Pilot not its counsel made the decision to deny the claim and Pilot was fully

Pilot not its counsel made the decision to deny the

This preview shows page 10 - 13 out of 44 pages.

... Pilot, not its counsel, made the decision to deny the claim and Pilot was fully aware, because it was a recipient of the letters, of counsel's "enthusiasm". Pilot recognizes that it bears the responsibility for what occurred.
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Page 11 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 23 The appellant was reinstated in her nursing position in July 1994 and received about $40,000 in back pay in September 1994. 24 In the spring of 1995 the Whitens, in an attempt to satisfy Pilot that they did not set the fire, offered to take a polygraph test administered by an expert selected by Pilot. This was apparently accepted by the jury as a good faith offer made to allay Pilot's suspicions. Pilot refused, without giving any reasons. [page612] 25 The Whitens lived in a small community. People were aware that their home was not being rebuilt because the insurer was alleging arson. The stigma persisted. Pilot continued to allege arson throughout the trial. Pilot now concedes that the evidence as a whole unequivocally demonstrates that the fire was accidental. II. Judicial History A. Ontario Court (General Division) (1996), 132 D.L.R. (4th) 568 26 This action was tried before Matlow J. and a jury. His instruction to the jury on the issue of punitive damages was skeletal but occasioned no objection from either counsel: And finally, if you determine that Pilot's defence of arson failed and that Pilot breached the provision of the policy of insurance by denying the plaintiff's claim, you must then go on to determine whether the plaintiff is entitled, as well, to recover punitive damages. Punitive damages can be awarded in certain circumstances to serve as a punishment. In this case, depending on your finding of fact, punitive damages can be awarded to deter Pilot and other insurers from engaging in improper conduct in dealing with the claims of their insureds. Punitive damages, unlike the other types of damages claimed in this case, are not intended to compensate the plaintiff for her loss. If they are awarded, they will constitute a windfall for the plaintiff and a penalty for Pilot. Before you may properly make an award of punitive damages, Pilot's defence of arson must fail and you must be satisfied that the plaintiff has proven that Pilot failed to deal with her claim in good faith and instead dealt with this in a malicious, high-handed, arbitrary or capricious manner, and that Pilot's conduct warrants the imposition of a penalty. 27 After the charge, the jury returned with the following question: Dear Justice Matlow, we are having difficulty in agreements pertaining to assessing the amount of [page613] the claim for punitive damages. Would you be able to provide us some guidelines to help us arrive at a consensus. Thank you, the jury. 28 Counsel were consulted and agreed with each other that no dollar amounts should be mentioned. Pilot's counsel told the trial judge, "in terms of suggesting amounts or anything, I think it ought not to occur". In these circumstances, the trial judge responded to the jury by
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Page 12 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595
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