Pearlman v. American Commerce Insurance Company

Pearlman v. American Commerce Insurance Company

The judge erred in refusing to dismiss the action on summary trial: the uncontested evidence showed the insurer paid all amounts owed, appropriately sought legal advice about the PAU, properly required insured cooperation (recorded statement, IME, prior records), and an independent medical examination undermined the...

Source-derived case information.

Citation
2009 BCCA 78
Parties
Respondent (plaintiff): David Pearlman; Appellant (defendant): American Commerce Insurance Company; Appellant (defendant): Betsy Morrisette
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
24 February 2009
Procedural Posture
Civil Appeal (insurance Coverage / Bad Faith) / Appeal From Summary Trial Under Rule 18 a
Outcome
Appeal allowed; summary trial judge's order varied to dismiss the plaintiff's action
Legal Topics
Personal Injury Protection (pip), Bad Faith, Policy Limits, Power of Attorney and Undertaking (pau), Summary Trial Under Rule 18 a, Independent Medical Examination (ime)
Source Language
english
Insurance Law Tort Civil Procedure Contract Personal Injury Protection (pip) Bad Faith Policy Limits Power of Attorney and Undertaking (pau) +2 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

David Pearlman

Respondent (plaintiff)

American Commerce Insurance Company

Appellant (defendant)

Betsy Morrisette

Appellant (defendant)

Procedural Posture

Civil Appeal (insurance Coverage / Bad Faith) / Appeal From Summary Trial Under Rule 18 a

Legal Issues

  1. 1 Whether insurer's conduct (requesting legal advice, seeking IME, suspending benefits pending cooperation) constituted bad faith or negligence
  2. 2 Whether the insurer concealed the Power of Attorney and Undertaking or was obliged to pay CDN $150,000
  3. 3 Whether the summary trial judge properly declined to dismiss the plaintiff's action under Rule 18A

Ratio Decidendi

The judge erred in refusing to dismiss the action on summary trial: the uncontested evidence showed the insurer paid all amounts owed, appropriately sought legal advice about the PAU, properly required insured cooperation (recorded statement, IME, prior records), and an independent medical examination undermined the plaintiff's claims; there was no evidentiary basis for bad faith, negligence, deceit or concealment, so the appeal is allowed and the action dismissed.

Court Disposition

Appeal allowed; summary trial judge's order varied to dismiss the plaintiff's action

Orders

  • The defendant's application of 4 July 2008 to dismiss the plaintiff's action is granted and the action is dismissed.
  • The defendant is entitled to the costs of this appeal.