Backcountry ski rescue volunteers face liability

This is a potentially troubling development for volunteer rescue operations, particularly where they operate in  backcountry ski operations.

When the duty to defend is triggered in an Errors & Omissions policy

Where an insured receives a demand that specific action be taken, failing which remedies will be pursued in court, this is sufficient notice of a potential claim, within the terms of an errors and omissions policy, such that if the claim is ultimately pursued in court, no duty to defend will be triggered.

Actions against a bankrupt’s insurer can proceed notwithstanding denial of coverage

Hemeon v. District of West Hants, 2008 NSSC 234 examines the interplay between section 69.4 of Canada’s Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”), and section 28 of Nova Scotia’s Insurance Act, R.S.N.S. 1989, c. 231.

The BIA provides for an automatic stay of proceedings in all litigation against a person who makes an assignment in bankruptcy, but then permits that stay to be lifted if the applicant can demonstrate that it will be “materially prejudiced” by the stay, or that lifting the is “equitable on other grounds”.

The Insurance Act provides that if a person obtains judgment against another for which there is insurance, and execution against the judgment debtor is returned unsatisfied, then the judgment creditor can bring the same action against the insurer, and the insurer will be liable up to the face value of the policy.

Although the case is based on Nova Scotia legislation, most provincial insurance legislation contains provisions similar to those interpreted in this case.

Would Australia’s “hot tubbing” approach to expert evidence work in Canada?

Legal Ethics Forum questions whether it would work in the United States.

Legal Ethics Forum’s Rob Vischer refers to a New York Times article published August 11, 2008. That, in turn, refers to a speech by Justice Peter McClellan of the Land and Environmental Court of New South Wales, Australia.

Broker liable to insurer for losses paid on policy; Tendering the discovery evidence of an adverse party does not make the adverse party a witness in the tendering party’s case

In Fleet v. Federated Life and Bellefontaine, 2008 NSSC 231 (CanLII), an insurance broker was found liable to re-imburse the insurer for payments made on a life insurance policy, where the broker inserted misleading answers about the insured’s health in an application for life insurance, and then forged the insured’s signature.

At trial, counsel for the plaintiff entered the broker’s entire transcript from the examination for discovery.  The broker chose not to take the

Insured has a right to independent medical examiner’s handwritten notes

In a decision handed down February 1, 2008, the Federal Court of Appeal ruled that an insured sent for an independent medical examination by his long-term disability benefits insurer is entitled to access the medical examiner’s handwritten notes in a dispute as to the insured’s continued eligibility to receive benefits.

In Rousseau v. Canada (Privacy Commissioner), 2008 FCA 39 , the insured, Jacques Rousseau, had been receiving long-term disability benefits from Maritime

When Section B expenses are “incurred”

The decision of the Nova Scotia Small Claims Court in Rushton v. Economical Mutual Insurance Company, 2007 NSSM 90 is a good example of a situation where the correct application of the law might run counter to what an intuitive approach might suggest.