June 26, 2018 by David Gambrill
If you can’t find your itinerant clients, have they failed to cooperate with your defence of an auto insurance liability action?
An Ontario court recently ordered Gore Mutual Insurance Company to pay a $300,000 balance owing on a settlement judgment, after finding that the inability of the company and its lawyers to locate their insured car owner and her son (who was involved in an accident) did not mean the car owner client was trying to evade the legal process.
Alan Stewart was involved in an auto accident with Michael Ruddell in 2008. Stewart’s mother, Gayle Bass, was the owner of the car insured by Gore.
Between 2008 and 2010, Gore was in contact with Bass to provide information about the whereabouts of her son, who was a key witness in the case. The insurer and its lawyers then lost track of Bass, who frequently changed addresses, sometime in late 2010.
Ruddell ultimately obtained a settlement of $300,000. The only issue at trial was which insurance company would pay it – Stewart/Bass’s (Gore) or Ruddell’s (Allstate Insurance Company of Canada).
In arguing that it should not have to pay, Gore cited the difficulties in finding either Stewart or Bass as proof that they failed to co-operate with the insurer in defending the case, thereby voiding the insurance policy.
The court agreed that Stewart, a key witness in the case, did not provide much assistance to Gore. But the insurer’s difficulties in trying to locate Bass did not mean she was uncooperative, the court found.
The insurer tried to contact Stewart through Bass, who advised Gore’s adjuster in 2008 that her son worked as a rigger in the entertainment industry and therefore switched job locations frequently. When Bass supplied her son’s contact information, she notified the adjuster that her place in Wasaga Beach, Ont. would be sold in a month. After the sale, she had a temporary address in Verdun, Que.
Two years later, when Ruddell’s statement of claim was released, a Gore broker contacted her at a new residence in Sainte-Marguerite-du-Lac-Masson, Que.
In 2014, Bass lived in Orangeville, Ont., where she told an investigator hired by Allstate that she spent much of her time in the Laurentians in Quebec.
The court noted that Bass was helpful whenever Gore and Allstate representatives had managed to track her down. A big part of the problem, though – outlined at length in the decision – was a five-year history of repeated attempts to contact her at addresses known to be out of date.
“I do not wish to be critical of Gore, counsel, or others who thereafter looked for [Bass], but there were a series of obvious errors made in trying to locate her,” Ontario Superior Court Justice Nakatsuru wrote in Ruddell v. Gore, released Friday.
“Firstly, counsel waited some four months after the letter of Sept. 20, 2010 was sent to her at the Sainte-Marguerite-du-Lac-Masson [address] to try and reach her. It [the September 20 letter] was sent to the wrong address.
“Then it was not until some nine months after that when counsel received no reply that another attempt to contact her was made. The letter was again sent to the Wasaga Beach address that Gore knew was sold over a year before. Not surprisingly, she could not be located,” Justice Nakatsuru wrote.
After, any further effort to contact Bass or serve her with documents meant that documents were consistently sent to the Wasaga Beach or Verdun addresses, where it was clear Bass no longer lived.
“No one seemed to have thought it might be helpful to try and make more inquiries directed to the Sainte-Marguerite-du-Lac-Masson address which was actually her last known address.”