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Enforcing Insurance Coverage

The purpose of buying insurance is to secure financial protection against loss or damage in specified circumstances, as well as peace of mind.  When insurers deny coverage or reserve their right to do so, for loss or damage to your own business or property, or liability claims against you by others, the consequences can range from costly to catastrophic.  Headed by Neo Tuytel, Fraser Litigation Group has one of the premier practices of enforcing insurance coverage on behalf of policyholders, and recovering against negligent insurance brokers, in Western Canada.

Since its inception in the Spring of 2014, our firm has assisted clients in recovering tens of millions of dollars in benefits from insurers who have disputed coverage under their policies, and brokers who provided negligent advice or placed inadequate insurance.  We have settled and prosecuted claims to recover damage to policyholders' own property and loss of business, as well as other first party claims, and enforce insurers' duty to defend and indemnify them against claims for liability by third parties, involving everything from building fires and construction projects, through pollution claims and a multi-million dollar Ponzi scheme, to allegations of assault and wrongful imprisonment.  In doing so, we have resolved - mostly by negotiated settlement, but mediation or in court if necessary - complex and even Supreme Court of Canada precedent-setting issues of coverage under commercial general liability (CGL), course of construction or builders' risk, professional errors and omissions (E&O), commercial or residential property, life and disability as well as other types of policies. 

Neo is routinely recommended by other lawyers, to their own clients, due to conflicts (ex. defending a client whose insurer is refusing to pay those costs) or because of his experience with insurance coverage, and track record of success.  In those situations, we respect the existing lawyer-client relationship, report back to referring counsel on outcomes, and do not seek further engagements from their clients.  We also act as co-counsel, or advise other law firms as consultants, and have had significant successes on matters previously handled by other counsel. 

Our approach to claims for insurance coverage is based on analyzing relevant facts and law from the outset, focusing on the key issues and strategizing throughout, all with a clear-eyed view to obtaining the best net financial result for clients.  We begin with the end in mind, drawing upon our decades of combined experience as counsel for insurers, as well as brokers, deep knowledge of insurance coverage case law and understanding commercial litigation processes.  Neo has also published and presented extensively on coverage issues and, since 2008, edited the Canadian Journal of Insurance Law.  Additionally, he has been named the 2018 Insurance Lawyer of the Year by the Canadian Bar Association, B.C. Branch. 

Insurance Coverage Enforcement - Track Record

Our experience and success in resolving claims for coverage under insurance policies and against negligent insurance brokers includes recovery of damage to policyholders' own property and loss of business, as well as other first party claims, and enforcing insurers' duty to defend and indemnify against claims for liability by third parties, before as well as since the inception of our firm, in the Spring of 2014.

Property Damage, Business interuption and other first party claims:

since inception of fraser litigation group (spring 2014):

  • Arbitrating and negotiating with first party property insurer settlement of eight figure claim for substantial destruction of lumber mill by fire, related business interruption loss and alleged wrongful denial of coverage, including successful application to summarily dismiss various defences of insurer (Fraser Cedar Products v Lloyds Underwriters, August 2016)

  • Suing and mediating with course of construction insurer and insurance broker, as well as suing and negotiating with security system provider, settlements of seven figure claims for total fire loss of Canada's first six-storey wood-frame condominium, despite alleged breach of security warranty and related misrepresentation in policy application

  • As co-counsel with other law firm, mediating settlement with commercial general property insurer and independent adjuster of seven figure claim for recovery of costs to repair fire and water damage to rooming house

  • Negotiating and settling with property insurer claim for recovery of costs to repair structural and consequential damage to legal non-conforming apartment building, caused by loss of support due to water leak, as well as loss of rental revenue beyond the period covered under policy, and actual legal costs to enforce coverage against insurer, all without legal proceedings

  • Suing and negotiating with residential insurers settlements of claims for fire losses by lenders under standard mortgage clauses, despite denials of coverage to borrowers, including based on exclusion for marijuana grow operations

  • Suing and negotiating recovery from commercial general property and course of construction insurers of costs to reroute damaged underground electrical supply to retail premises, also without litigation

  • Negotiating recovery from property insurers of claims for fire damage to apartment building, including rental loss beyond covered period under general property policy, without litigation

  • Negotiating recovery from commercial insurer of policy sub-limits for theft of sporting goods while in transit, and actual legal costs to enforce coverage, without litigation

  • Negotiating recovery from insurer under boat policy for corrosion damage to pleasure craft, despite corrosion exclusion and without litigation

  • Negotiating with group disability insurer settlement for termination of wage loss benefits to medical doctor, without litigation

  • Negotiating reversal of denials by travel medical insurers based on alleged pre-existing conditions, also without litigation

  • Pursuing property insurers and broker for denials of coverage to agribusiness, including under exclusion for growing crops

  • Suing property insurer and broker for recovery of losses due to destruction of newly purchased home by fire during extensive renovations, where insurer purported to void policy for alleged misrepresentation regarding use or occupancy

  • Advising strata councils on adjustment of claims for substantial fire damage to 24 and 300 unit housing complexes

  • Pursuing recovery from insurer under boat dealers policy for damage to pleasure craft engine allegedly caused by failure of component part

Highlights before inception of firm:

  • Successfully arguing appeal against subrogating property insurer, from trial judgment for more than $15,000,000 estimated fire loss, based on owner's covenant with warehouse operator to insure contents of paper warehouse, previously handled by other counsel (Kruger Products Limited v. First Choice Logistics Inc., 2013 BCCA 3 (CanLII); leave to appeal to the Supreme Court of Canada refused)

  • Defending and obtaining dismissal on appeal, also based on owner's covenant to insure, of subrogated claim for fire damage to warehouse facility which exceeded limit of tenant's liability policy (North Newton Warehouses Ltd. v. Alliance Woodcraft Manufacturing Inc., 2005 BCCA 309 (CanLII), leave to appeal to the Supreme Court of Canada refused)

  • Suing and mediating settlement claims under property policy and against broker for destruction of seasonal residence by fire during repairs to previous flood damage and contemporaneous renovations, despite course of construction exclusion and alleged non-disclosure

  • Negotiating with property insurers recovery of claim for costs to repair recreational property damaged by record weather event, as well as rental loss beyond covered period, and legal costs to enforce coverage as well as defend builders' lien action by repair contractor, all without litigation

  • Suing and mediating recovery from course of construction insurer for failure of excavation shoring and resulting partial loss of planned underground underground parkade

  • Suing and mediating recovery from residential insurer and broker for destruction of dream home by fire during course of construction

  • Suing and mediating recovery from residential insurer and broker for fire damage to house rented to students, despite rooming house exclusion and alleged misrepresentation

  • Negotiating recovery from boat insurer for total loss of pleasure craft while under tow, without litigation

  • Negotiating recovery of business interruption claim by restaurant due to fire, also without litigation

  • Negotiating and settling coverage issues related to a construction loss arising out of a slope failure

Duty to Defend and indemnify third party liability claims:

Since inception of fraser litigation group (Spring 2014):

  • Successfully suing recent CGL insurers for declaration that they have duty to defend claim against policyholders for remediation of historic environmental contamination, despite 'absolute' pollution exclusion, as well as all actual legal costs of both defending action and enforcing insurer's duty to defend client (West Van Holdings v. Economical Mutual Insurance, 2017 BCSC 2397 (CanLII))

  • Successfully defending petition by homeowner's insurer for declaration that it has no duty to defend alternative claims of assault and negligent bodily injury in US action, and cross petitioning for exclusive control of defence as well as recovery of all actual legal costs to both defend action and enforce insurer's duty to defend client (Co-operators General Insurance Company v. Kane, 2017 BCSC 1720 (CanLII))

  • Negotiating with professional errors and omissions insurer reimbursement of defence costs and indemnity for settlement contribution by financial institution in eight figure class action, with respect to claims for vicarious liability of employee regarding alleged fraudulent (Ponzi) investment scheme, despite intentional acts exclusion and without coverage litigation

  • Negotiating with wrap-up liability insurers contribution to settlement of arbitration by mine owner claiming against Engineering Procurement and Construction (EPC) contractor for delays, cost-over-runs and deficiencies regarding a massive expansion project, also without litigation

  • Negotiating with historical commercial general liability (CGL) insurers settlement of high profile action for alleged wrongful arrest and imprisonment, despite limited time on risk as well as substantial deductibles in multiple policy periods, and without coverage litigation

  • Negotiating with CGL insurer reimbursement of defence costs and contribution to settlement of action for water ingress to hotel, on behalf of allegedly negligent product manufacturer, despite substantial self-insured time on risk as well as lengthy delay in reporting claim, and also coverage without litigation

  • Negotiating with directors and officers insurer allocation of covered and excluded costs to defend a Canadian mining company in a London arbitration, as well as insurer's demand for contribution to settlement of shareholders class action

  • Negotiating with and securing from Canadian CGL insurer duty to defend employer against claim for vicarious liability in assault action between US employees, as well as reimbursement of all actual legal costs to enforce coverage, despite intentional acts exclusion and without litigation

  • Negotiating with and securing from CGL insurer duty to defend contractor in action for cost over-runs in remediating environmental contamination, as well as reimbursement of all actual coverage enforcement costs, despite pollution exclusion and without litigation

  • Negotiating with and securing from wrap-up insurer, under completed operations coverage, duty to defend action against contractor for multiple years of loss or damage alleged by subrogating home warranty providers

  • Negotiating with and securing from cargo liability insurer contribution to settlement of action for alleged contamination of products loaded onto vessels, without coverage litigation

  • Negotiating and securing from CGL insurer duty to defend action for alleged negligent filling of scuba tanks, and reimbursement of coverage enforcement costs, despite scuba diving exclusion and also without litigation

  • Negotiating with and securing from residential insurer duty to defend manager of a child's sports team from assault action, and obtaining reimbursement of coverage enforcement costs, despite intentional acts exclusion and without litigation

  • Negotiating with auto insurer cents on dollar settlement of liability judgment, despite denial of coverage for alleged policy breach, also without litigation

  • As co-counsel with US firm, negotiating and securing from CGL insurers coverage for indemnification of seven-figure judgment for infringement of intellectual property rights, as well as costs of appeal and potential re-trial, despite prior reservation of rights to deny

  • Assisting counsel with other firm in arguing defence and mediating settlement of eight figure damage to prominent public facility during course of major construction work, based on covenants to insure project

  • Assisting plaintiff's counsel in negotiating with and securing from historical CGL insurer coverage for defendant religious organization, regarding mediated settlement of claims for historical sexual abuse of clients, despite limited policy documentation

  • As co-counsel with other firm, appealing dismissal of petition for declaration that financial institutions errors and omissions insurer has duty to defend class action alleging deceptive business practices, misrepresentation and breach of contract with respect to foreign exchange surcharges on withdrawals from automated banking machines

  • Suing wrap-up insurers for contribution to EPC contractor's costs of defending arbitration by mine owner claiming for delays, cost-over-runs and deficiencies regarding a massive expansion project

  • Defending claim by liability insurer, as well as counterclaiming and suing broker, for reallocation of contributions to settlement of action for alleged contamination of products loaded onto vessels

  • Pursuing from wrap-up insurer coverage for general contractor against claims by owner of transportation authority for alleged premature failure of equipment installed as part of major construction project

  • Pursuing from wrap-up insurer, under completed operations coverage, settlement of action against contractor for multiple years of loss or damage alleged by subrogating home warranty providers

  • Pursuing directors and officers insurer for duty to defend strata corporation against human rights complaint for alleged discrimination

  • Pursuing CGL insurer for coverage of claim under lost key endorsement to policy

Highlights before inception of firm:

  • As co-counsel, winning in Supreme Court of Canada and resolving conflict between Ontario and B.C. decisions on duty to defend construction deficiency claims against general contractors under CGL policies, arising out of leaky building litigation (Progressive Homes Ltd. v. Lombard General Insurance Co., 2010 SCC 33 (CanLII))

  • Winning in the Supreme Court of Canada and setting a precedent in Canada and the Commonwealth, with respect to overlapping liability insurance coverage between residential and group liability policies, for an equestrian accident causing paraplegia (Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48 (CanLII))

  • Negotiating with and securing from historical CGL insurers of prominent real estate developer omnibus agreement with respect to payment of defence costs and settlements in multiple leaky building actions, without coverage litigation

  • Negotiating with and securing from historical CGL insurers contribution to settlement of actions against contractor for alleged negligent installation of fixtures in multi-unit residential project

  • Suing and securing from overlapping professional errors and omissions liability insurer contribution to defence costs and settlement of medical malpractice claim

  • Defending real estate developer against claims for costs to clean-up historical contamination under Environmental Management Act (EMA), and negotiating contribution to settlement by historical CGL insurers, despite pollution exclusions

  • Defending chemical company against claims for clean-up costs under EMA, and negotiating contributions to settlement as well as defence costs by historical CGL insurers, also despite pollution exclusions

  • Negotiating settlement by subrogated claims for damage caused to other unit owners in a strata, caused by tenants illegal marijuana grow operation