Claimant Dies After Settling Claim – Insurance Company Tries to Back Out of Deal
The Supreme Court of Nova Scotia recently released the decision of the Estate of Theresa Anne Jollimore v. The Personal Insurance Company of Canada. The decision of Justice Coady involves a case where a minor (Jollimore) suffered a serious brain injury when the car in which she was a passenger was involved in a car accident.
Father Acts as Litigation Guardian
Because she was a minor, Ms. Jollimore’s father was appointed by the court as her litigation guardian to act on her behalf to bring forward her compensation claim.
The defendant’s insurance company, The Personal Insurance Company of Canada appointed counsel and the parties engaged in mediation where they settled Ms. Jollimore’s claim for $235,000.00
Claimant Dies Before Payment
However, after the parties negotiated the settlement and signed a settlement agreement, Ms. Jollimore passed away from a drug overdose.
Insurance Company Tries to Back Out of Settlement
The insurance company took the position that because Ms. Jollimore died before they issued a cheque, the settlement was not binding. The insurance company also argued that since Ms. Jollimore had reached the age of majority (19 years) she was no longer a minor and therefore her father no longer had the authority to act as her litigation guardian to negotiate the settlement.
Insurer Knew Claimant Was Brain Injured
Justice Coady reviewed the evidence which clearly indicated that all of the parties were aware that Ms. Jollimore was not a minor at the time the settlement was negotiated. The parties were also clearly aware that Ms. Jollimore’s serious brain injuries rendered her incompetent and that she was not capable of managing her own affairs.
Insurer “Taking Advantage” of Claimant’s Death
Justice Coady stated, at paragraph 26 of his decision:
“I have a great deal of difficultly with the respondent’s (insurance company) position. It is clear that the settlement was arrived at in good faith after the respondent was provided with all relevant information. The respondent was fully apprised of the risks associated with Ms. Jollimore’s lifestyle and health. The settlement figure reflected these factors. The respondent’s unwillingness to honor the agreement is predicated on taking advantage of Ms. Jollimore’s unfortunate demise.”
Protecting the Rights of People Who Cannot Protect Themselves
Justice Coady went on to point out the importance of trying to protect the interest of persons who have been injured and are no longer able to look after their own affairs. Justice Coady stated:
“It should not be forgotten that at the time of the settlement Ms. Jollimore was incompetent … I conclude that the settlement is binding on the parties.”
Moral Obligation May Not be a Legal Obligation
This decision reinforces the importance of insuring that, at every step of the litigation process all of the proper requirements under the court rules and appropriate provincial laws have been complied with. While most people understand that “a deal is a deal” this type of moral obligation means nothing to an insurance company like The Personal which tried to take advantage of a technicality under Nova Scotia rules of court in order to renege on their obligations to a grieving family.
If you or a family member have suffered an injury which you think may have resulted in a brain injury and you are looking for a Nova Scotia brain injury lawyer you can contact me through this blog or by calling toll free 1 (877) 891-1664 for a free copy of my book: The Survivor’s Guide to Traumatic Brain Injury Claims.