Maureen Black v Advantage General Insurance Company Ltd
| Jurisdiction | Jamaica |
| Judge | Wint-Blair, J |
| Judgment Date | 17 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU 2022 CD00471 |
[2023] JMCC Comm. 45
CLAIM NO. SU 2022 CD00471
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE COMMERCIAL DIVISION
Insurance — Whether Striking out or Summary Judgment — Motor vehicle collision — Release and discharge executed not honoured — Fraudulent misrepresentation alleged by insurer — Burden of proof — Whether Accord and Satisfaction — Whether Breach of contract with claimant
Civil Procedure Rules 10.5(1),(4),(5), 15.2(b), 26.3(1)(a),(c),(d) & 74.4 Motor Vehicle (Third Party Risks) Act, sections 4,8 & 18
Ms Ashley Mair instructed by Mayhew Law for the Claimant
Ms S. Wright instructed by Campbell McDermott for the Defendant
The application before the court seeks orders striking out the defendant's statement of case. Alternatively, that summary judgment be entered in favour of the claimant. The claimant grounded her application on rules 10.5(1),(4), (5), rules 26.3(1)(a),(c), (d) and rule 15.2(b) of the Civil Procedure Rules (“CPR”). In addition, the claimant asks the court pursuant to rule 74.4 to dispense with mediation as the matter is unlikely to be resolved by those means and to apply the overriding objective.
On the date the application was heard a number of documents were not on the court's file. This necessitated this decision being reserved.
In support of the application, the claimant relies on the affidavit of Lesley-Ann Stewart, 1 attorney-at-law employed to Mayhew Law. She deposed that the claimant's motor vehicle was involved in an accident on or about November 30, 2020, while being driven by the claimant's authorised driver, Kemoy Williams along Llandovery main road in the parish of Saint Ann. Upon reaching a section of the road, Kemon Davis, so negligently and recklessly drove, managed and/or controlled the motor vehicle bearing registration 9044 HZ that it collided into the claimant's motor vehicle causing the claimant to suffer loss, damage and incur expense, (“the accident.”)
The defendant was at all material times the insurer of the motor vehicle bearing registration number 9044 HZ owned by Kemon Davis. Mr Davis accepted liability for the accident. The defendant pursuant to its right of subrogation, entered into discussions with the claimant through her insurance company, Key Insurance Company Limited, for settlement of the claimant's claim arising from the accident.
These settlement discussions were successful and in response, the defendant presented a form of release and discharge in the amount of Two Million Four Hundred and Twenty-Four Thousand Three Hundred and Two Dollars and Eighty-Six
Cents ($2,424,302.86) to the claimant. This sum was agreed to be paid to the claimant by the defendant in full satisfaction of all claims, costs and expenses in respect of all personal injury and loss of damage to property suffered by the claimant as a result of the accidentThe claimant accepted the offer and signed the release and discharge. It was returned to the defendant on July 21, 2021, along with a copy of the claimant's driver's licence. In breach of the terms of the release and discharge, the defendant has refused and failed to pay the agreed sums.
A claim was filed on October 19, 2022, and served on the defendant on October 20, 2022. The defendant filed a defence on or about November 30, 2022. The defence was a bare denial which failed to set out any facts on which the defendant intended to rely to dispute the claim. The defendant therefore has no real prospect of successfully defending the claim.
Several demands have been made for the defendant to pay the sums as agreed in the release. By letter dated June 27, 2022, the claimant's attorneys demanded payment of the outstanding sums. The defendant responded but not to the substantive demand. In the circumstances, mediation will serve no useful purpose.
In support of the application, Terry-Joy Golaub also filed an affidavit 2 in which she stated that she is the legal officer at Key Insurance Company Ltd. (“Key.”) In response to the affidavit of the claimant, the affiant deposed that prior to engaging in settlement discussions with the defendant, Key commissioned Priority Investigations (“Priority”) to investigate the motor vehicle accident involving the claimant's motor vehicle which took place on or about November 30, 2020. Priority having interviewed the claimant's driver and the officer on scene, in its report dated
March 2, 2021, determined that the accident had occurred on the date, time and place described by the claimant's driver. The damage was also consistent with the nature and circumstances of the accidentBased on that report, Key was satisfied that the accident had occurred. Kemon Davis had accepted liability for the accident and the defendant pursuant to their right of subrogation entered into settlement discussions with the claimant and with Key for the settlement of the claimant's claim. These settlement discussions were successful. The defendant presented a release and discharge in the amount of Two Million Four Hundred and Twenty-four Thousand Three Hundred and Two Dollars and Eighty-Six Cents ($2,424,302.86) to the claimant.
This sum was agreed to be paid to the claimant in full satisfaction of all claims, costs and expenses in respect of all personal injury and loss of damage to property suffered by the claimant as a result of the accident and was to be paid by the defendant. The claimant accepted the offer, and a signed release and discharge was returned to the defendant on July 21, 2021, along with a copy of the claimant's driver's licence.
Since then, the defendant has refused and/or failed to pay the settlement sum. Several demands both oral and written have been made to the defendant with the most recent being in June 2022.
The defendant was fully aware of the investigator's findings prior to entering into settlement discussions with Key. Before the claim was filed, the defendant did not disclose the existence and findings of the investigator's report it had commissioned from Detect Investigations Company Limited (“Detect”). As at the date of this affidavit, neither the claimant nor Key has had sight of that document despite requests for the production of and copies of same.
The affiant deposed that her industry experience has made her aware that such an investigation involves not just analysing the “black box” of the motor vehicle, but also the questioning of witnesses and visits to the accident site. The investigation was also conducted one year after the accident. The authenticity and chain of custody of the “black box” is questioned.
In addition, there was significant delay between the defendant's discovery of the alleged misrepresentation and their communication to their insured that they would not provide indemnity. Such delay has resulted in prejudice to the claimant whose rights accrued under the signed release and discharge.
In response to the application, the defendant filed the affidavit of Claudeen Stewart Linton. 3 She deposed that she is the legal officer for the defendant. The defendant denies the allegation of an accident between Kemon Davis (“the insured”) and Kemoy Williams on November 30, 2020, along Llandovery main road in the parish of St Ann or at all.
The defendant admits that it entered into settlement discussions with Key in 2021 to settle the claimant's claim under the mistaken belief that their insured had provided a truthful and honest report of the alleged accident. In fact, their insured had submitted a completed, signed motor accident report form in early December 2020 which amounted to a fraudulent misrepresentation of the alleged accident.
The insured in an excerpt from his statement said: “he was driving his vehicle on November 30, 2020, when he swerved to the right-hand side of the road and collided into the right front section of the Honda car.” This statement was false in all material respects. Investigators were commissioned to conduct investigations
surrounding the accident with the insured. Two investigators were retained Detect and ORB Crash Reporting and Analytics (“ORB.”)A report from ORB was received on or about March 19, 2021, and it provided black box data for the 2013 Toyota Corolla Axio registered 9044 HZ with certificate of insurance policy number MPCCS-906515. The report concluded that the damage to the vehicle insured by the defendant did not accord with a collision, neither was the airbag deployment system commanded. The ORB report concluded that the vehicle was not in motion when it was damaged, the vehicle speed was “0” and the shift position was “P.” The report significantly contradicted the statement of the insured in his motor vehicle accident report form dated December 9, 2020.
Mrs. Linton deposed that having received the “last investigator's report” in 2022, the defendant concluded that the insured had not been open and honest when he reported the accident and fraudulently misrepresented the information he gave about the accident on the motor accident report form. The declaration by an insured on the motor accident report form forms part of the contract and makes the truth of the statement a condition precedent for liability on the part of the insurer.
In a letter to the insured dated August 22, 2022, the defendant advised that the information in its possession confirmed that the accident was inconsistent with his account and that it would not be granting indemnity.
The defendant agrees that had there been no fraudulent misrepresentation on the part of its insured under the insurance policy, it would have been obliged to pay based on the claimant's executed release and discharge. However, given the...
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