A Snapshot of our Recent Activity — Insurance Law

January 30, 2020 — A brief portrait of cases and activities of RSS’s Insurance Law Practice Group over the past few months

Exciting News!

As the new decade unfolds and RSS gears up to celebrate its 100th year, it is delighted to announce the appointment of the new Managing Partner, Andrew Penhale, an old face. Andrew was an attorney with the firm from 2001 to 2010 before moving on to head the Claims Department of the Professional Liability Fund of the Québec Bar. We are excited to have him back in this leadership role.

A Vibrant Department

The Insurance Department is elated for the return of Hugues Duguay, who was with RSS from 2003 to 2018. His expertise in coverage matters and litigation will strengthen an already solid team.

Maro Coric recently joined the department and brings with him his experience as a senior executive with several major firms in the insurance industry, such as Aon, AIG and Chubb, after having been in private practice for several years. He possesses considerable expertise in fields such as cyber risk and transport liability.

Nicolas Melillo joined our Saint-Jérôme office. In addition to insurance, Nicolas has construction law experience with latent defects claims, claims based on construction legal hypothecs, challenges to municipal by-laws, and insolvency matters.

Catherine Jobin had been practising for several years in the Saguenay–Lac-Saint-Jean area when she joined our Saguenay office as a litigator. She has experience in insurance-related matters and also works as second chair in large scale files.

Béatrice D’Anjou articled with RSS, after which she was offered a position in the Insurance Department. Her degree in public relations will serve her well in her new profession.

Now… what does the team have to report since our last newsletter?

The Million-dollar Circle

Élisabeth Laroche and Marika Douville defended a lawyer against a claim alleging a continued omission that would have deprived the plaintiff from the proceeds of a life insurance policy payable as a divorce settlement

Marika Douville and Ann-Julie Auclair defended a lawyer who had testified in an arbitration and who, according to the plaintiff, had given false testimony: defense maintained, the claim was declared abusive. This file is one in a series of claims totalling $4M.

Patrick Henry defended installers of indoor wall-climbing equipment that allegedly failed, causing the fall of a teenager who became paraplegic, which led to claims in excess of $10 M.

Patrick Henry, Stéphanie-Alexandra Lo Vasco and Nicolas Pfister defended a building mechanical company involved in a $25M claim for construction defects (leaks in fire barriers).

Benoît Chartier defended a roofing contractor in connection with a $14M claim.

Jennifer Hansen defended an insurer against a $1M claim pertaining to alleged design and manufacturing defects in a newly designed system used to make charcoal.

Jennifer Hansen obtained a discontinuance of suit in a $2M claim pertaining to construction defects in a residential building.

Michel Green and Jennifer Hansen defended a transportation company in a $1.7M litigation involving a major automobile accident.

Professional Liability

Justin Beeby defended an heir’s claim against a notary acting as a Court-appointed liquidator. The plaintiff was asking the payment of expenditures allegedly having been made for the deceased while she was his curator, a position from which she had been removed.

Justin Beeby also defended a financial institution against a claim for damages arising from the institution’s refusal to execute a withdrawal request by the holder of a questionable mandate.

Marika Douville and Ann-Julie Auclair defended an executive of the Fonds d’assurance-responsabilité professionnelle de la Chambre des notaires du Québec against a claim alleging default under the rules on trust accounts. The plaintiff abandoned the claim after three days of hearings, which caused a dozen related files to be vacated.

Rachel Clément defended the Fonds d’assurance-responsabilité professionnelle de la Chambre des notaires du Québec in a $11.7M claim against promising purchasers and their notaries who refused to abide by their promises because of delays and defaults that precluded the sold apartments from being delivered.

Marika Douville obtained the dismissal at the preliminary stage of a claim against a notary, raising the opposing party’s failure to conduct proceedings promptly, and to provide security for costs as ordered by the Court.

Marika Douville also defended a notary against a claim alleging that he had wrongfully paid to a third party a sum of $50,000 that was the object of a conflict between the plaintiff, the hypothecary lender, and the defendants, sellers of the property.

Coverage Issues

Stéphanie Beauchamp represented the insurer of a real estate developer in a complex case involving over a dozen law firms, arising from the faulty execution of renovation work on a building. Coverage was denied on the grounds that the plaintiff sustained no damage resulting from a covered loss and that all damage was excluded under various clauses.

Benoît Chartier issued an opinion on the insurance coverage provided in relation with a claim by an insured following a cyberattack and a ransomware demand.

Yves Cousineau provided coverage analysis in several matters: a file involving welding operations carried out by the insured; a claim based on alleged construction defects and derogation from standards; a claim based on failure to disclose material facts, including the abandonment of the premises, halted construction work, fraudulent invoices and the insured’s difficult financial situation.

Élisabeth Laroche successfully defended an insurance broker against a professional liability claim by a client who had purchased an illness policy but was excluded from coverage when a disease was diagnosed during the 90-day moratorium period exclusion following the signature.

Nick Krnjevic provided advice to insurers on the interaction between Quebec’s insurance law and private international law, and towards the development of prototypical insurance products.

Nick also provided coverage advice to Wrap-Up insurers in respect of substantial claims presented under a Contractor’s Rework Endorsement.

Finally, Nick provided advice to liability insurers in respect of sexual abuse class actions brought against a post-secondary educational institution in Quebec, and in respect of sexual abuse claims brought by indigenous plaintiffs against a Canadian territorial administration.

Eloïse Robichaud defended an insurer sued for a $400,000 compensation following the destruction by fire of a residence allegedly used as a cannabis transformation laboratory. The refusal to pay is based on an exclusion for criminal activity.

The Wide Variety of Insurance Cases

Benoît G. Bourgon and Nick Krnjevic defended the insurer of a natural gas distributor following an explosion caused by the faulty installation of piping connectors. The Court dismissed the Wellington Application since the policy in force at the time of the installation of the connector in 1987–88 was no longer applicable in 2014 when the damage occurred.

Justin Beeby defended a municipality against an Application for injunction to compel the demolition of a building erected on a plot of land adjacent to the plaintiffs’ by virtue of a building permit allegedly obtained illegally. The plaintiffs also sought compensation for the loss caused by the change in use of the property, which was previously a street.

Justin Beeby also obtained positive results in an Application to have a plaintiff’s claims adjuster’s report struck out in a claim for compensation following a fire. The report was produced in support of a calculation related to the coinsurance penalty. The Court struck out the report since it was interpreting the policy, thus equivalent to a legal opinion that the adjuster was not qualified to issue.

Jean-Philippe Savoie defended a hotel against a claim for damages by a customer who sustained damages allegedly caused by an unmarked level difference in the flooring and by insufficient lighting.

Zachary Ouimet defended a company offering rafting excursions against a $775,000 claim by a passenger injured after having been ejected from a boat following a collision.

Patricia Baram defended a municipality against a claim alleging that its subdivision by-law had been adopted whereas it knew or should have known that it barred the plaintiff from building a residence on the property that he had acquired for that purpose.

Benoît G. Bourgon defended a municipality against a claim arising from the refusal to renew a certificate of compliance because the original certificate had been issued by mistake.

Élisabeth Laroche defended a home-care centre for handicapped residents against a $650,000 claim for loss of profit following the award of a contract for nursing services to a competing bidder after a request for proposals. The Court of Appeal insisted that it is not the role of tribunals to do a substantive analysis of the selection committee’s evaluation criteria and to examine how the committee should have awarded points.

Benoît G. Bourgon represented the issuer of a Wrap-Up Insurance Policy in a $2M claim for unpaid fees under a construction contract. There were procedural issues with a selection of venue clause.

Yves Cousineau was involved in several bodily injury claims: injuries and health problems caused by the collapse of part of the boom of a crane, by the operation of a powerboat, and by a mildew contamination caused by renovations following a fire; injuries related to a pre-existing medical condition; and an alleged aggression against a customer in a bar, where the defence is based on the fact that the aggressor, an employee, was not in the performance of his duties at that time.

Marika Douville defended two construction companies, codefendants against a claim for $850,000 for alleged construction defects in a condo building.

Fabienne Beauvais defended a municipality against a claim arising from alleged misrepresentations and negligence, which would have decreased the price paid to the plaintiff by the purchaser of a plot of land.

Yves Cousineau acted in defence in several construction cases: a claim for latent defects and construction defects (water infiltration, mildew, etc.) following the construction of a condo building; a claim for damages for a significant alteration of the exterior concrete surface of a building causing aesthetic deterioration; and a claim for damages and lost income caused by the collapse of the support system for vegetables in a greenhouse.

Élisabeth Laroche represented the insurer in a claim against the insured, owner of a building where three bars were operated by the plaintiff before being destroyed by fire. When the owner decided not to rebuild, the plaintiff filed a suit for lost profits. The Court ruled that she had no claim against the insurer.

Benoît Chartier and Ariane Légère-Bordeleau defended the City of Beauceville against several claims for damages after landslides in the spring of 2019.

Yves Cousineau acted in cases related to fires: a fire caused by a derogation from construction standards; an explosion caused by the fumes from a varnish applied to flooring; damages allegedly caused by a defect in or the faulty installation of a fireplace or insulating material; damages allegedly caused by improper operation of fire doors; loss of income caused by the explosion of several transformers.

Marika Douville successfully opposed Applications to strike out our expert’s report from the Court record in a case where we were representing a contractor.

Marika also successfully applied to cancel a subpoena to compel the appearance of an analyst with the Fonds d’assurance-responsabilité professionnelle de la Chambre des notaires du Québec on the basis of the litigation privilege.

Michel Green and Jennifer Hansen defended a plumbing company in a $700,000 claim for damages following a fire in a residential building.

Jennifer Hansen also defended a distributor of heavy machinery in a $500,000 claim for damages following the destruction of drilling equipment by fire.

Subrogation Files

Mariella De Stefano instituted recovery proceedings in amongst others, the following matters: against the City of Montreal as a result of a ruptured water main causing extensive water damages to luxury condominiums; against the City of Montreal as a result of water damages to non-profit organizations resulting from the City’s alleged failure to connect the main water pipe to that of the organization; against manufacturers of air conditioning units having allegedly caused a fire leading to extensive damages in an Integrated Health and Social Services University Centre; against a flooring company as a result of a fire allegedly caused by an employee lighting a cigarette after applying a certain inflammable product; against a tenant for having allegedly caused a fire due to overcharging an electrical power bar; against a neighbouring restaurant owner as a result of a fire allegedly caused by work carried out on its property by an electrician.

Speakers… Writers…

Jean-François Lamoureux spoke on recent amendments to the Civil Code of Québec related to divided co-ownerships (condominiums) and related insurance at a Canadian Bar Association conference.

Benoît Chartier presented two new training sessions on the legal consequences of legalization of cannabis. On October 16, he discussed the impact of legalization of cannabis on the insurance industry in Quebec during a day’s training session hosted by the claims adjustment firm Cuirrier et associés. Stéphanie Beaudoin was also part of this activity, where she explained recent developments affecting participants in the construction industry as well as those involved in the related insurance business. And on November 14, Benoît spoke on the legal impact of the legalization of cannabis and edible by-products on the insurance industry in Quebec at the Montréal office of the world-leading insurance brokerage firm Marsh.

RSS was also part of the fourth edition of Éditions Yvon Blais’ seminar on Insurance Law, presenting on recent cases: Justin Beeby spoke at the Montréal event on October 30, while Marcel-Olivier Nadeau was part of the November 13 event in Québec.

On December 6, in Montréal, the Quebec Bar hosted its annual day of Continuing Legal Education on recent developments in insurance law. Katherine Delage chaired the event, while Marcel-Olivier Nadeau was one of the speakers and whose presentation was on adducing evidence in arson cases. The event was quite successful as it had record-breaking attendance.

RSS au féminin

RSS au féminin, a group comprised of Jeanine Guindi, Patricia Baram, Alice Bourgault-Roy, Jasmine Guilbault, Médgine Gourdet, Elyssa Leiberman and Béatrice D’Anjou has persisted with its community and educational mission.

In September, the group proudly conducted a collection campaign within the whole firm, for funds and school supplies for Sun Youth, a well-known Montréal organization. The supplies were distributed to the less fortunate children.

In November, they organized an in-house panel conference on the challenges that women lawyers have to face in exercising their profession.

In December, it led the firm’s participation in The Shoebox Project for Women, which essentially collects and distributes gift-filled shoeboxes to women impacted by homelessness. Thanks to everyone’s contributions, 30 shoeboxes were filled with cosmetics, gift cards and other treats for women spending the holidays in shelters.

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