Eric A. Dolden
Eric Dolden is the firm's senior partner with over 25 years of experience in the field of insurance law. Eric is a member of both the British Columbia and Alberta Bars and a former Chairman of both the British Columbia Civil Litigation and National Civil Litigation Section of the Canadian Bar Association. Eric is a former contributing Editor of the International Insurance Law Review and the Canadian Insurance Law Review, a frequent speaker to industry groups, and an active member of the Defence Research Institute.

Leading Insurance Law Cases
Eric Dolden has acted as counsel for liability and property insurers on some of the most challenging insurance cases in Canada, including:

  o the Supreme Court of Canada's decision concerning the "duty to defend" obligation in the context of a sexual abuse claim; Non-Marine Underwriters, Lloyd's of London v. Scalera 2000 S.C.C. 24;

  o the Supreme Court of Canada's decision as to whether the existence of insurance may be disclosed to a jury; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union [1997] 1 S.C.R. 1092;

  o the Supreme Court of Canada's examination of whether an "All Risk" property insurance policy is a policy of "Fire Insurance" for the purpose of the Insurance Act; Churchland v. Gore Mutual Insurance Co. 2003 SCC 26

  o the British Columbia Court of Appeal's decision on the ambit of coverage for an insured's current and past undisclosed partnerships and joint venture activities in the context of a general liability policy: Kingsway General Insurance Co. v. Lougheed Enterprises Ltd., 2004 BCCA 421, 32 B.C.L.R. (4th) 56;

  o the British Columbia Court of Appeal's decision as to whether psychological harm amounts to bodily injury for the purpose of a D&O exclusion: Wellington Guarantee v. Evangelical Lutheran Church in Canada, [1996] 9 W.W.R. 373; leave to appeal to the Supreme Court of Canada refused, [1996] S.C.C.A. No. 322;

  o the British Columbia Court of Appeal's decision as to the method of allocation between the Directors and Officers and their uninsured company: Coronation Insurance Co. v. Clearly Canadian Beverage Corp. (1999), 168 D.L.R. (4th) 366 (B.C.C.A.);

  o the British Columbia Supreme Court's decision on what constitutes a "claim" on a "claims made and reported" policy: Bakshi v. American Home Assurance Co., 2000 BCSC 1639, 84 B.C.L.R. (3d) 153; and

  o the British Columbia Supreme Court's decision on the extent to which a general liability insurer can resist a settlement entered into between a claimant and its insured if there is evidence of collusion or unreasonableness: Litchfield Holdings & Management Corp. v. Kingsway General Insurance Co., 2002 BCSC 1665, 44 C.C.L.I. (3d) 238.

  o the Ontario Supreme Court’s decision as to whether defects in building construction constitute an “accident” or “property damage” for the purpose of a general liability policy: Russel Metals Inc. v. Ball Construction Inc. (2007), 55 C.C.L.I. (4th) 241

  o the British Columbia Supreme Court decision concerning the application of the “absolute pollution” exclusion in a general liability policy in response to environmentally regulated contaminants: Dave’s K&K Sandblasting (1998) Ltd. v. Aviva Insurance Co. of Canada, [2007] 51 C.C.L.I. (4th) 229.

· The Comprehensive General Liability Policy: Responding to Modern Business Risks (1990) 8 Can. J. Insurance L. 44-76; (1991) 2 Can. Ins. L. Rev. 11-79;

· The Innkeepers' Civil Liability for Intoxicated Patrons: Inside and Outside the Bar (1991) 2 Can. Ins. L. Rev. 1-9;

· Emerging Trends in Canadian Directors/Officers and Employment Practice Liability: Substantive and Coverage;

· Contracts to Bar Subrogation and to Avoid Legal Liability (1989) 7 Can. J. Insurance L. 90-96;

· Insuring Conflicts on the Construction Site (1991) 9 Can. J. Insurance L. 94-96; (1991) 59 Assurances 377-402, 533-548; (1992) 60 Assurances 129-146, 273-276; (1992) 3 Can. Ins. L. Rev 33-98; and

· Directors' and Officers' Liability in British Columbia: Some Emerging Trends.

· The Broad Form Property Policy Responds to Environmental Losses;

· Insurance for Condominiums and Housing Co-Operatives;

· All Risk and Builders' Risk Policies: Emerging Trends (1991) 9 Can. J. Insurance L. 20-40; (1991) 2 Can Ins. L. Rev. 341-384;

· The Insurer's Obligation to Indemnify a Named Insured for Loss Caused by a Co-Insured or an Unnamed Insured;

· Practical and Substantive Aspects of Subrogation (1993) 4 Can. Ins. L. Rev. 121-194;

· Subrogated Proceedings: Diminution in Value or Replacement Cost (1994) 5 Can. Ins. L. Rev. 67-74; and

· The Practical Implications of the Replacement Cost Endorsement (1994) 4 Can. Insurance L. Rev. 277-87.

· Waiver of Privilege: The Triumph of Candour Over Confidentiality (1990) 36 C.P.C. (2d) 56-86; (1989) 47 Advocate 535-551;

· The Contemporary Canadian Application of the Anti-Suit Injunction to Restrain Foreign Legal Proceedings; and

· Restrictive Covenants in the Insurance Brokerage Business.

· Defence of Civil Sexual Assault Damages Claims: An Insurer's Perspective - Co-Author: Kathleen Duffield;

· Emerging Trends in Canadian Directors/Officers and Employment Practice Liability - Substantive and Coverage - Co-Authors: Brock S. Beazley and Laura A. Wright [2002] 20 Can. J. Insurance L. 29-44;

· Employment Practices Liability and Employment Practices Liability Insurance Coverage In Canada (Part 1) - Co-Author: Susan Rutherford (1999) 17 Can. J. Insurance L. 1-15;

· Employment Practices Liability and Employment Practices Liability Insurance Coverage In Canada (Part 2) - Co-Author: Susan Rutherford (1999) 17 Can. J. Insurance L. 20-26;

· Handling "Cross-Border" D&O Claims Involving Canada and the United States - Co-Author: Susan Rutherford (1999) 17 Can. J. Insurance L. 45-67;

· Partnerships, Limited Partnerships, and Joint Ventures: Managing the Risk - Co-Author: Suzanne Duff;

· The Application of the General Liability Policy Exclusions in the Construction Setting - Lisa Ridgway; and

· Substantive and Coverage Issues Inherent to the Defence of Professionals in Leaky Condo Litigation - Co-Author: Lisa Ridgway.

· Condominium Insurance in Ontario - Co-Author: Keith Edwards;

· The Strata Property Act: New Underwriting and Claims' Challenges for the Insurance Industry in B.C. - Co-Author: Renee T. E. Goult;

· Practical and Legal Problems Facing Credit Unions Selling Insurance - Co-Author: Steven D. Wallace.

Insurance Industry Presentations

Eric Dolden has provided more than 100 insurance industry-related presentations on a variety of topics to both the British Columbia and Alberta Claims Managers Associations and the British Columbia Risk and Insurance Management Association. Eric has also spoken at conferences held by the National Canadian Risk and Insurance Management Society, the Professional Liability Underwriting Society (Canadian Chapter), and the Professional Liability Underwriting Society (Directors and Officers Conference in New York).

Practice Areas

Eric Dolden has a diverse background in the following areas:

A. Property and Casualty

Eric currently acts for many of Canada's largest commercial and personal lines insurers. He has defended both first and third party claims.
Eric has defended a full range of the typical liability cases that emerge in respect of habilitation or commercial liability policies including:

· a full range of premises liability cases including occupiers' liability for violent acts, together with "social host" and "commercial liquor host" liability cases;

· more recently, an increasing number of third party liability exposures resulting from the development of mould in residential, commercial and institutional buildings. These include the defence of bodily injury claims emerging from residential and commercial buildings and claims triggering specialized environmental policies for "contaminants". Eric has worked with remediation firms in the development of proactive programs for eliminating or minimizing mould claims if coverage arises; and

· the defence of reputational losses including defamation and breach of confidence by reason of the "Personal Injury" coverage and specialized e-commerce coverages. Eric has defended commercial insureds alleged to have damaged commercial reputations and public officials that are alleged to have committed either libel or defamation.

The increase in litigation against directors and officers in Canada has been dramatic. Eric provides coverage, monitoring and defence services to the leading providers of D&O coverage in Canada. Eric acts for at least six different D&O insurers that regularly underwrite reimbursement or "duty to defend" D&O policies, including three of the largest D&O insurers in Canada.

1. Litigation and Coverage Eric has defended a wide variety of directors and officers of both public and private companies in cases involving "duty to defend" policies. This has included the defence of senior management in "not for profit" organizations that have the benefit of a "duty to defend" type of D&O policy. In the continuing defence of senior management and directors, Eric has demonstrated expertise in securities claims and the related "due diligence" defences, responded to statutory claims brought against directors and officers, and has a track record of defending management who confront allegations of negligence and breach of fiduciary duty.

2. Cross-Border D&O Claims Eric currently acts for and has afforded coverage advice on a wide range of issues including the scope of the common exclusions, problems inherent to a "claims made and reported" form, materiality of pre-inception representations and jurisdictional issues when D&O claims extend beyond provincial boundaries. On D&O policies issued in Canada, Eric has provided advice on "cross border" litigation and issues as to the most convenient forum for determining the coverage issues. Eric has argued, in the appellate courts, some of the leading D&O coverage cases including whether psychological harm amounts to "bodily injury" and the proper method of allocation when a claim entails non-insured parties. In addition, Eric has acted as monitoring counsel working with defence counsel, particularly in the United States, to manage the litigation in a manner consistent with the objectives of the D&O insurer, including the auditing of defence files in the context of reimbursement policies.

3. Policy Wordings for D&O For the past five years Eric has become extensively involved in policy wordings for Canadian D&O insurers; both in the "for profit" and "non profit" markets. This includes the adaptation of U.S. policy wordings for modification and use in Canada, adapting policy exclusions in view of substantive differences in comparable Canadian law, dealing with suitable forms for entity coverage, and allocation and expanded coverage for employment practices liability. Eric has developed complete policy wordings and substantially modified existing forms for seven different D&O insurers. In addition, Eric has been retained to modify unique endorsements for truly facultative risks that pose unique risk management issues.

1. Errors and Omissions
Eric is regularly retained by professional liability insurers to defend professionals on a wide range of programs. Historically, Eric has acted for many different classes of professionals including architects, engineers, accountants, actuaries, insurance brokers, mortgage brokers, and private health care professionals, including surgical eye care and forestry professionals.
Eric currently acts for various E&O insurers who regularly underwrite architects in British Columbia. Eric's experience has included the defence of architects on "water ingress" claims, delay claims, improper estimates and budgeting, inadequate field reviews, improper certification of draws, monetary and time restrictions on suing, and a host of other problems that architects can encounter.
Eric is involved in the risk management of professionals by providing "front end" advice on contracts to be entered into by professionals to ensure that risk can be managed before a dispute arises. This process involves the review and refinement of professional service contracts in order to ensure that the agreements are structured to minimize the likelihood of litigation.

2. Construction and Building Issues
Eric has acted for a wide range of structural, mechanical, electrical and civil engineers that encounter problems both during and following the completion of construction. This experience has arisen both in the context of the current "leaky building" claims and in other settings including settlement cases, inadequate soils cases, and B.C. Building Code compliance problems.
3. Mortgage Brokers
Over the past 8 years Eric has acted for various sponsored programs for mortgage brokers, and in that capacity has defended mortgage brokers confronting claims over conflict of interest, "failure to advance" funds, and lack of "due diligence" on mortgage funding.

4. Miscellaneous Medical Professionals
Through various programs maintained by wholesale brokers Eric has defended a wide range of private sector health professionals including eye surgery clinics, private IME/X-ray clinics, holistic medical clinics and private care retirement facilities. In addition, Eric has acted for one of the largest Canadian insurers of the manufacturers of medical appliances that can give rise to patient claims.

5. Insurance Brokers
Eric currently acts for several E&O insurers that specialize in E&O coverage for brokers. The fact that Eric confines his practice to insurance law ensures that he has a wide ranging understanding of the insurance issues that so frequently give rise to claims against insurance brokers. This has served as a valuable asset in solving broker claims in a timely and cost effective manner.

Eric regularly acts for several major liability insurers of religious organizations in Canada and has been called upon to defend institutions alleged to be either directly or vicariously liable for improper sexual conduct by either employees, officers or volunteers of those organizations. In addition to providing a substantive defence for numerous religious and other non-profit organizations, Eric has been retained on the related coverage issues that arise from sexual abuse claims including issues such as "inter-related Wrongful Acts", what constitutes a single or multiple "occurrence", what "trigger theory" applies when the harm ensues over time and how to manage a "policy limits" problem.

Since 1995 Eric has been periodically retained by Canadian D&O and liability insurers that wish to underwrite either a "stand alone" Employment Practices Liability policy for use in Canada, or, merely an extension on an existing D&O policy. Eric has been retained by six different Canadian insurers to adapt Employment Practice Liability wordings, adopted for use in either the United States or England, for use in underwriting Canadian risks. In addition, Eric has been retained to both defend commercial insureds confronting claims on employment practice liability exposures and to provide coverage "monitoring" advice to the EPL insurer if the policy is merely reimbursement rather than "duty to defend".

Eric has defended a wide variety of construction site participants including general contractors, sub-contractors, material suppliers and related service providers including construction site security firms and semi-professionals.

Eric has acted for construction site participants in the context of the traditional construction matrix, and as well, on "design build" projects and owner managed projects. Eric has been involved in litigation concerning complex contractual disputes and the related limitation period issues. Eric has worked extensively with industry experts and has demonstrated expertise in defending contractors when the issue is the adequacy and timeliness of the work. In addition, Eric has defended construction suppliers in disputes that entail the use and suitability of "proprietary" techniques or products that may give rise to loss or damage following completion.

Traditionally Eric has provided a wide range of advice on coverage issues inherent to a course of construction or Builders' Risk property wording, the limitations on tort recovery incidental to a course of construction wording, and unique problems and conflicts when a "wrap up" liability policy exists concurrently with general liability wordings. Eric is conversant with the "work product" exclusions and has litigated issues involving the ambit of the completed operations coverage. Eric's coverage advice has frequently been sought on differing "trigger" theories and to what extent particular liability policies need to respond to a loss.

Eric has acted for various Lloyd's facilities and other domestic Canadian domestic insurers who afford coverage to municipalities in British Columbia and has defended municipalities in the context of building code issues and "water ingress" claims. In addition, Eric has defended a wide range of claims against municipal authorities for "public event supervision" and potential liability flowing from soils settlement resulting in building displacement.

Insurers are often confronted with claims against manufacturers of products that enter the stream of commerce in British Columbia. Eric acts for domestic and international insurers and "self insured" product manufacturers. Eric has extensive experience defending manufacturers of asbestos, recreational equipment, medical and dental equipment and implants. Eric has defended a wide range of suppliers and manufacturers of equipment installed in sawmills and pulp and paper mills. In addition, Eric has undertaken seminars for U.S. domiciled insurers to familiarize those insurers with products liability law in British Columbia and Canada generally.

Eric has a wide variety of experience in both the defence of environmental liability claims and the coverage issues that flow from environmental losses.
In the context of general liability policies, Eric has addressed the coverage issues that result from the post-1972 ISO/IBC "sudden and accidental" exception to the environmental exclusion and has litigated the appropriate "trigger" theory for continuous property damage, whether industrial polluters can contend an "occurrence" has arisen, and whether an Order under the provincial Waste Management Act of British Columbia constitutes a claim for "damages." In addition, Eric has contested the scope of the more current "absolute pollution" exclusion and the coverage issues resulting from the issuance of a "clean up" order pursuant to the Waste Management Act.

In the defence of potentially responsible parties, Eric's experience has been defending forest industry participants and mining companies. Eric has acted for the liability insurers of forestry and mining companies on a wide range of lawsuits entailing contamination of nearby streams and rivers (accompanied by a "clean up" order), mine tailing failures and related clean up, and leakage from both chemical drums and underground storage tanks. These lawsuits have included the defence of claims from nearby property owners, or as a result of the Waste Management Branch allocating financial responsibility on "responsible parties" following a clean up operation.

In the emerging development of specifically worded environmental impairment liability policies, Eric has been retained by several Canadian and U.S. liability insurers to revise policy wordings for use in Canada. In addition, Eric has been instrumental in developing an endorsement to the D&O policy for "pure economic loss" secondary to any environmental damage claim.

When environmental issues arise in the first party property context, Eric has provided legal advice to property insurers on a wide variety of issues, contested newly-created coverages for "pollutants and contaminants" in commercial property wordings, and addressed the scope of the "sue and labour" clause in responding to first party environmental losses. More recently, Eric has dealt with coverage issues relating to first party mould claims arising in buildings whether secondary to an episodic water release, fire fighting efforts, or as a result of moisture retention in the building wall cavity.

On the policy wording side, Eric has been retained by Canadian insurers offering a "stop loss" coverage that indemnifies for cost overruns attributable to unknown soil conditions, and the coverage issues that flow from these wordings including warranties, representations, breach of policy conditions and the ability to obtain relief from forfeiture. As well, Eric has been retained by property insurers selling environmental "warranty of title" coverage as a result of commercial property being sold when known or suspected environmental problems exist.

Eric currently acts for many of Canada's largest property and casualty insurers. Particular expertise is available in the defence of claims evidencing an element of fraud. Eric works closely with special investigations units and arson investigators in the defence of claims entailing fraud. Eric has established a practice of becoming involved in the investigation of claims from the onset, to assist in establishing an arson or fraud defence.

Contact: Eric Dolden
Direct Line: 604-891-0350
edolden@dolden.com
Tenth Floor - 888 Dunsmuir Street
Vancouver, British Columbia
V6C 3K4