Adjuster’s alleged comment about “no need to sue” for payment of a vehicle loss at issue in limitations case

An adjuster’s alleged comment leading an insured to believe there was “no need to sue” an insurer for payment of a vehicle loss may be a legitimate defence against an expired limitation period, and is thus a genuine issue for trial, the Ontario Superior Court has found.
In Whorpole v. Echelon General Insurance, the court cited two other genuine issues for trial.
One is whether an action related to 1) property damage payable and 2) an insurer’s duty of good faith and fair dealing are in fact two separate causes of action, therefore suggesting different limitation period regimes.
Another is whether the two-year limitation period to bring actions on behalf of a deceased trumps the one-year limitation period for property damage claims under the Insurance Act.
In making these findings, the court denied Echelon’s motion for summary judgment to throw out a property damage claim and a good faith action, on the basis that the case included three genuine issues for trial.
Edith Whorpole suffered fatal injuries on Oct. 3, 2007, when her Pontiac Sunfire was struck by a van that failed to stop at an intersection.
The plaintiff Garry Whorpole, the brother of the deceased and executor of her estate, met with an Echelon adjuster on Feb. 12, 2008. After the meeting, Echelon sent him a Proof of Loss regarding the loss of the vehicle.
The plaintiff contends the adjuster said the vehicle loss would be paid, it was just a matter of “paper work,” and that there was “no need to sue here – all amounts are set by law.” (The Superior Court said this evidence, if found to be factual at trial, may amount to “promissory estoppel,” meaning it could be a defence against the limitation period.)
Evidence at the Superior Court indicates that when the plaintiff did not hear back from the insurer, the plaintiff re-submitted the Proof of Loss twice. Subsequently, by a letter dated Oct. 9, 2008, after the one-year anniversary of the accident, Echelon rejected the claim.
According to the Superior Court decision, on Apr. 16, 2009, the smashed vehicle – with the blood of the plaintiff’s sister still showing – was left in the plaintiff’s driveway without notice, blocking the entrance to his home and causing distress to the plaintiff and his wife.
The plaintiff then retained counsel and issued a statement of claim on Oct. 1, 2009, claiming the amount of the vehicle loss and punitive and aggravated damages for breach of acting in good faith and fair dealing.
Echelon sought to dismiss the case, noting it had been commenced after the one-year limitation period defined in s. 259.1 of the Insurance Act.
The court ruled against Echelon, given the genuine issues for trial cited above.