Duty to Settle Within Policy Limits

Exercising Right of Subrogation

• 
  Common Law position (doesn’t have much force in BC now that we have a subrogation provision under s. 36):
  
  • 
    Full indemnity
    
    • 
      No right of subrogation unless insured’s loss fully satisfied- policy limit irrelevant
      
    • 
      Full indemnification required only re insured loss
      
    • 
      Subrogation right unaffected by non-recovery for uninsured losses
      
  • 
    Willumsen et al v. Royal Insurance
    
    • 
      Building and land subject to purchase agreement; damage to building; shortfall in purchase price; only building insured; partial indemnity for building
      
    • 
      No subrogation right until full indemnity for building
      
    • 
      Insurer’s subrogation right unaffected by shortfall in land value
      
    • 
      In determining whether an insured has been fully indemnified by a 3^rd party for the insured loss, the courts will carefully scrutinize the payments made by the 3^rd party to determine whether they are attributable to the insured’s losses or the uninsured losses
      
  • 
    Full indemnity includes recovery for reasonable cost of action or settlement of 3^rd party claim
    
    • 
      Partial indemnity by insurer
      
    • 
      Insured recovers from 3^rd party for insured loss
      
    • 
      No reimbursement unless net recovery from 3^rd party and insurer exceeds insured’s actual loss (Confederation Life Ins. v. Causton)
      
      • 
        Insured suffered injuries arising out of a car accident caused by the negligence of the 3^rd party- after receiving partial compensation for lost wages from the insurer, insured went after 3^rd party for wage loss and other damages. After fees were taken care of, only 75% of loss covered
        
      • 
        Held: no subrogation because the insured was not fully indemnified for her wage loss and had not been over-indemnified by the combination of 3^rd party payment and insurance proceeds
        
  • 
    Rationale for full indemnification requirement
    
    • 
      Subrogation preserves indemnification principle
      
    • 
      No risk of windfall absent full indemnification
      
  • 
    Preserving insurer’s subrogation interest
    
    • 
      Loss partially insured or exceeds policy limit- insurer interested in outcome of 3^rd party action because it can potentially prejudice insurer’s interests
      
    • 
      Insured obliged to protect insurer’s subrogation interest (Globe & Rutgers Fire Insurance v. Truedell)
      
      • 
        Insured obliged to pursue 3^rd party claim diligently and in good faith
        
      • 
        Claim against 3^rd party not limited to difference between loss and insurance amount
        
      • 
        Insured must claim full amount possible from 3^rd party
        
      • 
        Test for due diligence and good faith: did the insured claim less than what they honestly and in good faith believed was wise to accept in the circumstances? (Truedell)
        
        • 
          Truedell had lots of properties- some insured and some not. He was able to collect the maximum amount for insured structures, but that was only 11% of the losses. Accepted a settlement which he thought was reasonable in the circumstances- insurer claimed that it was not consulted and should receive some money back
          
        • 
          there was no bad faith because he honestly felt that the best thing to do in the circumstances was to accept a settlement, so the insurer could not claim subrogation
          
      • 
        Insured liable to insurer for failure to settle loss against 3^rd party for full amount
        
      • 
        No presumption of bad faith wehre insured settles for less
        
      • 
        Insured’s motivation relevant (Davis- deliberately asked for less than he should have)
        
• 
  Statutory Modifications
  
  • 
    Indemnification (full or partial) or assumption of liability for insured loss pursuant to insurer’s contractual obligation is enough to trigger right of subrogation (BCIA s. 36, BCI(V)A s. 84(1))
    
    • 
      36(1): the insurer, on making a payment or assuming liability under a contract, is subrogated to all rights of recovery of the insured against any person, and may bring an action in the name of the insured to enforce those rights
      
  • 
    who controls subrogated claim where insured partially indemnified?
    
    • 
      BCI(V)A s. 84(2), (3)
      
      • 
        Loss of or damage to vehicle or use- insurer has carriage (2)
        
      • 
        All other losses where parties disagree, court to make an order it considers reasonable having regard to parties’ interests (3)
        
  • 
    General Insurance Contracts: BCIA Part 2
    
    • 
      S. 36 silent on dominus litis (Farrell Estates Ltd. v. Canadian Indemnity Co- explained and affirmed in Zurich Ins. Co. v. Ison TH Auto Sales Inc)
      
      • 
        Subrogation provision/clause only alters common law re pre-conditions for exercise of insurer’s subrogation rights
        
      • 
        Provision silent on control of litigation where insured not fully indemnified
        
      • 
        Common law prevails- insured dominus liti until fully indemnified- express language required to abrogate insured’s common law right
        
      • 
        Contrast with specific provisions in auto legislation
        
      • 
        Extent of insured’s interest relative to insurer’s interest irrelevant
        
      • 
        Insured to act in good faith- don’t prejudice insurers interest
        
      • 
        Facts: fire and explosion occurred in an apartment building where insured had 71 new cars stored in a rental space- received factory prices for them minus deductible, insurer got salvage costs and insured lost profits
        
        • 
          Insured is in control of the litigation until it has been fully indemnified for its insured and uninsured costs
          

• 
  Rationale:
  
  • 
    fairness to insured where insurer pays or assumes liability for small part of insured’s loss, e.g. Truedell
    
  • 
    avoids multiple 3^rd party claims
    
  • 
    contractual freedom: insurers can specifically address carriage of litigation in policy
    
  • 
    insurers’ practice- agreement re control of litigation at time of claim
    
  • 
    court not to assist insurers who fail to protect themselves
    
• 
  effect of settlement with 3^rd party on insurer’s subrogation rights
  
  • 
    Somersall v. Friedman
    
    • 
      Insureds entered into limits agreement with tortfeasor without notice to insurer- said that they would not pursue tortfeasor for more than his liability limits
      
    • 
      Insureds sought to recover unsatisfied losses from their own insurer under underinsured motorist coverage
      
    • 
      Issue: is insurer bound by limits agreement?
      
    • 
      SCC: no dishonesty or malice in limiting claim to 3^rd party’s liability insurance
      
    • 
      No breach of duty to act in good faith to preserve insurer’s subrogation right
      
      • 
        Pragmatic approach- insurer’s right was not compromised in substance because 3^rd party was impecunious
        
    • 
      Dissent: Characterization of Freidman’s impecunious was mere speculation given lack of evidence. It is the existence of the limits agreement which calls the insured’s fulfillment of the duty of good faith into question in the first place.
      
      • 
        Therefore it is circular reasoning to rely on the existence of the agreement of evidence as to the fulfillment of the duty. The majority incorrectly places the state of financial value of the insurer’s subrogation right at the center of the good faith analysis
        
      • 
        They should have looked beyond the 3Ps financial status and should have assessed the Somersall’s actions according to the same standards of good faith that the Canadian courts have applied in assessing an action in relation to the uninsured claims where the insurer has conduct of recovery action.
        
  • 
    Auto Insurance
    
    • 
      Insurer’s subrogation rights preserved notwithstanding settlement with or release of 3^rd party by insured
      
      • 
        BCI(V)A s. 84(6): “a settlement or release does not restrict the rights of the insured or the insurer under this section unless the insured or insurer, as the case may be, concurred in it”
        
    • 
      Dwyer v. Liberty Insurance Co of Canada
      
      • 
        Facts: there was a settlement and the insured went to the insurer for the remainder of the loss- insurer wanted to claim losses from 3^rd party despite the settlement
        
      • 
        Single action rule unaffected; matter res judicata between insured and 3^rd party
        
        • 
          Unfair to 3^rd party if insurer can disregard release or settlement
          
        • 
          Contrary to underlying principle re subrogation
          
      • 
        Discourage settlement with 3^rd parties
        
      • 
        Codifies insurer’s right of action against insured if latter disregards former’s subrogation interest in settlement
        
      • 
        Insurer entitled to recover from insured
        
      • 
        The statutory provision does nothing more than to codify the insurer’s common law right to claim damages from an insured if the insured resolves its cause of action against the 3^rd party without regard to the insurer’s subrogated interests and without the insurer’s consent
        
• 
  Prorating amount recovered where indemnity partial
  
  • 
    BCIA s. 36(2) If the net amount recovered after deducting the costs of recovery is not sufficient to provide a complete indemnity for the loss or damage suffered, that amount must be divided between the insurer and the insured in the proportions in which the loss or damage has been borne by them respectively.
    
  • 
    Recovery from 3^rd party action less than full indemnity- insurer’s recovery proportionate to percentage of loss borne
    
  • 
    Illustration
    
    • 
      Policy Limit: $150,000
      
    • 
      Deductible per occurrence: $10,000
      
    • 
      Value of loss: $200,000
      
    • 
      Insurance amount paid to insured: $150,000 (75% of loss)
      
    • 
      Insured’s personal liability: $50,000 (25% of loss)
      
    • 
      Net amount recovered from 3^rd party: $120,000
      
    • 
      Insured receives 25% of $120,000: $30,000
      
    • 
      Insurer receives 75% of $120,000: $90,000
      
    • 
      Insured’s total recovery: $150,000 + $30,000 = $180,000
      

IX. VALUATION

Introduction

• 
  Once an insurer’s obligation to pay for an insured loss is triggered, it becomes necessary to determine how much to pay to fulfill this obligation
  
  • 
    Easy cases- accident & sickness (available data), liability insurance (judgment amount)
    
  • 
    Valuation can be complicated in the case of property insurance where the principle of indemnity requires a measure of the intrinsic worth of the insured property to the insured on the date of the loss
    
  • 
    Valuation of loss under a property insurance policy necessarily turns on three factors:
    
    • 
      The type of policy in question
      
    • 
      The valuation method identified in the contract
      
    • 
      The extent of the insured loss
      
  • 
    The amount of insurance proceeds payable may also be affected by contractual terms specifically designed to restrict or expand the insurer’s payment obligations
    

Valued Policy	Open Policy
Value of loss pre-determined at time of contract	No predetermined value; stated policy limit
Value binding on parties Irrelevant actual value at time of loss more or less	Recovery for value at time of loss subject to policy limit

Valued Policies

• 
  Dollar amount payable by the insurer in the event of an insured loss is specifically identified in the insurance contract
  
  • 
    Value binding on parties- irrelevant actual value at time of loss more or less
    
• 
  Advantages
  
  • 
    Post-loss valuation problems avoided
    
  • 
    Pre-determined value regardless of ACV
    
  • 
    Policy of choice for unique items with subjective value
    
  • 
    Risk insured and premiums calculated on that basis
    
• 
  Scheduled Loss Endorsement
  
  • 
    Policy provides lower limit for valuable items
    
  • 
    Insured may insure each item separately under “scheduled property endorsement” for additional premium
    
  • 
    Not valued policy- normal rules of valuation applicable
    

Re Art Gallery of Toronto and Eaton

• 
  Central question is whether the parties intended the contract to be a valued policy or an open policy
  
• 
  Insurance policy was issued on 6 paintings owned by the Art Gallery of Toronto- identified the paintings as having an insured value of $640,000
  
  • 
    policy also provided that the insurer’s liability was limited to “the amount set opposite the respective articles covered hereunder, which amounts are agreed to be the values of said articles for the purpose of this insurance”
    
    • 
      given this provision, court concluded that it was a valued policy
      
• 
  contrast with Freesman v. Royal Insurance Co of Canada, in which a policy of homeowner’s insurance included coverage for a diamond ring which had been appraised by the insured’s independent jeweler for $13,886 and this amount was included in the coverage summary- policy endorsement provided that the items listed in the schedule were “insured for replacement value, but not for more than the amount shown in the coverage summary”
  
  • 
    court found that the policy wording did not clearly express the intention of the parties to have the value of loss predetermined by the figures identified in the contract
    

Raymond v. United States Fire Insurance Co

• 
  insured obtained an all-risk policy of insurance on a model of the Notre-Dame Cathedral of Paris which the insured had constructed
  
  • 
    before the policy was entered into, the model was appraised at the request of the insurer
    
  • 
    appraiser’s report identified the model as a work of art and assigned a value of $85,000
    
  • 
    insurance policy referenced the $85,0000 and the appraiser’s report
    
• 
  model was destroyed by fire
  
• 
  insured said it was a valued policy, insurer said it wasn’t a work of art and only wanted to pay $6,000
  
  • 
    court ruled in favour of the insured but declined to expressly classify the contract as either a valued or an open policy
    
    • 
      treated it as a dispute between expert valuations and held that, in the circumstances, the $85,000 figure should be accepted as the prima facie value of the property because it was the insurer’s appraiser who determined it to be a work of art- “when the insurers are or their agent is party to an appraisement of the property for the purpose of the insurance, the amount so settled is probably prima facie proof of value, but otherwise the amount stated in the policy as the amount insured on any particular subject is not even prima facie evidence of the value”
      
    • 
      premiums were charged with the higher appraisal value in mind
      

Unvalued or Open Policies

• 
  when a policy is classified as an open policy, so that the amount of insurance proceeds payable must be evaluated as of the date of loss, the wording of the policy also determines the method by which the loss will be valued
  
  • 
    most open property insurance policies provide for loss payment on the basis of “actual cash value” or “replacement cost”
    
• 
  actual cash value
  
  • 
    BC Reg 447/83
    
    • 
      1(1) "actual cash value" means the average market price a purchaser would have paid for an insured vehicle or other insured property immediately before loss or damage occurs to the vehicle or other property
      
  • 
    means “the intrinsic value of the physical property to the insured at the time of the loss”
    
  • 
    options for calculating intrinsic value:
    
    • 
      replacement cost less depreciation
      
    • 
      market value
      
    • 
      tax assessment value
      
    • 
      rental value
      
    • 
      investment value
      
  • 
    most appropriate method of calculating actual cash value must be determined on a case-by-case basis, taking into account all the conditions and circumstances relevant to the insured property value at the time of the loss, including:
    
    • 
      the extent to which the insured property may have already depreciated from its original value at the time the loss occurred
      
    • 
      the use being made of the insured property
      
    • 
      the uniqueness of the insured property
      

Valuation Methods

• 
  Repair Cost less Enhanced Value from Repairs
  

• 
  Repairs possible
  
• 
  Cheaper to repair compared to replacement
  
• 
  Recovery limited to repair cost
  
• 
  Repairs enhances property value, deduction for betterment
  
• 
  Consistent with indemnification principle
  
• 
  No presumption of betterment - Malcolm E. Walker & Sons Ltd. v. Co-operative Fire Ins. Co
  
  • 
    Improved property after repairs not indicative of betterment
    
  • 
    Onus on insurer to prove increased value for insured after repairs
    
  • 
    Case at bar: No evidence to support deduction for betterment
    

• 
  Replacement Cost
  

• 
  Repair impossible or impractical
  
• 
  Replacement cost with or without deduction for enhanced value (based on contract terms), subject to policy limit
  

Rising Replacement Cost and Inflation: Optional Loss Settlement Clause (OLSC) or Replacement Cost Endorsement (RCE)

• 
  Shortfall from deduction for betterment/depreciation factor
  

• 
  ACV of property less than replacement cost
  
• 
  E.g. 3-year-old TV damaged, average life expectancy=10 years, replacement cost=$1000
  
  • 
    Depreciation is 30% of $1,000 so insured recovers $700
    

Solution: Optional Loss Settlement Clause or “Replacement Cost Endorsement”

• 
  Protects insured against depreciation
  
• 
  Option for repair or replacement cost without deduction for depreciation/betterment
  
• 
  OLSC/RCE must be purchased separately
  

Rising Replacement Cost and Inflation

• 
  replacement cost is defined as the lower of the cost to repair or the cost to replace, without deduction for depreciation
  
  • 
    by failing to account for the depreciated value of the originally insured property, replacement cost technically violates the indemnity principle by providing the insured with compensation of greater value than the loss actually suffered
    
  • 
    valuation by replacement cost must be specifically agreed upon by the insurer and the insured- usually accomplished by including a replacement cost provision in the insurance contract, which is added to an open policy in exchange for the insured paying an increased premium
    
    • 
      replacement cost clause usually provides that if the insured opts to replace the insured property following a loss, as opposed to taking an actual cash value settlement, the insurer will pay the cost of replacement
      
• 
  replacement cost clauses typically restrict the insurer’s obligation to pay for replacement value to situations where the insured has:
  
  • 
    replaced the insured property
    
  • 
    with due diligence and
    
  • 
    with materials of like kind and quality
    
• 
  Exercising option to claim actual replacement cost under RCE/OLSC
  
  • 
    Unilateral exercise of option by insured
    
  • 
    Notify insurer of intention to claim actual replacement cost otherwise ACV
    
  • 
    Actual replacement or repair with like materials within reasonable time (Malainy v. the Canadian Indemnity Co)
    
  • 
    Insured not required to keep replaced property (Barke v. Economical Mutual)
    
• 
  replacement cost clauses are different from optional repair clauses
  
  • 
    insurer may repair, rebuild or replace lost or damaged insured property (s. 29 stat cond. 13)
    
    • 
      option not available where dispute resolution process initiated under s. 12
      
    • 
      notify insured of intention to do so within 30 days after receiving proof of loss
      
    • 
      work must begin within 45 days after receiving proof of loss
      
    • 
      insurer must proceed with due diligence to complete work within reasonable time
      
    • 
      exercising option creates new contract
      
    • 
      insurer obliged to complete work even if cost exceeds policy limit
      
    • 
      insurer not entitled to deductions for betterment
      
  • 
    optional repair clauses are statutorily required in fire and automobile insurance contracts in order to protect the insurer from liability to pay the full pecuniary value of the loss, if the loss can be more cheaply made good otherwise
    
  • 
    optional repair clauses give the choice of having the loss resolved by repair or replacement rather than cash settlement to the insurer rather than to the insured
    
  • 
    under RCC, insurer’s obligation to replace property is generally governed by policy limits, but when an insurer exercises its option of repairing or replacing the property under an optional repair clause, the insurer is liable for all costs involved even if those costs exceed policy limits
    

Optional Repair Clauses	Replacement Cost Endorsement
Stat. condition: part of all contracts under BCIA Part 2	Contractual term
Insurer exercises option Work to commence within 45 days from proof of loss; proceed with due diligence; complete work within reasonable time	Insured exercises option
Option creates new contract Repair/ replacement cost may exceed policy limit	Insurer’s obligation limited to replacement cost subject to policy limit

• 
  courts tend to generously interpret these replacement cost conditions in a manner which favours the insured
  
  • 
    insured cannot be held to strict compliance with the due diligence requirement where the insured’s delay in replacing or rebuilding the insured property has resulted from the insurer’s refusal to promptly confirm coverage for the proposed replacement
    
  • 
    the insured’s obligation to rebuild with material of like kind and quality can be fulfilled even if the insured rebuilds to different specifications or on a different site in order to meet the requirements of building or planning bylaws
    
  • 
    in some circumstances the insurer may be obliged to help finance the insured’s replacement efforts by providing the insured with an immediate actual cash value payment followed by a “top up” to the replacement cost once the insured has fulfilled its obligation of replacing or rebuilding the property
    
  • 
    once the insured has replaced the property and received replacement cost from the insurer, the insured is under no obligation to keep the replacement property unless the contract states otherwise
    
• 
  Problems with Replacement Cost Endorsement
  
  • 
    (1) Cash-strapped or Impecunious Insured
    
    • 
      Actual replacement/repairs precondition
      
    • 
      If insured cannot afford replacement/repair cost is insurer obliged to advance money for replacement/repairs?
      
    • 
      Carlyle v. Elite Ins. Co: No obligation to pay until work is done
      
      • 
        Facts: claimed on a fire insurance policy which contained an optional loss settlement clause which provided the insured to elect to make settlement on the basis of the cost of repairs to or the replacement cost of building.
        
      • 
        Law: The option clause clearly contemplates that the insurer will pay the cost of replacement after the replacement is complete. As a matter of practice, it appears that insurers will generally pay the actual cash value where that is less and may make other progress payment, but the policy does not require them to do so.
        
      • 
        The insurer is not obligated to give you a cash advance even if it is ACV.
        
    • 
      Is this consistent with insured’s reasonable expectations?
      
      • 
        Would have thought he would get money to do the work and get the actual cash value
        
  • 
    (2) Insured not obliged to keep replaced property under RCE
    
    • 
      Barke v. Economical Mutual Insurance
      
      • 
        Insured entitled to return or sell replacement property and keep cash
        
      • 
        Facts: Insured claimed replacement of personal property under RCE and then returned some items prior to claiming reimbursement, ACV less than replacement cost
        
      • 
        Trial Judge: Fraud, insured not entitled to recovery
        
      • 
        C.A.: No fraud and no obligation to keep items replaced under RCE
        
      • 
        The policy could have provided that the goods must be replaced or repaired and retained or replaced or repaired with an intention to replace, but didn’t. Fraud if never purchase items
        
      • 
        Justification: They emphasized ownership; owners are at liberty to deal with the property any way they chose. All that the RCE is saying is how to value the loss. Not a case that deals with how owners should deal with the property.
        
      • 
        Policy: In addition to being very difficult to enforce any attempt by the insurer or by the courts to impose an obligation on the insured to retain replaced property this would fly in the face of fundamental legal principles favouring the free movement of property.
        

Dispute Resolution Process

• 
  BCIA s. 12:
  
  • 
    Disagreements about matters stated in s. 29, stat. cond. 11: value of insured property, value of property saved, nature and extent of repairs or replacements required (or adequacy of those made), amount of loss or damage
    
  • 
    Right independent of other questions, e.g. insured’s right to recover
    
  • 
    Insurer required to notify insured of dispute resolution procedures: Insurance Regulation [Revised Regulation] 403/2012, s.3
    
  • 
    Insured or insurer may demand dispute resolution process in writing after proof of loss delivered to insurer. S. 12(3)
    
  • 
    Parties appoint representatives who appoint an umpire (4)
    
  • 
    Representatives determine disputed matters or submit difference to umpire (6)
    
  • 
    Each party pays their representative and shares cost of umpire (7)
    
  • 
    May be subject to special costs for failing to appoint a representative (9)
    
  • 
    Participation in DR does not constitute waiver: s. 14(2)(a)
    
• 
  Rationale for DR Process
  
  • 
    Part of the movement to limit reliance on judicial/adversarial system for resolving disputes
    
  • 
    Decentralizes decision-making authority
    
• 
  S. 29 Statutory Condition 11
  
  • 
    11. (1) In the event of disagreement as to the value of the insured property, the value of the property saved, the nature and extent of the repairs or replacements required or, if made, their adequacy, or the amount of the loss or damage, those questions must be determined using the applicable dispute resolution process set out in the Insurance Act, whether or not the insured's right to recover under the contract is disputed, and independently of all other questions.
    
  • 
    (2) There is no right to a dispute resolution process under this condition until
    
    • 
      (a) a specific demand is made for it in writing, and
      
    • 
      (b) the proof of loss has been delivered to the insurer.
      

Future Contingencies

• 
  regardless of whether an open policy provides coverage on the basis of actual cash value or on the basis of replacement cost, a proper valuation of property on the date of loss should not take into account possible future events
  

Leger v. Royal Insurance Co

• 
  fire insurance policy provided coverage on the basis of actual cash value
  
• 
  prior to the loss occurring, insured had expressed an intention to demolish the insured building and, on the date of loss, the building was the subject of a demolition order issued under a municipal bylaw
  
  • 
    insurer argued that the insured property had no intrinsic value on the date of loss because it would have been demolished anyway
    
    • 
      court rejected this argument- the intrinsic value of the building on the date of loss could not be diminished by a potential, but uncertain, future demolition
      
• 
  note also Cyrand Investments Ltd v. Aetna Insurance Co: despite the fact that the insured had applied for a demolition permit for the insured property and had given eviction notices to the tenants of the property in preparation for its destruction, the insured property was not without value when it was destroyed by fire prior to the planned demolition
  

Datatech Systems Ltd. v. Commonwealth Insurance Co

• 
  the fact that the insured had entered into a sales agreement which obliged the insured to remove the insured building from the land should not be taken into account in determining the value under a replacement cost endorsement because, until the insured property was actually destroyed, the insured had a number of options for dealing with the property in a way which preserved its value
  

Newfoundland (Attorney General) v. Commercial Union Assurance Co of Canada

• 
  a prospective event which is sufficiently certain may affect the value of the insured property on the date of loss and therefore may be included in the court’s valuation assessment
  
• 
  insured (government) had called for tenders for the demolition of the property, and then it was damaged by fire
  
• 
  court found that the government had made a definitive decision to proceed with demolition of the property and so it was of no value to the government on the date of loss- there was no reason to believe that the demolition would not have gone forward if the fire had not occurred
  

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