Posted: February 09, 2018
By: Anita Wong

We all love a good David vs. Goliath story. You know, the one from Samuel in the Bible, where a little shepherd boy David has nothing but a sling shot and rock in his battle against the nine-foot soldier Goliath, but still manages to hit him in the head and win the battle?  Score one for the underdog, the little guy…

It is not very often we have the David vs. Goliath scenario played out in the courtroom. When it does happen, it is worth much more than a passing comment. 

The Persampieri v. Hobbs is just that case.

The Plaintiff, Maria Persampieri, was 84 years old when she was injured as a passenger in a car that was rear ended by George Hobbs. Mr. Hobbs was the driver of the Defendant vehicle, and Dover Industries Ltd. was the owner of the vehicle. The Defendants were insured by Aviva Canada.  

Maria’s claim was not a big one. The insurance company had every legal right to defend it. Practicalities being what they are, the insurer should have paid the modest claim and moved on. But that didn’t happen. The insurer was not prepared to pay. 

After the pre-trial, the Plaintiff offered to settle her case for $20,000.00 plus costs and disbursements. The Defendants refused to accept that offer.

So, the Plaintiff made another offer two weeks before trial. It was an even lower offer… of $10,000.00 for all general and special damages combined, net of the applicable statutory deductible plus partial indemnity costs.

The Defendants still refused to settle. The Plaintiff’s choice was to fold or go to trial. Arguably, the Plaintiff had no choice but to go to trial.

A jury heard the case last spring, listened to the Plaintiff’s story, along with the vigorous defence mounted by Aviva’s counsel. At trial, the Plaintiff’s counsel successfully fought off the first attack:  a summary judgment motion on a limitations issue. They also succeeded against the final attack by the Defendants - their “threshold” motion, whereby the Defendant argues that the Plaintiff has no legal right to claim for pain and suffering was denied, in favour of the Plaintiff.

The jury came back with an award of $40,000 for general damages, $25,000 for housekeeping and home maintenance, $2,000 for attendant care, and $500 for medical and rehabilitation expenses.

What the jury wasn’t told; was that first of all, the Defendants Mr. Hobbs and Dover Industries are protected by auto insurance and it is in fact, their insurance company that is the driving force behind their vigorous defence, not Mr. Hobbs himself, who has little say, if any, in these legal matters. 

The jury is also not told that there is a rather large deductible that applies to this senior citizen’s case and that she will not receive a huge chunk of what they have in fact thought they awarded to her.  So after the large deductible is taken off, the Plaintiff’s net award for general damages is now a paltry $2,614.83.  

The award for housekeeping and home maintenance is also subject to deductions and after those amounts are calculated, she will receive $15,800, net for this category.  For the other categories she receives:  $0 for caregiving, $2,000 for attendant care, and $0 for out of pockets and $0 for medical and rehabilitation, net.

The happy ending to this story comes in the form of the costs award, with the court’s decision having been released on January 22, 2018. 

The net jury award at trial was more favorable to the Plaintiff than her last offer to settle.  In other words, the Plaintiff beat her offer.  The Defendants should have taken the offer instead of forcing the trial and now would have to pay a significant portion of the Plaintiff’s legal fees.

The court found that the Defendants “knew that they could avoid the obvious risk of paying substantial indemnity costs of a lengthy and expensive trial by accepting the Plaintiff’s offer of $10,000.00 plus costs.” 

The insurer made a decision early on not to pay any tort damages and once that was done, the decision was unchangeable.   The judge found that such an unalterable decision making process would render meaningless and make a mockery of the pretrial resolution process, which aims to encourage settlement to avoid unnecessary trials. “Total unwillingness to reassess/discuss settlement based on full information and advice should not be sanctioned or encouraged in any way,” including sheltering insurers from costs consequences of their decision. 

In the end, the court ordered the Defendants to pay costs of $237,017.50 to the Plaintiff. 

A victory for David, over Goliath. 

If you have been injured in a motor vehicle accident and are interested in seeing if you have a case for compensation, call 1-844-RASTIN1 for a free consultation.



 
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Posted under Accident Benefits, Car Accidents, Disablity Claims, Injury Case Preparation, Insurance Claims, Personal Injury