Tariq. The effect of S. 12 (1) of the Motor Vehicles Insurance (Third Party Risks) Act Ch. 48:51 The Act is agreed. That term is void as against third

Similar documents
IN THE COURT OF APPEAL BETWEEN. ALAN DICK AND COMPANY LIMITED [Improperly sued as Alan Dick and Company] AND FAST FREIGHT FORWARDERS LIMITED AND

ONTARIO SUPERIOR COURT OF JUSTICE. ) ) ) ) ) Defendants ) ) ) ) Judgment on Motion for Determination of a Question of Law

IN THE COURT OF APPEAL. ARCELORMITTAL POINT LISAS LIMITED (formerly CARIBBEAN ISPAT LIMITED) Appellant AND

"Motor vehicle liability policy" defined. (a) A "motor vehicle liability policy" as said term is used in this Article shall mean an

IN THE HIGH COURT OF JUSTICE BETWEEN AND

JUDGMENT. claimed against the defendant money due and owing under two loan accounts. Under

IN THE SUPREME COURT OF BELIZE, A.D CLAIM NO. 294 of 2011 AND. Hearings nd May 6 th July 10 th August

CASE NO: 554/90 AND A B BRICKWORKS (PTY) LTD VAN COLLER, AJA :

Case Name: Wawanesa Mutual Insurance Co. v. AXA Insurance (Canada)

IN THE SUPREME COURT OF BELIZE, A.D BETWEEN (NEW RIVER PARK LTD. CLAIMANT ( AND ( (THE BELIZE BANK LIMITED

Outflanked High Court of Australia goes behind Bankruptcy Court Judgment

JUDGMENT. Maharaj and another (Appellants) v Motor One Insurance Company Limited (Respondent) (Trinidad and Tobago)

Correlation Table. 1 (1) - Definitions 1 (5) - Definitions 1 (2) - Interpretation Act applies 1 (1) - Interpretation Act applies

RE: Ayr Farmers Mutual Insurance Company v. CGU Group Canada Ltd. RULING

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and Kinser, JJ., and Compton, Senior Justice

Don`t under any circumstances Settle your Personal Injury Claim until you talk to a Solicitor

MEMORANDUM OF AGREEMENT (INTERNAL AGREEMENT)

CITATION: Lucas-Logan v. Certas Direct Insurance Company, 2017 ONSC 828 COURT FILE NO.: CV DATE: ONTARIO SUPERIOR COURT OF JUSTICE

ALLSTATE INSURANCE COMPANY OPINION BY JUSTICE LEROY R. HASSELL, SR. v. Record No April 20, 2001

summary of complaint background to complaint

Lim Kitt Ping Lynnette v People s Insurance Co Ltd and another

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) DECISION AND JOURNAL ENTRY

Protection for solicitors against direct settlement out of costs when acting under a CFA Lite in RTA Protocol cases

CLAIM NO. SKBHCV2011/0196 BETWEEN: DEVELOPMENT BANK OF ST. KITTS-NEVIS. and MERVYN RICHARDSON

(1) Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted;

DECISION ON A MOTION

a) Employers Liability Insurance Policy Wording

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. Case No. 5D

Yugraneft v. Rexx Management: Limitation periods under the New York Convention A Case Comment by Paul M. Lalonde & Mark Hines*

THOMAS M. STONE OPINION BY JUSTICE A. CHRISTIAN COMPTON v. Record No December 16, 1996

ONTARIO SUPERIOR COURT OF JUSTICE. ) ) Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) REASONS FOR JUDGMENT

SUPREME COURT OF QUEENSLAND

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

CHAPTER 214 THE MOTOR VEHICLE INSURANCE (THIRD PARTY RISKS) ACT. Arrangement of Sections.

THE SUPREME COURT OF APPEAL REPUBLIC OF SOUTH AFRICA JUDGMENT IMPERIAL GROUP (PTY) LIMITED NCS RESINS (PTY) LIMITED

M. M. (No. 3) v. WIPO

Massachusetts General Laws

IN THE HIGH COURT OF JUSTICE BETWEEN TOTAL IMAGE INCORPORATED LIMITED AND VENTURE CREDIT UNION CO-OPERATIVE SOCIETY LIMITED STEPHEN FULLERTON

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Applicant

V o l u m e I I C h a p t e r 5. Sections 10 and 11: Limitation of Actions, Elections, Subrogations and Certification to Court

IN THE COURT OF APPEAL BARBADOS MUTUAL LIFE ASSURANCE SOCIETY. and [1] MICHAEL PIGOTT [2] WEST MALL LIMITED

Jevco Insurance Company v. Wawanesa Insurance Company. Jevco Insurance Company v. Pilot Insurance Company

[Carrier name] FIDUCIARY LIABILITY COVERAGE ENHANCEMENTS ENDORSEMENT (EP PORTFOLIO)

AND IN THE MATTER OF THE ARBITRATION ACT, S.O. 1991, c. 17; AND IN THE MATTER OF AN ARBITRATION STATE FARM MUTUAL INSURANCE COMPANY.

Conditional Fee Agreement Explanation Leaflet. What you need to know about the CFA

IN THE COURT OF APPEAL IN THE MATTER OF THE SECURITIES INDUSTRY ACT 1995 AND IN THE MATTER OF THE SECURITIES INDUSTRY (TAKE OVER) BY-LAWS 2005 AND

IN THE COURT OF APPEAL OF BELIZE AD 2014 CIVIL APPEAL NO 8 OF 2012 BLUE SKY BELIZE LIMITED BELIZE AQUACULTURE LIMITED

IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8, and REGULATION 664/90. AND IN THE MATTER OF THE ARBITRATION ACT, S.O. 1991, c.

IN THE HIGH COURT OF JUSTICE BETWEEN AND LARRON JAIPERSAD

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) DECISION AND JOURNAL ENTRY

Indexed as: Rano v. Commercial Union Assurance Co. Between: Teresa Rano, applicant, and Commercial Union Assurance Company, insurer

NSW Workers Compensation Act 1987 Employer s Insurance Policy

Before : MASTER GORDON-SAKER Senior Costs Judge Between :

Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION

STATE OF MICHIGAN COURT OF APPEALS

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL. and INTECO BETEILIGUNGS AG

- and - TRATHENS TRAVEL SERVICES LIMITED

B. The Principal Cardholder has requested that such payment cards be issued to it for the purchase of motor vehicle items; and

CITATION: Unifund Assurance Company v. ACE INA Insurance Company, 2017 ONSC 3677 COURT FILE NO.: CV DATE: ONTARIO

I TE KŌTI PĪRA O AOTEAROA CA35/2018 [2018] NZCA 240. OMV NEW ZEALAND LIMITED Appellant

ERISA. Representative Experience

WAWANESA MUTUAL INSURANCE COMPANY. - and - PRELIMINARY DECISION DISPUTED PRODUCTIONS

CITATION: Tree-Techol Tree Technology v. Via Rail Canada Inc., 2017 ONSC 755 COURT FILE NO.: DATE:

TITLE LOAN AGREEMENT

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8, SECTION 268 and REGULATION 283/95

IN THE COURT OF APPEAL PORT OF SPAIN BETWEEN TRANSPORT AND INDUSTRIAL WORKERS UNION NATIONAL MAINTENANCE TRAINING AND SECURITY COMPANY LIMITED

Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION

IN THE EMPLOYMENT COURT WELLINGTON [2013] NZEmpC 175 WRC 27/12. Judge Couch Judge Inglis Judge Perkins JUDGMENT OF FULL COURT

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION. CIVIL APPEAL NO(S).9310/2017 (Arising from Special Leave Petition(s)No.

KEM-LIN FASHIONS CC Appellant

The Code of Ethics for Arbitrators in Commercial Disputes Effective March 1, 2004

Austrian Arbitration Law

DECISION ON A MOTION

Rent in advance not a deposit: Court of Appeal latest

GILL, GODLONTON & GERRANS

IN THE HIGH COURT OF SOUTH AFRICA FREE STATE DIVISION, BLOEMFONTEIN HAW & INGLIS CIVIL ENGINEERING (PTY) LTD

Interplay between Occupational and Non-Occupational Disability cases. Rob Boswell

Mr S complains about Bar Mutual Indemnity Fund Limited s decision to withdraw funding for his claim.

FEDERAL COURT OF AUSTRALIA

ARBITRATION ACT. May 29, 2016>

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL CIVIL DIVISION DOMESTIC BUILDING LIST VCAT Reference: D202/2004. Noreen Cosgriff.

Index No /1986 LIQUIDATION PLAN FOR MIDLAND INSURANCE COMPANY

JUDGMENT. From the Court of Appeal of the Republic of Trinidad and Tobago. before. Lady Hale Lord Clarke Lord Wilson Lord Hodge Sir Paul Girvan

In the application between: Case no: A 166/2012

IN THE COURT OF APPEAL BETWEEN BISSONDAYE SAMAROO AND

STATE OF MICHIGAN COURT OF APPEALS

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : COMPENSATION MATTER Reserved on: 21st February, 2012 Pronounced on: 2nd July, 2012 MAC.APP.

UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2015 ARTHUR LAMAR RODGERS STATE OF MARYLAND

ECHELON GENERAL INSURANCE COMPANY. - and - DECISION ON A PRELIMINARY ISSUE

Award of Dispute Resolution Professional. Claimant or claimant's counsel appeared by telephone. Respondent or respondent's counsel appeared in person.

NIGERIA. Dorothy Ufot. Dorothy Ufot & Co

IN THE COURT OF APPEAL KENNETH HARRIS. and SARAH GERALD

Introduction Page to the Respondent s PDF Factum:

Pella Certified Contractor Agreement. This Agreement is made this day of, 20, by and between. _ ( Pella Sales Entity ) and. ( Remodeler ).

- and - [HIGHGATE REHABILITATION LIMITED] (By Guarantee) Respondent AWARD. 1. This Arbitration concerns [Highgate Rehabilitation] ( [Highgate

Ontario Ltd. (c.o.b. Castle Auto Collision & Mechanical Service) v. Certas Insurance, [2016] O.J. No. 264

THE COMMISSIONERS FOR HER MAJESTY S REVENUE AND CUSTOMS. - and

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA TAXATION REFERENCE NO. 4 OF 2010

Transcription:

REPUBLIC OF TRINIDAD AND TOBAGO HCA No. CV 2011-00701 IN THE HIGH COURT OF JUSTICE BETWEEN GULF INSURANCE LIMITED AND Claimant NASEEM ALI AND TARIQ ALI Defendants Before The Hon. Madam Justice C. Gobin Appearances: Mr. R. V. Persad for the Claimant Ms. S. Bidaisee for the Defendant JUDGMENT 1. On 14 th October, 2009, twenty-one (21) year old Tariq Ali was driving motor vehicle registration PBM 4635 owned by Naseem Ali, along the Audrey Jeffers Highway when in his words the vehicle collided with PBZ 280 which then went forward and collided with HBT 4185. The use of the vehicle was insured with Gulf Insurance Ltd. (Gulf). The policy purported to restrict the insurance of drivers under the age of twenty-five (25) such as Page 1 of 7

Tariq. The effect of S. 12 (1) of the Motor Vehicles Insurance (Third Party Risks) Act Ch. 48:51 The Act is agreed. That term is void as against third parties. 2. Following the accident, Tariq provided Gulf with an accident report. It contained no more than what is set out above. There was no litigation. Although Tariq s driving was not covered by the policy, Gulf proceeded pursuant to its statutory obligation under S. 12(1) of the Act, and after negotiations, to settle the claims of the third parties, the owners of PBZ 280 and HBT 4185. The total sum paid out was ninety-three thousand, two hundred and eighty-three dollars and sixty-eight cents ($93,283.68). It subsequently sought to recover this sum from the defendants through written requests without success. Gulf then brought these proceedings for repayment. 3. The Defendants have refused to pay on the ground that Gulf is not entitled to reimbursement either under the terms of the policy or under S. 12(2) of the Act. At first the thrust of the defence appeared to be that Gulf would only be legally liable to pay third party claims if there was a judgment of a Court establishing the owner s liability and since there was no judicial determination of liability of any of the parties herein, if the insurer chose to settle and make voluntary payments outside the policy, those payments fell outside of the scope of S.12(2) and were not recoverable. 4. I have considered the full and helpful submissions of Counsel on both sides and find that the Claimant is entitled to judgment in the sum claimed for the following reasons: Page 2 of 7

(a) First, the Defendants submission that an insurer becomes legally liable to pay third party claims only when and not until there is a judgment of the court which S. 10(1) of the Act requires to be satisfied, must be rejected for to do otherwise would result in an absurdity. As it stands, running down actions including third party claims for property and personal injuries constitute a high proportion of cases in our dockets. If all of them proceeded to a trial the administration of civil justice would collapse. The system relies on settlement before they reach trial and on the established practice of settlement of the majority of them even before proceedings are filed. Any judicial construction of the terms under which the insurer s legal liability arises, whether in context of the standard form insurance policy or of legislation as in S. 12(1) of the Act must have regard to this reality. Such construction ought to avoid the chaos and absurdity that would result if the insurer s legal liability arose only when a court declared it in a judgment. (b) I therefore accept the Claimant s submission that a judicial determination of a third party claim is not essential and that liability can be established in certain circumstances in the absence of such. Counsel for the claimant relied on the statement of Salmon L. J. in Post Office v Norwich Union Fire Insurance Society Ltd. [1967] QBD 363 at 378, to the effect that liability to pay can be ascertained not only by action but also by arbitration or agreement. In this case by its agreement to pay the sums claimed Gulf settled the issues of the First Defendant s liability, quantified it and established its own legal liability to pay under the policy as well as under S. 12(1). (c) In response to this particular submission, counsel for the Defendant accepted that Salmon L. J s statement represented the true legal position and while he was then forced to concede that an action and therefore a judicial determination was not a precondition as had been previously argued, he submitted that the agreement contemplated in the statement of Salmon L. J. above, was the express agreement of the insured as opposed to that of the insurer to pay. Counsel for the Defendant submitted, the insurer had no authority to settle a claim such as this one where the loss was not expressly covered by the policy. The argument continued, that any decision to pay otherwise must be regarded as an economic decision of the insurer and payments made as a result of such are not recoverable from the insured. Any financial loss was its own to bear. Page 3 of 7

(d) I reject this argument. I find that what is contemplated in the statement of Salmon LJ is the agreement of the insurer and not the insured. Indeed the Defendant s argument is untenable in the light of clause (5) of the policy which provides as follows:- no admission offer promise or payment shall be made by or on behalf of the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the insured s name the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity to damages or otherwise and shall have full discretion in the conduct of any proceedings and in the settlement of any claim and the insured shall give all such information and assistance as the Company may require. This clause as the Claimant submits gives the insurer an unfettered discretion to settle as has been done here. (e) The Claimant s submission in this regard is supported by the decision in the case of Beacon Insurance Co. Ltd. v Langdale [1939] 4 All E.R. 204, in which the breadth of the discretion conferred by a clause in identical terms was considered. It was held in the Court of Appeal that the clause gave the insurer the power to settle the claim without consulting the insured. The opinion of Sir Wilfred Greene MR in Groom v Crocker was cited: The effects of the provision in question is I think to give the insurers the right to decide upon the proper tactics to pursue in the conduct of the action provided that they do so in what they bona-fide, consider to be the common interest of themselves and their assured. In the light of this authority and the clear terms of clause (5) of the policy, I consider the power to settle, so long as it is exercised with the requisite bona-fides, is unfettered. (f) This brings me to another issue raised by the defendants. Counsel has sought on their behalf to vigorously argue that if the insurer has an unfettered discretion to settle claims and then recover any sums paid out from an insured, then the insured (the economically weaker of the two parties in the relationship) may be placed at risk of serious financial loss by having to reimburse what might amount to unwarranted payments. I am not persuaded that there is any proper or reasonable cause for such a concern. It cannot be Page 4 of 7

to the advantage of an insurer to pay out monies in the hope of recovering from the insured, so long as there is a good possibility that litigation might ensue as in this case, and where the insurer would be bound to incur further legal costs and run the risk of having to pay costs if it were unsuccessful. This seems to make little business sense. (g) In any case the law imposes a duty of bona-fides on the insurer, the breach of which can in appropriate cases be relied upon by an insured. In situations where for example there are credible allegations of collusion between the insurer and third parties or their insurers, reckless settlements of obviously over inflated claims, settlements in favour of third parties where the insured could not on any reasonable assessment or consideration of the circumstances of an accident be considered to be at fault, a lack of bona-fides might properly avoid the insured s obligation to repay. But the insured must raise the issue frontally on the pleadings. (h) This was not done here. The issue of lack of bona-fides had not been raised on the pleadings. Counsel for the Defendant in the course of submissions attempted to introduced it. When he was asked to identify the paragraphs of the defence which gave rise to it, he identified several paragraphs which included statements to the effect that settlement payments were made without any admission of liability by the driver, without any authority or legal obligation. I am unable to agree that these general statements could give rise to a plea of a lack of bona-fides. A plea of a lack of bona-fides requires, both by its nature and under the Civil Proceeding Rules (CPR) a greater degree of particularity. Since too, it would have been raised with the intention of avoiding a statutory obligation on the part of the insured to repay sums to the insurer, I would have thought that the allegations would have had to be more compelling as in the examples I have given above. (i) Far from finding a lack of bona-fides, I find that the bare statement of Tariq in which he described the collision, left Gulf with little choice but to settle. Reference was made in correspondence between the claimant and the third parties (of which the Defendants were aware), to Tariq s admission of liability at the St. James Police Station immediately following the accident. He may have done so in breach of the policy. But that is immaterial for the purpose of determining whether there would have been a bona fide defence available to the defendants in the running down action if it had to come to that. The allegation that Page 5 of 7

Tariq made the admission to the police has not been disputed in these proceedings. Indeed the Defendants here have truly not put forward any facts for consideration which suggest that the third party claims were improperly settled. In any case I consider it significant that the claims were settled specifically without any admission of liability on the part of the Defendants. (j) On a completely different note, I find too that the obligation to repay monies which the Claimant paid under the two settlements is specifically provided for by Section X (Avoidance of certain terms and Rights of Recovery) of the policy which says: Notwithstanding in this Policy or any endorsement hereon shall affect the right of any person entitled to indemnity under this Policy or of any other person to recover an amount under or by virtue of the Legislation. But the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the Legislation. (emphasis mine) This express term covers the situation here. Gulf s liability to pay arose only by operation of the Act, as a consequence this clause was triggered. (l) In the course of his submissions, Counsel for the Defendants contended that S. 12(1) of the Act must be read together with and subject to S. 10(1). I reject this submission. Section 10(1) simply imposes the statutory obligation to satisfy judgments in respect of third party claims even where the insurer is not made a party to the proceedings, unless liability is excepted as provided. No issue of recoverability arises under S. 10(i). Under the usual terms of a contract of indemnity it would not. The Section also deals with liability covered specifically by the terms of the policy. On the other hand S. 12(1) deals with liability which is avoided under the terms of the contract but which terms are rendered ineffective, only by virtue of the provision. The liability to pay is imposed by operation of law. It is only in this extraordinary situation provided for by S. 12(1) that the insured is required, in a complete reversal of roles and obligations to indemnify the insurer. There is nothing which suggests that sections are to be read, one subject to the other, and indeed the subject matter as I have pointed out suggests that they are distinct and irreconcilable. Page 6 of 7

(m) Finally, I make this observation, that I believe puts paid to the Defendant s submissions. If the Defendants arguments were to be accepted and since the contention is that it is because S.12 (2) imposes this liability to repay, then the insured must be a party to the agreement to pay, then the result would be that a person who breaches the policy would be in a better position to influence the outcome of a claim than one who abides by its terms. In other words one who knowingly permits a breach of the policy as did Naseem, by permitting an under-aged driver to use the vehicle, and who as a result causes the insurer to incur statutory liability to third parties, would be better placed than an insured who causes third party loss in circumstances expressly provided for under the policy. This too, would lead to an absurdity and would actually reward the mischief that the Act aims to address. Disposition 5. There shall be judgment for the Claimant in the sum of $93,283.68 with interest thereon at the rate of 5% per annum from the 22 nd February 2011 to the 24 th April 2012. The defendants to pay the claimant s prescribed costs of the action. Dated this 12 th day of April, 2012 CAROL GOBIN JUDGE Page 7 of 7