MacKean et al. v. Royal & Sun Alliance Insurance Co. of Canada et al., 2014 NSSC 33

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 16, 2013
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 33;(2014), 340 N.S.R.(2d) 204 (SC)

MacKean v. Royal & Sun (2014), 340 N.S.R.(2d) 204 (SC);

    1077 A.P.R. 204

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. FE.001

Cindy L. MacKean and Dalton Holley, an infant, through his Litigation Guardian Cindy L. MacKean (plaintiffs) v. Royal & Sun Alliance Insurance Company of Canada - and - Joseph Allen Goodall (defendants)

(Pic No. 296867; 2014 NSSC 33)

Indexed As: MacKean et al. v. Royal & Sun Alliance Insurance Co. of Canada et al.

Nova Scotia Supreme Court

Wood, J.

January 30, 2014.

Summary:

Pursuant to the uninsured motorist provisions of her insurance policy with Royal & Sun Alliance Insurance Company of Canada (RSA), MacKean and her son (plaintiffs) sued RSA for injuries that they sustained in a motor vehicle accident that was allegedly caused by an uninsured motorist (Goodall). Goodall was subsequently added as a defendant. The plaintiffs settled their claim against RSA upon a payment of $500,000 to MacKean and $5,000 to her son. The claim against Goodall continued and was assigned by the plaintiffs to RSA. Goodall did not defend the action and default judgment was entered against him with damages to be assessed. The plaintiffs filed a motion seeking an assessment of damages against Goodall in the total amount of $505,000. They submitted that the only issue to be determined on the motion was whether the agreement between RSA and the plaintiffs to settle the claim for $505,000 was reasonable.

The Nova Scotia Supreme Court dismissed the motion. The normal burden of proving damages on an assessment was not relaxed for a reimbursement claim by an insurer. The plaintiffs were required to prove their damages on a balance of probabilities based on admissible evidence.

Damages - Topic 101

General principles - Evidence and proof - General - Pursuant to the uninsured motorist provisions of her insurance policy with Royal & Sun Alliance Insurance Company of Canada (RSA), MacKean and her son (plaintiffs) sued RSA for injuries that they sustained in a motor vehicle accident that was allegedly caused by an uninsured motorist (Goodall) - Goodall was subsequently added as a defendant - The plaintiffs settled their claim against RSA upon a payment of $500,000 to MacKean and $5,000 to her son - The claim against Goodall continued and was assigned to RSA - Goodall did not defend the action - Default judgment was entered against him with damages to be assessed - The plaintiffs filed a motion seeking an assessment of damages against Goodall in the total amount of $505,000 - Evidence filed in support of the motion included various medical and economic reports that predated the insurance settlement which occurred in late 2009, and a transcript of the plaintiffs' discovery examination which took place in early 2009 - The Nova Scotia Supreme Court dismissed the motion - The evidence was insufficient to engage in any meaningful analysis of the plaintiffs' actual damages - The evidence in the discovery transcript was inadmissible because a party could not use their own discovery evidence at the hearing - In addition, Goodall had not been served with the statement of claim at the time the examination took place and did not receive notice of the discovery - Further, an assessment of damages had to be done as of the date of the hearing, and none of the information in the record indicated anything about the plaintiffs' circumstances over the last four years - See paragraphs 37 to 39.

Damages - Topic 101

General principles - Evidence and proof - General - [See Insurance - Topic 2900 ].

Damages - Topic 705

Time for assessment - General principles - Personal injury cases - [See first Damages - Topic 101 ].

Insurance - Topic 2900

Subrogation - Action by insurer - Measure of damages - Pursuant to the uninsured motorist provisions of her insurance policy with Royal & Sun Alliance Insurance Company of Canada (RSA), MacKean and her son (plaintiffs) sued RSA for injuries that they sustained in a motor vehicle accident that was allegedly caused by an uninsured motorist (Goodall) - Goodall was subsequently added as a defendant - The plaintiffs settled their claim against RSA upon a payment of $500,000 to MacKean and $5,000 to her son - The claim against Goodall continued and was assigned to RSA - Goodall did not defend the action - Default judgment was entered against him with damages to be assessed - The plaintiffs filed a motion seeking an assessment of damages against Goodall in the total amount of $505,000 - They submitted that the only issue to be determined on the motion was whether the agreement between RSA and the plaintiffs to settle the claim for $505,000 was reasonable - The Nova Scotia Supreme Court rejected this submission - The plaintiffs were still required to prove their damages on a balance of probabilities based on admissible evidence - The court stated that "No deference should be given to the amount that the insurance adjuster has decided should be paid in settlement of their insured's claim on the insurance contract. There may be contractual terms that entitle the party to money which could not be recoverable damages and there may be economic factors, such as risk assessment and litigation costs, which may factor into the adjuster's analysis. The defendant who may be called upon to reimburse the insurer through the subrogated action should be entitled to insist on strict proof of actual damages caused by his negligence, and not have the onus of establishing that the insurer's decision was not reasonable." - See paragraphs 21 to 36.

Practice - Topic 4502.1

Discovery - Use of examination in court or other proceedings - Use on motions or applications - [See first Damages - Topic 101 ].

Cases Noticed:

Biggin & Co. v. Permanite Ltd., [1951] 2 K.B. 314 (C.A.), dist. [para. 22].

Family Trust Corporation v. Harrison, 1986 CarswellOnt 536, dist. [para. 27].

Insurance Corporation of British Columbia v. Filippelli, [1996] B.C.T.C. Uned. H91; 1996 CarswellBC 2552 (Sup. Ct.), dist. [para. 28].

Saskatchewan Government Insurance v. Harasyn, 1957 CarswellSask 34 (Q.B.), dist. [para. 28].

General Accident Assurance Co. of Canada et al. v. Kloc (1985), 53 O.R.(2d) 353 (Dist. Ct.), folld. [para. 29].

Grosvenor Fine Furniture (1982) Ltd. v. Terrie's Plumbing & Heating Ltd. et al. (1993), 113 Sask.R. 105; 52 W.A.C. 105 (C.A.), folld. [para. 31].

Counsel:

C. Patricia Mitchell and Leah N. Grimmer, for the plaintiff;

Defendant, Royal & Sun Alliance Insurance Company of Canada, not present as claim dismissed previously;

Defendant, Joseph Allen Goodall, unrepresented, not present.

This motion was heard in Chambers at Halifax, N.S., on January 16, 2013, and January 8, 2014, before Wood, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 30, 2014.