Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers in complex construction and property damage cases. Many of the rulings in the decision were specific to Québec civil law. In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert…
We lawyers can sometimes adopt a herd mentality. A senior lawyer or judge says something. You go back and read the case. You may be reluctant to voice your difference. That’s how we, as a profession, can just get things wrong. The example here comes from insurance law, but you can apply it to your area of expertise.
Few subjects beguile new lawyers more than the interpretation of commercial general liability insurance policies (CGL). This includes many corporate-commercial lawyers contributing to complex agreements running into hundreds of pages. Show them a CGL form, and their eyes glaze over. But most CGL policies are only a few pages long, and the longest run a few dozen pages. Once you “get” the basic structure of the agreement, as described by Justice Rothstein at paragraphs 26-28 of the 2010 Supreme Court of Canada decision in Progressive Homes v. Lombard, you’ll wonder why you ever thought the subject so daunting:
(le sommaire français suit) Discussion of the 2000 Court of Appeal for Ontario decision, Fellowes McNeil v. Kansa, in my recent article, “No Unbundling of Negligence,” has tapped into a continuing discussion of the precise ethical obligations of lawyers and law firms retained by liability insurers to defend parties in lawsuits, and who “stumble upon” information that may jeopardize the coverage and the insurer’s provision of a defence. The Supreme Court did grant leave to appeal, but the case was settled before Canada’s top court could hear it. Eleven years later, you’ll hear it here first, folks: Fellowes was wrongly decided.
Excess insurance is relatively inexpensive, and well worth the peace of mind. Lawyers tend to be born insomniacs – you don’t need anything else keeping you up at night! LawPro’s standard (mandatory) policy provides coverage with insurance limits of $1 million per claim and $2 million in the aggregate. This means there is $1 million in coverage for each claim, but no matter how many claims there are against you, the maximum payable for claims made during any policy year is $2 million.