Law Times

PAGE 20 FOCUS September 29, 2008 • Law timeS Stickel raises ethical problem for plaintiff bar BY JULIUS MELNITZER For Law Times M io: a badly-injured plaintiff's tribulations prove too much any veteran insurance lawyers are famil- iar with the scenar- for what otherwise might have been a solid marriage, and the couple separates. Had the injury not occurred, the separation would likely have invoked the family sup- port guidelines, which set out with some certainty what the plaintiff 's financial obligations would be to his or her fam- ily. It makes sense, then, that when separation occurs either before or after an accident, and the injury affects the plaintiff's earning power, a portion of the plaintiff's award would be GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW John L. Davis Professional Corporation Richard Hayles R. Lee Akazaki James W. Wilson Jody W. Iczkovitz Jonathan J. Weisman Angela Emerson John L. Davis Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3 Tel: (416) 979-2020 Fax: (416) 979-1285 email: office@gilbertsondavis.com distributed to his (former) spouse and children. But when Jill Stickel retained Richard Shekter of Toronto's Shekter Dychtenberg LLP, the situation didn't seem quite that simple to him. Jill's husband, Darryl Stickel, suffered significant injuries in a car accident that occurred in Jan- uary 2001. Darryl commenced an action in which Jill asserted a Family Law Act claim. Sometime afterward, the couple separated. Jill, as litiga- tion guardian, then brought an action on behalf of their son, Thomas. Shekter asserted a dependency claim on Thomas' behalf, including an allegation that Thomas had been deprived of financial support he might otherwise have expected to re- ceive from his father had the accident not occurred. "The intention was to leave open the argument that but for the accident, the dependant would have received more than what he is entitled to under the support guidelines," Shekter explains. Good Faith in Canadian Insurance Law is a current looseleaf that will help give practitioners and insurance professionals the information they need when dealing with bad faith claims in insurance law. This book covers issues such as: whether there is an implied obligation of good faith in contract the issues raised by such an obligation the application of the obligation of good faith to insurance in Canada a critical analysis and summary of existing law detailed suggested approaches to bad faith claims An important resource for anyone doing insurance-related work Practitioners will gain a solid understanding of the principles of the implied obligation of good faith and get practical guidance on handling their case based on existing case law and analysis. Insurance industry professionals and in-house counsel will get a better sense of their obligations and more clarity on the limits of their obligations. Counsel will benefit by understanding how to avoid and respond to bad faith claims and manage litigation more effectively. Good Faith in Canadian Insurance Law connects case law, legislation, and commentary with respect to bad faith claims. www.canadalawbook.ca WINSOR_Good Faith in Insurance Law (LT 1-4x3).indd 1 LTXXXX www.lawtimesnews.com 9/24/08 1:40:33 PM The lawyer postulates cir- cumstances where the accident deprived a father (or moth- er) of a high income earning potential. "If you can prove that the marriage would have sur- vived but for the accident, and that the child would have grown up in unmitigated luxury that the parent would have lavished on the child, the difference be- tween what's available under the FLA guidelines and what the child would have received had the accident not occurred is a measure of the child's finan- cial loss — and it should come out of the father's pot, because that's what he would have spent on the child absent the accident that caused the separation of the parents," Shekter says. Ian Leach of Lerners LLP's London office, who represented the defendants Hassan Lezzaik and Coventry Connections Inc. moved to strike the financial support element of the depen- dency claim. He also sought a declaration that the claim not be interpreted to permit the ad- vancement of damages derivative to or duplicative of those being advanced against Darryl. "Our primary concern was that the pleadings opened the door for double recovery," Leach says. served a supplementary fac- tum that made it clear he was seeking a distributive and not a duplicative award. "Rather, the claim is for a distributive recovery pursu- ant to which an amount which represents Thomas' loss of sup- port is deducted from Darryl's award for loss of income and is awarded directly to Thomas," wrote Justice Wailan Low of the Superior Court of Justice. "The theoretical foundation for such a distributive award is said to arise in part from the breakup of the family and in part because of the long passage of time it has taken to bring the father's action to trial. Further, there is the possibility that if and when the father receives a As it turned out, Shekter 'The decision means that the claim advanced is just an alter- native category of loss,' said Christine Fotopoulos. settlement or a judgment in re- spect of his past and future eco- nomic loss, the benefits thereof may not be trickled down to the plaintiff despite his economic deprivation as a consequence of the accident." Otherwise, Low had no problem dismissing the argu- ment that the derivative nature of Thomas' claim operated as a bar to its advancement. "[FLA] claims are all deriva- tive in that but for the loss of ability to function suffered by the injured person, there would be no consequential loss to the Family Law Act claimant," Low wrote. "Accordingly, the fact that the claim is derivative can be no logical bar to recovery under the [FLA]." Still, Leach is not unhappy with the decision. "In a way, the defendants obtained what they wanted," he says. "Once it's determined that the relief the plaintiff sought was distributive, nobody will be asked to pay for the same income loss twice. It will be ap- portioned between the father and the son." Christine Fotopoulos, an insurance lawyer with Borden Ladner Gervais LLP's Toronto office, is of the same view. "The decision means that the claim advanced is just an alter- native category of loss," she says. "Justice Low doesn't open the door for double recovery at all; to the contrary, he closes it." Which is not to say the deci- sion is of marginal significance. "The outcome does bring to the fore the ramifications of family breakdown on a personal injury claim," Leach says. The lawyer remains dubious, however, that Shekter's substan- tive argument regarding Thom- as' entitlements will succeed. "The earlier cases seem to support the notion that the sup- port guidelines are intended to cover the parent's obligations, and it seems to me that the plaintiff 's argument here is try- ing to circumvent that," he says. However that may be, Stickel raises an ethical problem for the plaintiff 's bar. "The interesting professional question will become how a lawyer deals with cases where he represents the entire family, because once you start talking about distributive awards, the possibility of conflict becomes a live issue," Shekter says. LT

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