IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Tingley v. Wellington Insurance, 2009 NSSC 248
1995 Date: 2009/07/13
Docket: S.H. No. 115328
Registry: Halifax
Between:
Patricia Tingley, Margaret Burton, Kelli Smith and Todd Smith
Plaintiffs
v.
Wellington Insurance and Larry Hay
Defendants
LIBRARY HEADING
Judge: The Honourable Justice David MacAdam
Heard: July 13, 2009, in Halifax, Nova Scotia
Oral Decision: July 13, 2009
Written Decision: August 18, 2009
Subject: Practice and Procedure – Non-Suit – CPR 51.06
Summary: In a proceeding involving claims by the plaintiffs against their insurance company and an adjuster on account of the handling of an alleged incident of chemical contamination in the plaintiffs’ home, the defendants brought a non-suit motion at the close of the plaintiffs’ case, pursuant to Rule 51.06. The allegations in the statement of claim included breach of contract, negligent misrepresentation, negligence, breach of fiduciary duty, bad faith and equitable fraud.
Issue: Whether the plaintiffs claims, or any of them, should be non-suited?
Result: The court held that the non-suit rule under the current Civil Procedure Rules applied, rather than the predecessor rule. An application by the defendants to amend the notice to include additional causes of action was denied.
With respect to the claim in negligence, there was no evidence as to the standard of care expected of an insurance adjuster or an insurer in investigating, adjusting and assessing the plaintiffs’ claim in 1991. The court rejected the defendants’ submission that expert evidence was always a necessary prerequisite to finding negligence. There could be matters that could be found negligent by use of a jury’s common sense. The court also rejected the submission that causation was excluded by the plaintiffs’ evidence. However, ultimately there was no evidence at all of the standard of care of an insurance adjuster, including evidence of custom or practice, from which it could be determined whether there was negligence or breach of an implied term of the contract of insurance. The claim for breach of fiduciary duty was also dismissed by way of non-suit.
While bad faith was argued, plaintiffs’ counsel acknowledged there was, in fact, no cause of action in bad faith. As such there was no cause of action in bad faith to be non-suited. Bad faith was preserved as a potential factor in assessing damages. The claims for negligent misrepresentation and equitable fraud were preserved.
The non-suit motion was allowed in part, with claims for negligent misrepresentation and equitable fraud preserved.
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