Maureen Biehn and Richard Biehn v. Brian Rayle, Hertz Vehicles LLC, The Hertz Corporation and State Farm Mutual Automobile Insurance Company
CITATION: Maureen Biehn and Richard Biehn and Brian Rayle, Hertz Vehicles LLC, The Hertz Corporation and State Farm Mutual Automobile Insurance Company, 2015 ONSC 2624
COURT FILE NO.: 10-122
DATE: 2015-April-22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Maureen Biehn and Richard Biehn and Brian Rayle, Hertz Vehicles LLC, The Hertz Corporation and State Farm Mutual Automobile Insurance Company
BEFORE: The Honourable Mr. Justice D.J. Gordon
HEARD: December 18, 2014
COUNSEL: G. Tsakalis & S. Dhami for moving parties/defendants, Brian Rayle et al. R.P. Hosack for responding parties/plaintiffs, Maureen Biehn et al.
Endorsement
[1] The defendants, Brian Rayle, Hertz Vehicles LLC and The Hertz Corporation, in their notice of motion returnable August 14, 2014 sought the following relief:
a) a further and better affidavit of documents from the plaintiffs; and,
b) disclosure from a non-party, State Farm Mutual Automobile Insurance Company (“State Farm”) of the settlement records and other documents pertaining to the accident benefits settlement.
[2] Both matters were ultimately resolved. The moving parties now seek a cost award against the plaintiffs or their counsel, on a substantial indemnity basis, of $15,573.18. The claim is said to result from the misrepresentation of the accident benefits settlement for the purpose of depriving the moving parties with appropriate deductions for collateral benefits. The responding parties also seek a cost award, on a substantial indemnity basis, of $4,638.70, as the motion for a further affidavit of documents was abandoned.
[3] Mediation on the accident benefits claim occurred on May 14, 2014 and it appears a settlement resulted. The Settlement Disclosure Notice (“SDN”), being State Farm’s offer to settle benefits, was prepared by the insurer and signed by its representative on June 30, 2014. The offer was accepted by Maureen Biehn, the insured, on July 24, 2014.
[4] The SDN reported a total settlement offer of $1,150,000, including $250,000 for “other items”, said in argument on behalf of the moving parties to be costs.
[5] On October 28, 2014, State Farm provided a payment summary breakdown of the settlement. No reference is made in this document to “other items”.
[6] The moving parties say the plaintiffs or their counsel misrepresented the actual settlement. They rely on correspondence from counsel for State Farm who says the distribution of benefits in the SDN “was set at the direction of the plaintiff and her counsel”.
[7] Assuming there is no issue with the admissibility of this correspondence in evidence on the motion, none having been raised, the attempt by State Farm to avoid responsibility for its own document must fail. This was a Rule 30.10 motion seeking relief only against State Farm. If there is any liability for costs on the basis of alleged misrepresentation, such must include State Farm. The controversy is initiated by State Farm’s offer regardless of any explanation.
[8] Of greater concern, in my view, is the basis for the cost claim. The alleged misrepresentation, and bad faith, has been pleaded by the moving parties in their amended statement of defence. A determination on costs necessitates findings on the substantive claim. That is an issue for trial.
[9] The request for a further and better affidavit of documents was premature. It appears there was ongoing disclosure from plaintiffs counsel and the moving parties had yet to deliver their own affidavit of documents. It also appears there are difficulties in communication between counsel.
[10] In result, I decline to award costs to either party. Rather, any such claim is reserved to the trial judge.
Gordon, J.
Released: April 22, 2015
CITATION: Maureen Biehn and Richard Biehn and Brian Rayle, Hertz Vehicles LLC, The Hertz Corporation and State Farm Mutual Automobile Insurance Company, 2015 ONSC 2624
COURT FILE NO.: 10-122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maureen Biehn and Richard Biehn Plaintiffs
- and -
Brian Rayle, Hertz Vehicles LLC, The Hertz Corporation and State Farm Mutual Automobile Insurance Company Defendants
COURT FILE NO.: 10-122
ENDORSEMENT
Gordon, J.
Released: April 22, 2015