ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-0382-00
DATE: 2015 Nov 25

BETWEEN:

WADE BRETT COBB and ERICA MAE COBB
Plaintiffs

– and –

THE ESTATE OF MARTIN T. LONG
Defendant

K. Bonn, for the Plaintiffs

S. Baldwin, for the Defendant

Argued by written submissions dated November 19 and 20, 2015

Belch, J.

TERMS OF judgment DECISION, supplemental issues

[1] On November 13, 2015, this court delivered what it thought was its final decision related to the Judgment following the jury award of October 5, 2015. However, counsel for the parties in their respective correspondence of November 19 and 20th seek further adjudication.

[2] Counsel for the defence writes: “The decision on the Terms of Judgment is silent with respect to the reduction required by the receipt of housekeeping SABs received before the trial of the action.” The court hastens to point out receipt of housekeeping SABs was never presented as an issue for the court’s determination on the Terms of Judgment.

[3] In “dollars and cents”, this is a $4150 issue. The plaintiffs seek $10,000 for future housekeeping; the defence agrees to pay $5850.

[4] In addition, the defence seeks disclosure from the plaintiffs:

a. of the litigation insurance policy;

b. of the particulars of coverage;

c. of the policy limits; and

d. any other relevant information with respect to the litigation insurance that may be required following a review of the above noted disclosure.

[5] The defence submits disclosure of the litigation insurance policy and/or particulars will assist the parties in making informed and sensible decisions with respect to the issue of costs.

[6] On the issue of disclosure, counsel for the plaintiffs responds:

a. Whether or not the plaintiffs or the plaintiffs’ lawyers obtained litigation insurance is not relevant to the defence and not relevant to the court’s determination of costs.

b. If there is insurance, that is a matter between the plaintiffs and their Law firm; the defence has no legal right to access any particulars of the putative insurance policy.

c. An insurer for litigation insurance may not be required to pay any amount on any judgment for costs.

d. There is no agreement that there is any insurance that may be available under which an insurer may be liable to pay any amounts. This being the case, Rule 30.02 (3) of the Rules of Civil Procedure does not apply.

e. Further, this court must first determine to what extent the plaintiffs are entitled to costs and second, whether or not the defendants are entitled to any costs.

HOUSEHOLD EXPENSES

[7] Regarding housekeeping, counsel agree the plaintiffs received $9150 from the SAB insurer prior to the final agreement of June 29, 2010 and the June 29 agreement is silent on the issue of housekeeping expenses.

[8] The defence argues it is entitled to deduct $9150 from the jury award of $5000 for past housekeeping expenses and the $10,000 for future housekeeping expenses. The plaintiffs argue as the $9150 is for past housekeeping expenses, that amount gets deducted from the jury award of $5000 for past housekeeping expenses and the defence cannot deduct the balance of the $9150 against the jury award of $10,000 for future loss of housekeeping. The plaintiffs submit this is simply the application of the existing case law the plaintiffs presented on the motion to finalize the Terms of Judgment and which is mentioned in my decision of November 15. This is an example of “matching up” line for line, as “apples to apples, oranges to oranges.”

CONCLUSION

[9] The court accepts the plaintiffs’ position on the application of the existing case law. The defence cannot deduct past benefits from future benefits. This will result in the defence being required to pay $10,000 for the loss of future housekeeping expenses which in turn means the total judgment is $34,000 and not the $29,850 as suggested by the defence.

[10] In addition, the request by the defence for disclosure of insurance particulars I find is premature and as well, perhaps unnecessary, following what may be either the parties’ agreement or my eventual decision on overall costs.

[11] The plaintiffs are entitled to their costs of this motion.

Honourable Mr. Justice Douglas M. Belch

Released: November 25, 2015

COURT FILE NO.: CV-09-0382-00
DATE: 2015 Nov 25

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

WADE BRETT COBB and ERICA MAE COBB
Plaintiffs

– and –

THE ESTATE OF MARTIN T. LONG
Defendant

terms of JUDGMENT DECISION – SUPPLEMENTAL ISSUES

Belch, J.

Released: November 25, 2015