Insurer’s contractual obligations and auto injury negligence action can be severed, Nova Scotia court rules

An insurer’s contractual obligations in an auto injury case can be severed from the main negligence action against a driver even though the two legal proceedings share “some common question of law or fact” as long as the severance expedites the trial process for the plaintiff, the Nova Scotia Court of Appeal has ruled.
In Kirby v. Dominion of Canada General Insurance Company, Brenda Jessica Kirby launched two legal actions after being hit and injured by a car, owned by Mark Robert Strickland, in February 2000.
In an amended statement of claim, Kirby sued Strickland for negligence in causing her injuries and Dominion for punitive or exemplary damages in failing to treat her with utmost good faith.
Specifically, Kirby argued Dominion, which had already paid out about Cdn$8,000 to her, was contractually bound to pay no-fault benefits beyond the four-year accident period noted in the policy.
Dominion applied to have the claim against it severed from the claim against Strickland, and the lower court ordered the severance. Kirby asked the Appeal Court to consider “fresh evidence” that she claimed would cause the severance to be annulled.
The evidence included Dominion’s lawyers and Strickland’s lawyers asking similar questions upon discovery, suggesting the two parties had a “common question of law” and therefore no reason to sever the actions.
The appeal court noted the lower court justice took these commonalities into account when it ordered the severance. But the overriding question was whether the severance would expedite proceedings under the Rules of Civil Procedure, the Appeal Court noted.
“Kirby v. Strickland, for whatever reasonsis seven years old,” the Appeal Court quoted the lower court as ruling. “It’s a slow boat to China. Mr. [Philip] Chapman [Dominion’s lawyer] doesn’t want to get on that boat. Frankly, I don’t blame him.”