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ACTIONS - By insured against insurer

Thursday, March 07, 2019 @ 8:33 AM  

Lexis Advance® Quicklaw®
Appeal by the insurer from a decision that Nevada law applied to the claim. The respondent was injured in 2005 in a motor vehicle accident in Law Vegas, Nevada. All claims arising from the accident had been settled except her entitlement against the appellant to benefits under the OPCF 44R Endorsement in her Ontario motor vehicle insurance policy. During a pre-trial conference, the parties signed a Rule 50.08(3) certificate that confirmed the contents of the pre-trial conference report that recorded the choice of law issue was resolved and that Ontario law applied. After the pre-trial conference, the respondent’s counsel learned of the decision in Chomos v. Economical Mutual Insurance, which suggested Nevada law should apply. The motion judge found the parties had not reached a binding litigation agreement.

HELD: Appeal dismissed. The motion judge’s decision that what occurred at the pre-trial conference was not a litigation agreement but rather an admission by the respondent’s counsel based on a misunderstanding of the law attracted deference as was his conclusion the respondent should be permitted to withdraw the choice of law admission. There was no reason to interfere. The respondent’s agreement that Ontario law applied was consistent with a concession or admission but not a bargain. There was no consensus ad idem between the parties to enter a binding agreement to apply Ontario law.

Kampers v. Acevedo (appeal by York Fire & Casualty Insurance Co.), [2019] O.J. No. 409, Ontario Court of Appeal, D.M. Brown, D. Paciocco and B. Zarnett JJ.A., January 28, 2019. Digest No. TLD-March42019010