Disclaimer: Some of the historical blogs refer to services and/or products that are predecessors to the new legal expense insurance product we refer to as BICO Legal Cost ProtectionTM. They should not be relied upon and are for informational purposes only.
Aviva ordered to pay significant costs to elderly plaintiff protected by BICO legal expense insurance policy.1
In February, 2009, Maria Persampieri was a passenger in a car when it was rear ended. She was 76 years old at the time of the accident. Her quest for damages would span almost a decade against the defendant insurer Aviva Canada (“Aviva”), whom relying on their notorious defensible program had determined that no offer to settle would be made.
Throughout the course of her litigation, Ms. Persampieri received a consistent and recurring message from Aviva: agree to a dismissal of the action without costs or proceed to trial (notwithstanding that liability was admitted at a 2015 mediation). Aviva rejected all of Ms. Persampieri’s offers to settle, including a $20,000 Rule 49 Offer in March 2017 and her last, a Rule 49 offer to settle for just $10,000, net of the applicable statutory deductible plus partial indemnity costs and pre-judgment interest.
Seven years post accident and now 84 years old, Ms. Persampieri, backed by a legal expense insurance policy from BICO, proceeded to trial for two weeks in June 2017.
A recent Ontario Superior Court of Justice decision on costs in a personal injury matter has “massive implications” for legal cost protection providers such as BICO Risk Management Inc. and, more importantly, will improve access to justice for plaintiffs, says John Rossos, chairman and CEO of the company.
“This is an authoritative ruling,” he tells AdvocateDaily.com.
The decision, written by Justice David Salmers, explicitly shifts the burden of paying for legal expense insurance to the defendant, as an assessable cost where the plaintiff has a successful legal claim.
The judge wrote that he disagreed with the defence counsel submission that the plaintiffs' disbursement for costs insurance not be allowed.
Fresh on the heels of the recent win for plaintiffs on the issue of disclosure in Jamieson v. Kapashesit1, we are pleased to announce another resounding plaintiff victory on the legal expense insurance front. In what will no doubt be a game changing decision on point, in Armstrong v Lakeridge Resort Ltd.2, Ontario Superior Court Justice Salmers rejected the existing case law, ordering the defendant to pay the BICO Legal Expense Insurance premium.
Since the introduction of legal expense insurance several years ago, the plaintiff personal injury bar has unsuccessfully sought the recovery of premiums as an assessable disbursement in successful trial or settlement outcomes. In a disappointing decision in 2015 representing the Court’s first (albeit cursory) consideration of the issue, Madam Justice Milanetti found in Markovic v. Richards3 that the premium was not payable by the defendant, noting that it was “nothing more than a discretionary expense”. Markovic has been successfully relied on by defence counsel ever since as the seminal decision on this issue.
There has been great debate in recent years over the issue of disclosure of legal expense insurance (LEI) to defendants who have relentlessly pushed for full disclosure of plaintiffs’ LEI policies (also known as “After the Event” or “ATE” insurance). There have been decisions both for and against, culminating in the January 2017 decision in Fleming v Brown 2017 ONSC 1430 (“Fleming”) which held that a legal expense insurance policy must be disclosed pursuant to Rule 30.02 of the Rules of Civil Procedure. Most lawyers presumed this was the end of the debate, and with it the strategic benefit of maintaining privilege on the terms and details of their clients’ coverage.
Fortunately, Fleming was not the last word!
Plaintiffs with tort and Accident Benefit claims should prepare for increased reductions in their awards for damages following the recent Court of Appeal Decision in El-Khodr v Lackie, 2017 ONCA 716 (“El-Khodr”). In the decision, the Court determined that the principle established in Bannon v McNeely (1998), 38 O.R. (3d) 659 (C.A.) (“Bannon”), of matching “apples to apples” in regards to the categories of awards and reduction of the same is no longer relevant.
At long last, the Court of Appeal has spoken.
We have previously discussed changes to s. 258.3(8.1) of the Insurance Act that on January 1, 2015 reduced the pre-judgment interest rate for non-pecuniary damages from 5.0% to the bank rate at the time the proceeding commenced.
In El-Khodr v Lackie, 2015 ONSC 4766 (“El-Khodr”) the Court was asked to determine if this reduction applied to cases commenced prior to the amendment date. The trial judge determined, to the relief of all plaintiffs with personal injury actions commenced before the amendment date, that the amendment did not apply retrospectively. In the absence of express or implied intention, the Court held that the change in pre-judgment interest rate was to be enacted on a go-forward basis, and to find otherwise would be a windfall for insurance companies and cause disadvantage to insured persons. This was a welcome decision to plaintiff personal injury lawyers already battling defendant insurers on the retroactive application of the rate reduction.
As is often the case with law, however, a conflicting decision followed just months later in Cobb v Long Estate, 2015 ONSC 6799 (“Cobb”). The trial judge in Cobb exercised his discretion under s.130 of the Courts of Justice Act and set a pre-judgment interest rate at 3%.
The third-party funding market changed because of a government ruling last year, John Rossos, Chairman and CEO of BridgePoint Risk Management Inc., tells the Law Times.
A Financial Services Commission of Ontario (FSCO) ruling transformed the market after saying that legal cost protection must be underwritten by licensed insurers and sold to clients through insurance brokers under the Insurance Act.
"Any private indemnity or legal cost protection must now be tied to a regulated insurance product," says Rossos, the Toronto company's founder. "Lawyers can't provide an indemnity to their clients because they are not licensed insurers."
He says the Omega General Insurance Company now underwrites BICO in Canada, where two leading global insurers with AA credit ratings reinsure the risk. Although Rossos says he strongly disagrees with the order, the company reconfigured its products into insurance policies to protect his clients.
Canadian legal protection insurance is a growing – and evolving – industry sector. This year has seen a shake-up in the way things are done.
It’s a fairly unique form of insurance and, traditionally at least, there have been few players in the Canadian market. But that’s changing – Aon, ARAG, and Arch have all recently entered the space.
And between the two most established companies offering legal cost protection in Canada, there’s no love lost after recent industry change, allegedly prompted by one company to the detriment of the other.
DAS Insurance and BridgePoint Indemnity Company (BICO) are perhaps the two most prominent pioneers in this space – with DAS historically offering insurance, and BICO offering a service as indemnity protection.
What has been a small industry to date is growing as the Canadian litigation funding market sees new entrants and the restructuring of existing players. Competitors are embracing starkly different models, which presents claimants and lawyers with the challenge of fitting the right type of funding to the right case.
“We’ve been a bit slower than England and the U.S. to get into third-party funding,” comments Paul Michell of Lax O’Sullivan Lisus Gottlieb LLP of Toronto. “We have had a few homegrown players, but now there are lots of conferences and promotional materials that show international groups are moving into the area.”
Just weeks after BICO Risk Management Inc., formerly BridgePoint Indemnity Company Inc., announced its new legal expense insurance product, BICO Legal Cost Protection™, the market has provided “overwhelming” support, says company chairman and CEO John Rossos.
“We’ve had a massively positive response from clients both converting to the new product, and those interested in purchasing new BICO insurance policies,” he tells AdvocateDaily.com. “It has been very favourable.”
Canadian federal and provincial financial regulators have approved the legal expense insurance product, which is underwritten by Omega General Insurance Company and reinsured by two of the largest global reinsurers who have become BICO’s key strategic partners, says Rossos.
"Being in partnership with global reinsurance partners with A+ and A++ credit ratings ensures that our clients have more-than-adequate protection in place to support our coverage," he says. "We arguably have access to more insurance capacity for legal expense insurance than any other insurer in the Canadian market."
TORONTO, March 8, 2017 /CNW/ - BICO Risk Management Inc., formerly BridgePoint Indemnity Company Inc. ("BICO"), is pleased to announce that BICO Legal Cost Protection™, a new legal expense insurance product underwritten by Omega General Insurance Company, is available for personal injury litigation. BICO Legal Cost Protection™ has been fully approved by Canadian federal and provincial financial regulators and is now available to new clients across the country.
We recently reported on the settlement of our regulatory issues with FSCO and BICO is now servicing all existing contracts and working on phase two of the settlement involving our long term plan.
FSCO has now confirmed the settlement on their website and a link to the full Minutes of Settlement reviewed here: http://www.fsco.gov.on.ca/en/about/enforcement/cdo/Documents/cdo-2016-09-23.pdf
We are pleased to announce that BICO has reached an agreement with FSCO and FICOM to resume operations, effective immediately. The interim solution enables all BICO Legal Cost Protection contracts to be fully administered on original terms, including the payment of claims. Our primary concern has always been to protect the interests of the tens of thousands of BICO clients and we have worked tirelessly over the past several weeks to achieve this goal.
BICO has consistently maintained that its legal cost protection products are not insurance. However, to avoid a protracted dispute we have worked closely with FSCO and FICOM to create a long term solution that addresses their concerns. Accordingly, BICO has signed Letters of Intent with both a licensed Canadian insurer and an insurance brokerage. This partnership will allow us to offer our products across Canada with regulatory approval. We expect to have this arrangement finalized within the next 90 days or so.
Since our launch in 2013, BridgePoint Indemnity Company (Canada) Inc. ("BICO") has been routinely asked if our indemnity agreements are privileged and if a defendant can demand disclosure of the cost protection we offer.
In prior blogs, BICO noted that our indemnity agreements are subject to privilege and should not be disclosed (please see our December 31, 2015 blog on the topic). Some recent decisions on point confirm this.
In Hayes v. The City of Saint John ("Hayes") the Court reaffirmed that an indemnity agreement was subject to "litigation privilege" as the agreement was an integral part of the plaintiff's litigation strategy. The Judge noted...
BICO® was able to provide legal cost protection for a litigation guardian in Ontario, allowing their counsel, Graves & Richard Professional Corporation, the opportunity to achieve a significant trial victory on behalf of a catastrophically injured claimant.
What is legal cost protection? How can it help you? Do you need it? Are you looking for a way to level the playing field with the insurance companies and are you tired of them pushing your clients around? This one hour webcast is essential for all personal injury lawyers.
Live webinar hosted by ezCPD.ca
Wednesday, May 25 at 12:30pm
On April 11, 2016, the New Brunswick Court of Queen’s Bench set a precedent when it held that a third party financing and indemnity agreement was protected by litigation privilege. This decision was part of a motion to approve the FIA in the putative class action, Hayes v. The City of Saint John (“Hayes”). Koskie Minsky LLP and McKiggan Hebert act as counsel for the plaintiff in Hayes.
An Ontario court has awarded $800,000 in damages — 25 times more than the defendant initially offered — to a 45-year-old injured man after his lawyer obtained BICO legal cost protection and levelled the playing field between the plaintiff and the defendant's insurance company, says BridgePoint Indemnity Company chairman and CEO John Rossos.
“This case gives an excellent example of how a lawyer artfully used legal cost protection, or what is otherwise considered 'new technology' in a way that created a massive shift in the fortunes of his client,” he tells AdvocateDaily.com.
For personal injury lawyers launching a lawsuit, the standard of care is evolving to include advising clients of the availability of legal cost protection, or as European insurers operating in this market refer to it, ‘after-the-event’ (ATE) insurance, BridgePoint Indemnity Company chairman and CEO John Rossos tells Law Times.
As the article notes, Ontario courts are currently considering the treatment of ATE legal cost indemnities and insurance, which allow litigants to protect themselves from the risk of a cost order and can also be provided as a blanket guarantee for a law firm that needs protection for its disbursements.
A recent Ontario Superior Court of Justice decision highlights important legal issues concerning privilege as it relates to indemnity and funding agreements, says BridgePoint Indemnity Company Chairman and CEO John Rossos.
“This matter is instructive because it emphasizes the need for counsel to claim privilege for these types of agreements to ensure the client’s interests are properly protected,” he tells AdvocateDaily.com.
Since BridgePoint Indemnity Company (Canada) Inc. (BICO) introduced BICO Legal Cost ProtectionTM to the Canadian legal market, a fundamental question posed by the personal injury bar is whether the indemnity fee charged is recoverable from the defendant. Until recently, there has been no Canadian decision addressing this issue.
One of the advantages that BICO Legal Cost ProtectionTM from BridgePoint Indemnity Company (Canada) Inc. (“BICO”) offers is that it is a useful tool in defending motions or applications for security for costs. We have previously written about the outcome of such motions and applications on this blog. A decision released by the Ontario Superior Court of Justice on July 21, 2015 reinforces the court’s acceptance of BICO Legal Cost ProtectionTM as providing adequate security for a defendant.
The controversy around consumer law giant Slater & Gordon shouldn’t be used as a pretext to shut down debate in Canada around adopting Alternative Business Structures (ABS) for law firms, says BridgePoint Indemnity Company Chairman and CEO John Rossos.
“Let’s take a look at ABS as a potential structure and think about how it can be implemented in a way that addresses the legitimate concerns of the legal profession while advancing sound public policy,” he tells AdvocateDaily.com.
The law firm that represents Cape Breton residents who launched a class-action lawsuit claiming the Sydney tar ponds exposed them to contaminants has concluded the litigation should stop after 11 years of legal wrangling.
The Halifax-based law firm Wagners issued a statement late Tuesday saying the court action, which started in 2004, has grown too complex and costly after several major setbacks.
The plaintiffs were granted certification as a class in May 2012, but the federal and Nova Scotia governments persuaded the Nova Scotia Court of Appeal to decertify the lawsuit in December 2013.
Join us on November 19-20 at the Canadian Institute’s Inaugural Litigation Funding Conference. John Rossos, Principal & Co-Founder of BridgePoint Financial Group, David Knowles, BICO Barbados’s Chief Risk Officer will be speaking about Integrated Litigation Risk Management — the Next Generation of Litigation Finance.
Details and schedules can be found at: http://www.canadianinstitute.com/LitigationFunding
BICO has been approached by several lawyers as to the defendant’s recognition of BICO’s Indemnity Agreement to settle security for costs motions or applications. Recently, one lawyer has been able to obtain a consent Order to settle such an application on the basis that an Indemnity Agreement had been obtained from BICO. BICO is pleased to have assisted this lawyer and client in this important application.
With the introduction of legal cost protection, defendant insurers are increasingly requesting the production of legal cost protection indemnity agreements (Indemnity Agreement). In some cases, it is simply requested as an undertaking from discovery; in other cases, the defendant insurer is arguing that disclosure is required based on statute or regulatory provisions that require the disclosure of “insurance” contracts.
Irrespective of the defendant insurer’s motivation for seeking production, the question is whether these agreements are privileged and required to be produced?
In a recently published article in Advocate Daily, the issue of legal cost protection and the question of privilege is fully explored, including case references and established precedents that are very helpful when navigating this evolving legal topic.
The theory held by many personal injury lawyers that impecunious and therefore “judgment proof” plaintiffs are immune to adverse cost exposure was further tested in the costs endorsement in Lakew v. Munro, 2014 ONSC 7316 (CanLII) (“Lakew”). We have previously discussed this topic in our May 2014 blog on Leochko v. Rostek, 2013 ONSC 7899 (CanLII).
In Lakew, this motor vehicle accident-related action was tried before a jury in June 2014. The jury found that the accident did not cause her any injuries. The defendant had argued a threshold motion during the jury deliberations, but this was withdrawn upon the jury’s verdict. The Court invited both parties to submit written cost submissions.
In March 2004, five residents of Sydney, Nova Scotia commenced a class action with respect to the contamination of their properties as a result of the operation of coke ovens and steel operations in the nearby Sydney Tar Ponds. Their properties were contaminated with highly toxic substances including, in certain instances, arsenic, lead, polychlorinated biphenyls (PCBs), and polycylic aromatic hydrocarbons (PAHs). The Governments of Nova Scotia and Canada were named as defendants for their role in the operation of the Sydney Tar Ponds and the resulting contamination.
The representative plaintiffs' class action law firms, Wagners and Siskinds LLP, contacted BridgePoint Global Litigation Services Inc. ("BridgePoint") on behalf of their clients to provide them with a $500,000 indemnity to help offset any order made against them to pay the defendants' costs. BridgePoint's indemnity allowed the representative plaintiffs to focus on advancing the action without worry that they could face potential financial ruin for agreeing to represent the class.
Adverse cost insurance comes in varying names, is offered by a handful of companies, and is relatively new to the Ontario legal landscape. It has been referred to as legal costs protection, adverse cost insurance or even after-the-event insurance. Regardless of its moniker it is, in my opinion, the greatest advancement in access to justice in the personal injury field since the judicial acceptance in Ontario of contingency fees. The various products essentially provide insurance coverage to litigants who face paying costs to a successful opponent on motions right through to trial.
BICO was recently invited by the Ontario Trial Lawyers Association (OTLA) Board of Directors to present and discuss its services at their most recent meeting on October 20, 2014 in Toronto. This blog post is taken from the presentation made by Stephen Pauwels, Principal of BridgePoint Financial Services Inc.
BridgePoint Indemnity Company offers legal cost protection that helps people who have been seriously injured to obtain the settlement they deserve, says an animated informational video that appears on YouTube. The nearly two-minute animation depicts a person who has been injured in a car crash and the difficulties that person could experience if he or she seeks compensation from an insurance company.
“When you’ve been seriously injured, the road to recovery can be a long one. With the help of your lawyer, you’re hoping to get the compensation you need to get back on your feet,” says the video. “Unfortunately, the legal process is also a long one because the large insurance company opposing your claim won’t pay without a fight.”
Most personal injury claims eventually settle out of court, the video says, but if an acceptable offer isn’t made, the matter may go to trial.
Irwin Mitchell, a leading U.K. law firm, has recently reported that it has been retained to act in a number of professional negligence actions against lawyers by commercial clients who were not advised about the availability of “after the event” insurance (also known as ATE insurance). ATE Insurance in the United Kingdom is similar to legal cost indemnities offered by our company, BridgePoint Indemnity Company (BICO) in Canada, that protects clients against adverse cost exposure in the event they are unsuccessful prosecuting their claims (plus the option to purchase protection for their counsel’s own costs or disbursements).
Renée Vinett, a partner at Toronto personal injury law firm, Howie, Sacks & Henry, successfully used legal cost protection issued by BridgePoint Indemnity Company (“BICO”) to defeat an application seeking $180,000 as security for costs from her Ontario-resident client who suffered injuries in a horseback riding accident which took place in Alberta.
It is generally accepted that if your client is impecunious, he or she will likely be judgment proof. The recent decision in Leochko v. Rostek, 2013 ONSC 7899 (CanLII) might give some plaintiff’s counsel cause for concern.
In 2005, Ms. Leochko was involved in a motor vehicle accident. She was not able to successfully return to work after the accident and she started receiving income replacement benefits (“IRBs”). In 2007, the insurer stopped the IRBs but they were reinstated in October 2009. The benefits continued to be paid but were reduced as a result of Ms. Leochko receiving Canada Pension Plan benefits. As part of the reinstatement, Ms. Leochko also received arrears of IRBs of $43,967.95. Between 2007 and October 2009, Ms. Leochko fell behind on her bills and had to declare bankruptcy.