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Issue 204


August 2015

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Who We Are Expertise Contact

In Brief


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For years Foster & Company has published its newsletter, In Brief, to assist insurance industry professionals in their efforts to keep informed of the latest developments in the law.

Hi <<First Name>>,

In this edition of In Brief, we discuss three important decisions released by the Courts of Appeal in New Brunswick and Nova Scotia.

In our first case, New Brunswick’s top court recently upheld a ruling requiring insurers to make unprecedented, sweeping disclosure in a bad faith claim.

In our second case, the NB Court of Appeal ended the practice by Plaintiff’s counsel of withholding responses to proper undertakings pending ‘cooperation’ from the Defendant.

In our third case, the Nova Scotia Court of Appeal gives guidance to insurers on how to protect certain documents from losing ‘litigation privilege’ while an insurer investigates the possibility of a subrogated claim.

Meanwhile, Foster & Company congratulates our newest Reader of the Month, Fred Butler from Angus Miller in Saint John. If you want the chance to win some Foster & Company swag, simply click on any of the links to this month’s articles. You will automatically be entered to win.


Foster & Company continues to be distinguished by A.M. Best Company as Recommended Insurance Attorneys.

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Bad Faith Claim Leads to Ballooning Disclosure Costs for Insurer

The Wawanesa Mutual Insurance Company v. Wade, 2015 NBCA 43
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Read time: 3 minutes (approx.)

By Marie-Hélène Haché

Shirley Wade suffered injuries as a result of a motor vehicle accident in 2005. In 2008, her insurer, Wawanesa, stopped paying her benefits for loss of income. Wade filed a claim for breach of contract and bad faith as against Wawanesa.

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‘Quid Pro Quo’ no more! Plaintiff Cannot Negotiate the Granting of Relevant Undertakings

Johnson v State Farm Fire and Casualty Co., 2015 NBCA 4
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Read time: 3 minutes (approx.)

By Marie-Hélène Haché

Karen Johnson’s house burned down and she filed a claim with her insurer, State Farm Fire and Casualty Co. This claim was denied as State Farm alleged that Johnson’s home had been vacant for more than 30 days before the fire.

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When Investigating Subrogated Claims, Take Care or Lose Privilege Over Key Docs

Hatch Ltd. v. Factory Mutual Insurance Company, 2015 NSCA 60
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Read time: 3 minutes (approx.)

By Marie-Hélène Haché

Three years after it was built, a multi-million dollar wharf collapsed. The owner of the wharf, Martin Mariettea Materials Canada Limited, made a claim on its insurance policy with Factory Mutual Insurance Company (Factory). The claim was granted, in part on the basis of an engineer’s report that was commissioned by the claims adjuster working for Factory.

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The information contained within In Brief is not intended as legal advice, but rather is general information on the law. If you wish to discuss legal matters or obtain the full text of cases, please contact Foster & Company. Our full disclaimer can be found here.

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