Are judges getting tired of Aviva Insurance intimidation and hardball tactics?
In Persampieri v. Hobbs et al., an 84-year-old plaintiff sued the defendant for a rear-end collision. Aviva Insurance defended the claim and put it through its “defensible program”. They maintained their offer to settle at $0 throughout the litigation. The jury awarded nearly $70,000 in damages, but because of the deductible, the net award to the plaintiff was just over $20,000.
Justice Sanderson awarded the plaintiff over $200,000 in costs. The insurer demonstrated a total unwillingness to discuss a settlement and put the claim through its defensible program. Justice Sanderson said that if a reduction of costs were to be awarded in proportion with the net result to the plaintiff, it would serve to incentivize insurers to pursue strategies to resist settlement on modest claims.
In Przyk v. Hamilton Retirement Group Ltd., an elderly resident of a retirement home, Ms. Anna Przyk, slipped and fell on a sidewalk between one exit of the home and the main entrance. The plaintiff issued a claim against the retirement home. Aviva Insurance was the insurer for the retirement home and defended the claim.
The counsel of the plaintiff repeatedly tried to settle a claim, initially with the adjuster appointed by Aviva Insurance and later with the lawyer from Aviva Insurance. The insurer kept refusing to settle the claim and offered $0 compensation to an elderly client. The trial proceeded on liability only, and the plaintiff lost her case. However, the judge refused to award costs against the plaintiff.
It was brought to the attention of the court by the plaintiff’s counsel that Aviva advertises that their goal is “ to drive a consistent message with judges, mediators, and counsel”, to highlight for the Court that the insurer wasn’t just aggressively defending Ms. Przyk’s claim, but boasting of a broader intimidation strategy”.
The Court, in this instance, concurred. Justice Whitten made a note of the “arrogance” in Aviva’s approach. He took the issue seriously before him, describing the case as a “David and Goliath” situation and spoke to the social responsibility of a large market insurer and the broader access to justice issues, noting:
From reading the employment advertising for Aviva concerning the sending a message to judges, mediators, and counsel, one detects a certain arrogance. Size of the insurance market is not inconsequential. Insurers are answerable to their shareholders. Playing hardball with the modest litigant may indeed be profitable, but that does not mean that the modest litigant should have a field day or that the insurer be vulnerable to frivolous claims. Being a large market shareholder is not without social responsibility, size should not be wielded to oppress deserving litigants as that would encroach upon the broader social interest of access to justice. Aviva with its approach, is at risk of allegations of playing hardball. In some circumstances, that approach may result in no costs. In a way, that is a cost of doing business in such a fashion.
1 Persampieri v. Hobbs, 2018 ONSC 368 (CanLII)
2 Przyk v. Hamilton Retirement Group Ltd., 2019 ONSC 7498 (CanLII)
