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Personal Injury
Complex Personal Injury
Our firm has a Complex Injury Team to address
the difficult issues that can arise from complex or catastrophic
personal injuries. While also experienced in addressing the
liability issues giving rise to the loss, including those liability
practice areas listed below, the members of the Complex Injury
Team focus their practices on dealing with the challenging issues
that often arise in respect of causation for a claimant's post
accident complaints, the valuation of loss of income earning
capacity and the appropriateness of past or future care needs.
Specifically, members of our firm's Complex
Injury Team have considerable experience dealing with cases
involving infants and adults with:
(a) serious brain injury;
(b) mild traumatic brain injury with allegations of associated
severe functional impairment;
(c) catastrophic physical injury including spinal cord injuries;
(d) chronic pain;
(e) psychological injury;
(f) varying degrees of injury superimposed on a complicated
pre-accident history.
In depth discovery and factual investigation
and the engagement of appropriate, respected, properly instructed
experts, are all critical elements in the proper evaluation
and successful defence of these cases. Our experienced practitioners'
early and comprehensive approach to defending complex and
catastrophic injury cases has proven effective in providing
our clients with timely and accurate assessments as well as
practical and cost-effective results.
Occupiers' Liability
The firm currently acts for many of Canada's
largest property and casualty insurers. Particular expertise
is available in the context of "occupier's liability"
of commercial liquor establishments. Our firm has litigated
numerous cases concerning "who is an occupier",
the liabilities of both landlords and tenants, and the related
issue of which types of liabilities do not fall within the
framework of the Occupiers' Liability Act. We provide an early
assessment of the quantum exposure and the merits of available
defences.
Liquor Liability
We currently act for several insurers
who provide coverage on a program basis for bars, pubs, and
restaurants. Particular expertise is available in the area
of commercial liquor liability as well as social host and
"employer" host liability. We regularly publish
and speak on this subject and our experience in this area
allows us to take advantage of the standard of care distinctions
between various classes of establishment.
Transportation Liability
(a) Motor Vehicle
Due to the existence of mandatory third party automobile insurance
in British Columbia, out of province insurers need lawyers
who are conversant in British Columbia's unique statutory
provisions relating to third party and no fault disability
benefits. Our professionals provide an early assessment of
quantum and implement a variety of defences and alternative
dispute resolution mechanisms to minimize your risk.
(b) Rail
Canada's extensive regulations regarding the ownership and
operation of rail lines present unique challenges; challenges
that our lawyers have the experience and knowledge to properly
resolve.
(c) Aviation
The aeronautics industry also operates within a unique legal
environment. Our firm is versed in the common law and legislated
aspects of aviation liability, including the Aeronautics Act
and Carriage by Air Act. We can assist you in resolving both
personal injury and property damage claims arising from the
use of airplanes and helicopters.
Sports and Recreation
We have a long history of defending municipalities,
sports teams and recreational facilities and providers in
respect of personal injuries arising from defects with the
recreational equipment or facility or the "overly energetic"
actions of the other participants. We have had significant
success in defeating such actions on the basis of waivers
or the claimant's deemed acceptance of the risk.
Sexual Abuse
Civil claims for sexual abuse are on the rise
in Canada and elsewhere. Such claims can be “long tail
claims” extending to incidents that occurred in the distant
past, when arising from “recovered memories” by
a third party claimant. Our professionals have the knowledge
to defend institutions against claims for sexual abuse. We
routinely use alternative dispute resolution to minimize the
increasing risk of large damage awards.
Property Damage
Product Liability
Insurers are often confronted with claims against
manufacturers of products that enter the stream of commerce
in British Columbia. Our lawyers act for domestic and international
insurers and "self insured" product manufacturers.
We have extensive experience defending manufacturers of asbestos,
recreational equipment, medical and dental equipment and implants.
In addition, our firm has undertaken seminars for U.S. insurers
to familiarize those U.S. insurers with products liability
law in British Columbia.
Construction
We have 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.
Our firm has acted for construction site participants not
only in the context of the traditional construction matrix,
but as well on "design build" projects and owner
managed projects. Our firm has been involved in litigation
concerning complex contractual disputes and related limitation
period issues. We have worked extensively with industry experts
and have demonstrated expertise in defending contractors when
the issue is the adequacy and timeliness of the work. In addition,
we have 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.
Environmental
Environmental legislation continues to evolve
in British Columbia and elsewhere. Our firm has been in the
forefront of educating risk managers and claims personnel
in the new and onerous duties placed upon insurers and the
broadening potential for claims exposure. We have undertaken
several industry seminars to address the new legislative framework
and to address coverage wordings to limit exposure to the
industry and have defended first party claims under the new
breed of "cost cap" and pollution liability insurance
products.
Municipal Liability
Municipalities are an easily identified target
of personal injury actions but our professionals are experienced
at asserting the full range of statutory and common law defences
available to such entities. Along with the unique limitation
defences available to municipalities, we are also experienced
in addressing the specific standard of care issues unique
to government actors including the "operational vs. policy"
arguments that are often key to a successful defence.
Subrogation
Subrogation litigation is an essential element
of insurance claims management. Our team of lawyers is experienced
and qualified to pursue recovery from other insured and non-insured
entities to the benefit of our clients. Our cost effective
approach to subrogation and settlement maximizes the ultimate
recovery to our insured clients.
Specialty Lines
Professional Liability
Our firm is regularly retained by errors
and omissions insurers to defend a wide range of professionals.
Historically, we have acted for classes of professionals including
architects, engineers, accountants, actuaries, insurance brokers,
mortgage brokers, and private health care professionals including
dentists and surgical eye care clinics. As the number of occupations
requiring E&O coverage expands (as per the 2006 IBC CGL
"professional liability exclusion") so does the
range of professionals we defend.
(a) Architects
Even as program insurers change we continue to act for architects
in British Columbia. Our experience has included the defence
of architects in respect of 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.
(b) Engineers
Our firm 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
condo" problems and in other settings including settlement
cases, inadequate soils cases and B.C. Building Code compliance
problems.
(c) Mortgage Brokers
For over a decade we have acted for various broker sponsored
programs for mortgage brokers and in that capacity have defended
mortgage brokers confronting claims over conflict of interest,
"failure to advance" funds, and lack of due diligence
on mortgage funding.
(d) Health Care Professionals
Through various programs maintained by wholesale brokers we
have defended a wide range of private sector health professionals
including dentists, eye surgery clinics, private IME/X-ray
clinics, holistic medical clinics and private care retirement
facilities. In addition, we have acted for one of the largest
Canadian insurers of the manufacturers of medical appliances
that can give rise to patient claims.
(e) Insurance Brokers
We currently act for several E&O insurers that specialize
in E&O coverage for brokers. The fact that our firm confines
its practice to insurance law ensures that we have a wide
ranging understanding of the insurance issues that so frequently
give rise to claims against insurance brokers. We consider
this to be a valuable asset in solving broker claims in a
timely and cost effective manner.
Director's and Officer's Liability
The increase in litigation against directors
and officers in Canada has been dramatic. Our firm is well positioned
to respond to any claims made against directors and officers,
whether on a coverage or defence basis, as we have for some
time taken assignments from most of the leading providers of
D&O coverage in Canada.
We have defended a wide variety of officers
and directors for both public and private companies in cases
involving both "duty to defend" and "reimbursement"
policies. We have particular expertise in acting as coverage
and defence counsel in respect of securities claims. We have
also defended matters for "not for profit" organizations
and small companies. In the continuing defence of senior management
and directors in securities and other claims we have demonstrated
expertise in "due diligence" defences, responded
to statutory claims brought against directors and officers,
and have a track record defending management confronting allegations
of negligence and breach of fiduciary duty.
Employment Practice Liability
With the emergence of EPL policies as a "stand
alone" wording we have been consulted by over a half dozen
national and foreign-based insurers to develop "made in
Canada" EPL wording suitable for the reality of Canadian
legal exposures as opposed to comparable developments in Great
Britain and Canada.
In the "duty to defend" area
we have been called upon by EPL insurers to deal with a wide
range of discrimination, sexual abuse and wrongful dismissal
cases to defend both the insured entity, senior management
and employees. We operate "1-800" 24 hour call lines
for the benefit of insureds to avoid having employment-related
problems result in actual claims.
Technology Liability
Technology liability insurance is one of the
newest products available. Technology insurance liability
claims can involve various negligent acts, including “professional”
errors and omissions, or trademark, trade name or copyright
infringements. Policy protection is designed to protect insureds
when their products or services fail to deliver as intended
or for unintentional infringement of intellectual property
rights. Our firm’s commitment to keeping up with all
industry trends has resulted in our already having developed
expertise in this burgeoning area.
Fiduciary Liability
Fiduciary liability policies address another
evolving area of coverage, providing protection to welfare
and pension plans, the sponsor organization, and individuals
acting as fiduciaries or administrators of the plans. Coverage
is granted for violations of the growing number of responsibilities,
obligations, or duties imposed upon fiduciaries by statute
and the common law. We are experienced in defending fiduciaries
and defending coverage cases where the fiduciaries have breached
the terms of the policy.
Class Action Defence
Class action and representative action lawsuits
are increasingly common in Canadian courts, including in British
Columbia. The staggering damage awards such actions create
present a risk that insurers should only trust to professionals
with experience in this area.
Our professionals have defended a broad range
of commercial insureds and senior management in the context
of class actions concerning product failures, professional
negligence and directors' and officers' claims. Since our
practice is confined to insurance work we do not act on behalf
of class action claimants and thereby avoid the business and
legal conflicts that can often arise.
In class action proceedings a reliable
opinion on coverage is a necessity. Our professionals have
opined on class claims arising from D&O liability and
products liability, giving insurers an assessment of the "covered"
loss and quantum of damages. We have also acted as the insurer's
counsel in negotiated resolutions of class actions.
Fraud
Our firm currently acts for many of Canada's
largest property and casualty insurers. Insurers' "deep
pockets" can attract fraudulent claims. We have extensive
experience in identifying and defending fraudulent claims,
both first party and third party. We have established a practice
of becoming involved in the investigation of suspect claims
from the onset to assist in establishing an arson or fraud
defence. Our experiences have resulted in close relationships
with several special investigations units and arson investigators.
Life & Disability
Our lawyers have developed specific expertise
in acting for life and disability insurers. We have undertaken
subrogation proceedings for recovery of disability benefits
as well as defending both claims for life payments in circumstances
of accidental death and suicide, and traditional claims involving
denials of benefits.
Coverage
Opining on coverage issues requires experience
one can only expect from professionals who restrict their practice
to the insurance industry. Our professionals provide opinions
relied upon by the top insurers in Canada and worldwide when
determining coverage for specific claims, calculating reserves
and drafting policy wordings, and have appeared as counsel in
multiple coverage cases before Supreme Court of Canada, as well
as other appellate courts. We have specific expertise in the
following areas:
(a) Specialty Lines
Many of our professionals are conversant in the unique coverage
issues posed by specialty lines policies, including professional
liability, D&O and EPL. Our firm currently acts for at
least eight different specialty lines insurers and syndicates
that regularly underwrite both duty to defend and reimbursement
policies. We regularly provide coverage advice on a wide range
of issues include the scope of the common exclusions, problems
inherent to a "claims made and reported" form, materiality
of pre-inception representations and extra-contractual remedies
available to the insurer, and jurisdictional issues where,
in particular, D&O claims extend beyond provincial or
national boundaries. We have also provided advice on "cross
border" litigation and determining the most beneficial
forum for litigating the coverage issues.
Our firm 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 for allocation when a claim entails non-insured
parties. In addition, our firm has acted as national monitoring
counsel working with defence counsel, including in the United
States, to manage the litigation in a manner consistent with
the objectives of the insurer, including the auditing of defence
files in the context of reimbursement policies.
(b) Construction
Our firm has a long history of providing advice on coverage
issues inherent to construction law, including CGL, course
of construction and wrap up policies. Our advice has included
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. We have litigated "work
product" exclusions and issues involving the ambit of
the completed operations coverage. The firm's coverage advice
has frequently been sought on differing "trigger"
theories and to what extent particular liability policies
need to respond to a loss. In recent years we have acted as
counsel on construction coverage cases in Ontario, Alberta
and Manitoba, as well as in British Columbia.
(c) Sexual Abuse
Our firm has significant experience in
opining on coverage for sexual abuse claims. Insurers have
been found liable to defend and pay damages for claims of
sexual abuse arising out of "recovered memories"
of incidents that would be statute-barred if brought pursuant
to any other cause of action. Our professionals understand
this area of the law and can address coverage for such "long
tail" claims. We acted as counsel in the leading Supreme
Court of Canada decision on the extent of the duty to defend
obligation in the context of sexual abuse claims: Non-Marine
Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24.
Underwriting Advice and Policy Wordings
We have been retained by a wide range of
property, liability, E&O, D&O and EPL insurers to partner
with them in developing wordings suitable for use in Canada.
In the areas of property policies we have advised
domestic Canadian insurers on the suitability of warranty
language, clarifying exclusionary language and refinements
in policy wording given unique Canadian liability exposures
that dictate a modified wording. We have been involved in
crafting wordings for unique underwriting problems as diverse
as potential problems stemming from "grow ops" to
restrictions in coverage for Canadian securities claims in
the context of D&O claims.
For the past five years our firm has become
extensively involved in policy wordings for E&O, EPL and
D&O insurers, the latter both in the "for profit"
and "non profit" markets. This includes the adaptation
of U.S. and UK 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, allocation and expanded coverage
for employment practices liability. Our firm has developed
complete policy wordings and substantially modified existing
forms for over a half dozen leading D&O insurers. In addition,
we have been retained to modify unique endorsements for truly
facultative risks that pose unique risk management issues.
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