Aviva ordered to pay $237k in legal costs to injured Plaintiff

Car accident victims face an uphill battle when trying to obtain compensation from the at-fault party for pain and suffering. The legislation in this area of law is complicated and forces Plaintiffs to not only show that they are seriously and permanently impaired, but the law also deducts close to $40,000 from most Plaintiffs’ pain and suffering awards.
Given the state of the law, certain insurance companies in Ontario have made it their mandate to draw out litigation and force Plaintiffs into long, costly (and very risky) trials. As a result, many Plaintiffs with otherwise viable claims end up abandoning their lawsuits without compensation for their injuries.
Luckily, the courts are starting to realize which insurance companies are unreasonably and unjustly delaying litigation or refusing to pay.

In Ontario, the loser generally pays the winner’s legal fees. The amount of legal costs to be awarded to the successful party is at the trial judge’s discretion and based on numerous factors, including the conduct of the parties throughout the litigation, and prior offers to settle.
Recently, the Honourable Justice Mary Sanderson of the Ontario Superior Court, ordered Aviva Insurance Company to pay an elderly Plaintiff $237,000 in legal costs, in addition to the jury award. In her decision, Justice Sanderson, found that while the jury’s award was only $20,414.83 net, Aviva needed to pay out hefty legal fees as a result of their conduct throughout the litigation.

The Plaintiff was 84-year-old, Maria Persampieri. She was the victim of a rear end accident in or around February of 2009. Aviva insured the at-fault vehicle and immediately denied the Plaintiff any payment for her injuries. Litigation was commenced.
Through the course of the litigation, Aviva, through their lawyers, refused to pay the Plaintiff anything for her damages. Aviva, through their lawyers, said the only acceptable outcome was for the Plaintiff to accept $0 and in return, Aviva would not pursue legal costs against her. The Plaintiff refused.

In March 2017, just a few months before trial, the Plaintiff offered to settle her claim for $20,000, plus legal fees. Two weeks before trial, the Plaintiff reduced her offer to settle to $10,000. Aviva refused and proceeded to trial. After a long trial in May and June 2017, the jury came back and awarded the Plaintiff $67,500 for her claims. After the statutory deductible was applied to the award, the Plaintiff was left with a net award of $20,414.83.
Plaintiff’s counsel sought $268,000 for their legal costs. Aviva’s lawyers argued that the costs sought by the Plaintiff were not proportionate to the verdict and should be reduced.

Justice Sanderson rejected Aviva’s argument and said:
“For this court to let proportionality be the overriding, or even the predominant factor, would be grossly unfair to (Persampieri) and would be to reward the uncompromising, and – in the light of the jury verdict – unreasonable behaviour of the insurer…”
Justice Sanderson agreed that insurers can pursue whatever legal strategy they deem fit, but added that, “especially where such strategies may have wide ranging and adverse implications involving widespread denial of access to justice, the use of such strategies should not be encouraged by the giving of cost breaks on foreseeable costs consequences.”

You can access Justice Sanderson’s full decision here.
Grillo Law – Personal Injury Lawyers for Car Accidents.
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