. Artindale-Eeles and her husband. Predictably, her retirement reduced some sources of stress. However, the date chosen was not a reasonably foreseeable consequence of the Collisions as the law applies to the measure of damage.
The potential loss from part time post retirement work was also considered to be unrelated to the collisions:
[264] Ms. Artindale-Eeles said she was planning to work perhaps half time after she retired to keep busy while Mr. Eeles was working. She gave evidence that she made two inquiries with Walmart and Value (Delton) Drug Mart but felt discouraged as she may not qualify. She did not make any job applications. This was the full extent of her evidence.
[265] I am satisfied that Ms. Artindale-Eeles has provided evidence that she was contemplating part-time work after she retired. However, this is not the same as proving on a balance of probabilities that she would have worked part time after she retired if the Collisions had not happened. As reviewed at some length, Ms. Artindale-Eeles was not a reliable witness. In my view, the two job inquiries and a stated intention to work part-time are not enough to meet the evidentiary burden. Accordingly, there will be no damage award for loss of income for part-time employment post-retirement.
Damages were assessed as follows:
General Damages: $88,000;
Housekeeping: $3,200;
Specials: $11,600;
In trust claim: $5,780;
Future Care/Future Housekeeping: $12,500;
Past income loss: $45,650.
Agrola Inc v Wawanesa Mutual Insurance Company, 2024 ABCJ 92
This matter involved a claim on policy arising out of a series of thefts in September 2020. At issue was the effect of a co-insurance clause as well as the identification of the co-insurance penalty. The Plaintiff’s uncontradicted evidence was that he did not know that he had to maintain coverage of 90% of his property’s value, and the broker never discussed the co-insurance clause with him. The Court accepted that “he had no appreciation whatsoever of the impact of the co-insurance requirements”. In this case, the insurer acknowledged that there was coverage, but concluded that as a result of the co-insurance penalty, nothing was payable.
The Court noted that reliance on information from an insured for valuation is administratively and economically practical, but once a dispute escalates to litigation and trial, direct evidence is required. Ultimately the Court concluded that there was coverage, and the co-insurance clause was applicable, but the insurer failed to establish the appropriate calculation for the co-insurance provision relied on, because they did not establish the replacement cost of the contents in question. Finally, the Court was not satisfied that replacement cost was an appropriate valuation criteria for calculating the co-insurance penalty.
As a result, the Plaintiff was awarded the insurance limits less the deductible.
LM v Novex Insurance Company, 2024 ABCJ 90
Coverage for loss or damage to the Plaintiff’s truck was denied after her estranged spouse damaged it on June 22, 2020. Just under 2 months prior the Plaintiff presented a Release of Interest confirming that the vehicle belonged to her. The claim was denied because the spouse had a financial interest in the vehicle. The Plaintiff was advised of the 2-year limitation for suing the insurer, but a claim was not filed until November 20, 2023. The Insurer applied for Summary Dismissal of the claim on the basis that the limitation had been missed. The Plaintiff opposed it on the basis that no limitation applied for her claim of coverage, and that she was a person under disability for the purposes of the Limitations Act. Both defences failed. The Court concluded that the insurer’s denial letter complied with the Fair Practices Regulation, that the claim was statute barred, and the Plaintiff was not a person under disability for the purposes of the Limitations Act.
In terms of the governing limitation, the Court said the following:
[15] Section 2(4) of the Limitations Act says that the Act does not apply “where a claimant seeks a remedial order” which is subject to another legislative limitation provision.[13]
[16] LM’s action against Intact seeks coverage under an automobile insurance contract for loss or damage to an insured vehicle. LM’s action against Intact is subject to the Insurance Act[14]’s limitation provision.[15] The applicable limitation is 2 years from the date of loss.
[17] The Insurance Act[16]does not have any provisions which abolish or suspend limitations akin to those found in Sections 3.1 and 5 of the Limitations Act[17].
…
[19] In Subpart 1, we find Section 527. It says that Section 5 of the Limitations Act is applicable to limitation periods established in the Insurance Act “in respect of an action or proceeding as if the period were established under the Limitations Act”. Section 527 of the Insurance Act[20] incorporates Section 5 of the Limitations Act[21] by reference, and into the insurance limitation scheme.
…
[23] Therefore, a claimant may argue that the operation of the Insurance Act limitation periods is suspended during any period of time that the claimant is a person under disability as defined in the Limitations Act[27].
[24] There is nothing in the Insurance Act[28]that similarly incorporates Section 3.1 of the Limitations Act[29].
Ultimately the Court concluded that Section 3.1 of the Limitations Act cannot be relied on in respect of claims brought under the Insurance Act:
[27] The limitations in the Insurance Act speak to actions or proceedings against insurers under contracts of insurance[32], or for recovery of money payable in the event of a person’s death[33]. These are distinct causes of action from the claims contemplated in Section 3.1 of the Limitations Act[34]which are restricted to claims by survivors of assault and battery against perpetrators.
[28] In my view, Section 3.1 of the Limitations Act[35] does not apply to limitation periods in the Insurance Act. Section 3.1 is not incorporated by reference into any of the Insurance Act limitation periods like Section 5. The parties and causes of action to whom Section 3.1 is applicable are specifically enumerated in the Limitations Act[36], and accord with its legislative purpose which is to remove limitations for survivors of assault and battery to sue perpetrators. These are not the parties, or the causes of action contemplated in the Insurance Act[37].
However, the Court noted that had the Plaintiff sued in time, her claim may have been successful, and as a result declined to award costs to the Insurer for the successful application.