Action by the insured for interpretation of a long-term disability plan. The insured was on long-term disability after she was injured in a motor vehicle accident. She received a global amount from the defendant in settlement of the motor vehicle litigation. The insurer deducted from her benefits payments some of the money she received in settlement for wage compensation; otherwise, she would be overpaid for that head of damage. The plan included a provision which stated that if a lump sum payment is made under judgment or settlement for loss of future income or earning capacity, the insurer will be "entitled to make a determination of the amount of compensation this represents on a monthly basis and to reduce the benefits for each month after the settlement or judgment by the amount of the Employee's overcompensation." The court held that the insurer was entitled to deduct an amount each month for wage compensation to make up for the insured's overpayment since receiving her settlement, and that the onus was on the plaintiff seeking benefits, and not the insurer, to prove how much of her global settlement amount was comprised of wage compensation versus other heads of damages.

Carter v. New Brunswick, [2013] N.B.J. No. 274, August 12, 2013, New Brunswick Court of Queen's Bench, Trial Division, J. Ouellette J.

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Subrogated claim by an insurer to recover amounts paid to the vehicle owners for property damage to the vehicle. The action was allowed and a judgment in favor of the plaintiffs was granted.

Haugseth v. Burleigh, [2013] A.J. No. 292, March 22, 2013, Alberta Provincial Court, L.L. Burt Prov. Ct. J.

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Subcontractors may not benefit from a third party lease.

Defendant construction company could not benefit from a clause in a lease between the plaintiff lessee and a third party lessor requiring plaintiff to obtain construction insurance to defeat a claim by the plaintiff against the defendant arising out of damage to the plaintiff's building caused by the defendant and its subcontractors.

Bank of Nova Scotia v. Lockerbie & Hole Industrial Inc., [2013] O.J. No. 1167, March 14, 2013, Ontario Superior Court of Justice, E.M. Morgan J.

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An insurer has 6 years to file a claim against an insured for reimbursement of proceeds

The application by an insured under a long term disability policy ("Catalano") to dismiss an action by the disability insurer ("Sun Life") seeking to recover insurance monies pursuant to a reimbursement agreement was dismissed where the Court held that the applicable limitation period was six years.

Sun Life Assurance Co. of Canada v. Catalano, [2012] B.C.J. No. 2566, November 28, 2012, British Columbia Supreme Court, J.E.D. Savage J.

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The right to subrogate parrallels the right of the insured to recover damages

An insurer may not bring a subrogated claim against an employee of an insured where the insured has no right to claim against the employee.

Portage La Prairie Mutual Insurance Co. v. MacLean, [2012] N.S.J. No. 520, October 1, 2012, Nova Scotia Supreme Court, P.J. Duncan J.

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A duty to defend is owed where a lawsuit raises a possiblity of coverage under the policy

An appeal by an insurer from an order that it defend its insureds and reimburse them for defence costs. The appeal was dismissed.

Meridian Construction Inc. v. Royal & SunAlliance Insurance Co. of Canada, [2012] N.S.J. No. 450, August 23, 2012, Nova Scotia Court of Appeal, M.J. Hamilton, J.E. Fichaud and P. Bryson JJ.A.

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The Nova Scotia Health Services Act permits the government to pursue nursing home care costs from injuries arising from an MVA

The Nova Scotia Court of Appeal upheld a decision finding that the provisions of the Nova Scotia Health Services and Insurance Act permit the government to pursue nursing home care costs from injuries arising from a motor vehicle action by way of subrogated action.

Slauenwhite v. Keizer, [2012] N.S.J. No. 89, February 23, 2012, Nova Scotia Court of Appeal, J.W.S. Saunders, L.L. Oland and M.J. Hamilton JJ.A.

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Relatives living in a separate and distinct household may not be entitled to fire insurance from the non resident house

An application seeking a declaration that the defendant was an unnamed insured under the policy was dismissed when it was shown that the defendant, who was a relative of the insureds, maintained a separate and distinct household from the insureds.

Jomaa v. Jomaa, [2011] O.J. No. 5468, December 2, 2011, Ontario Superior Court of Justice, D.J. Power J.

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The employee of an insured may not be sued in negligence to recover funds paid to an insured.

An appeal from an order dismissing applications to strike out third party claims. The appeal was allowed.

Howalta Electrical Services Inc. v. CDI Career Development Institutes Ltd., [2011] A.J. No. 1227, November 15, 2011, Alberta Court of Appeal, J.E.L. Côté, J.D.B. McDonald and B.K. O’Ferrall JJ.A.

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An insurer has carriage of his action even when the largest component of the claim has been subrogated to his insurer.

Insured which advanced claim for both uninsured loss and insured loss in subrogated claim was allowed to have carriage and control of action.

Zurich Insurance Co. v. Ison T.H. Auto Sales Inc., [2011] O.J. No. 4720, October 25, 2011, Ontario Court of Appeal, J.C. MacPherson, H.S. LaForme and G.J. Epstein JJ.A.

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