Insurance companies and wrongful death claims

By Alan Shanoff ,Toronto Sun

First posted: Saturday, August 18, 2012 06:26 PM EDT


On the morning of July 31, 2006 the lives of Randall A. Palmer and Michelle Vokes intersected on Highway 6/21 in Owen Sound with fatal results. Palmer, driving without insurance, was speeding along the highway “significantly in excess of the posted speed limit of 50 kph,” running late for a date in traffic court. Vokes, nine months pregnant, was exiting a shopping plaza. Vokes and her unborn child died in the crash leaving behind two daughters aged 3 and 5, as well as her husband.

Husband and father, Bradley Vokes sued Palmer. The jury found Palmer entirely at fault for the collision and awarded $117,000 to the 5-year old, $135,000 to the 3-year old and $90,000 to the husband for loss of care, guidance and companionship of their mother and wife.

These paltry sums for the death of a parent and spouse are the result of our miserly laws which don’t allow for any compensation for grief, sorrow or mental anguish resulting from the death of a loved one. It doesn’t matter how much a grieving spouse, parent or child suffers.

Instead the law allows only for minimal compensation for what we clinically refer to as loss of care, guidance and companionship, in addition to actual financial losses.

Judges and juries are not permitted to award a sum to provide compensation for the loss of a loved one, and punitive damages are rare. They aren’t allowed to award compensation for the hurt suffered, nor the value of the life of the deceased family member.

This kind of makes sense, as no sum can truly compensate for the loss of a life and even attempting to place a dollar value on the loss of a life seems almost ridiculous. But providing no or small sums as financial compensation is even more ridiculous since awarding money is the only real remedy a court can provide.

The trifling sums notwithstanding, Vokes’ insurer — since Palmer had no insurance, Vokes’s insurance policy covered the claim under its uninsured driver coverage — ING Insurance Company (now Intact), appealed the jury verdict claiming Vokes was at fault for turning in front of Palmer’s vehicle and that the sums awarded for loss of care, guidance and companionship were excessive.

The Ontario Court of Appeal dismissed the insurer’s appeal late last month ruling it would have been difficult for Vokes to have detected Palmer’s excessive speed. Evidence at trial indicated Palmer was travelling at a rate of 120 kph in the 50 zone.

The Court of Appeal also ruled the amounts provided for loss of care, guidance and companionship, although high in accordance with past precedents, were not inordinately high.

According to the Vokes’ family lawyer, Adam R. Little of Oatley Vigmond, the awards to the children represent the highest awards ever produced in Ontario and reflect the “recognition that a child suffers a very real non-economic loss when they lose a parent.”

Past precedents establish an upper end of $125,000 to parents for the loss of a child with much smaller sums being awarded to children for the loss of a parent. Little sees the higher award to the Vokes’ children as a welcome development in the law.

Two things stand out in this case. First, why would the Vokes’ insurer appeal the jury verdict? What could they have expected to gain, other than perhaps a small reduction in the award? Why put the Vokes family though further anguish and legal expense?

The sums awarded by the jury weren’t extravagant.

And what about the at fault driver, Palmer? He was driving without insurance and was rightly convicted and fined for that offence. But he was never convicted of a criminal charge, let alone a lesser Highway Traffic Act careless driving charge.

The Court of Appeal decision should end the sad litigation.

No insurance company would have the temerity to attempt an appeal to the Supreme Court of Canada.

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