The practice area of commercial insurance lawyers that work on litigation is generally understood to comprise the provision of advice and representation, whether by way of negotiation, judicial proceedings, alternative dispute resolution, mediation or arbitration, in all matters relating to liability and coverage disputes regarding commercial general liability (CGL), all risks, property and other such cover between insurers, insureds, reinsurers, excess insurers, intermediaries, special risks underwriters and insurance mutuals.
Special aspects of commercial cover, such as product liability, and other classes of cover such as automobile, fidelity, surety, marine, aviation, professional liability and directors' and officers' liability are dealt with in the following Sections of the Lexpert Directory:
Commercial insurance plans are insurance plans written or issued by an insurance company (insurer) on the assets, properties, and workers of a business (insured) when damage occurs brought on by an accident, loss, fortuitous event, or any other causes as stipulated by both parties in the insurance policy or contract.
There are many types of commercial insurance, and it does not hurt to consult with a commercial insurance lawyer to determine the most applicable one for a certain business before entering one. The common types are:
Where real and movable properties of a business are being insured. These properties do not only include the commercial building, but also the business’s other assets, such as machinery, equipment, inventory, or tools. Insurance policies or contracts may usually cover the repair or replacement of these properties.
When a business is primarily engaged in transportation of goods or persons, and whose main assets are a significant number of vehicles, business owners tend to insure the vehicles and their employees through a commercial auto insurance.
The coverage of a commercial auto insurance depends on the specific policy, the mandatory coverage as provided by some provincial statutes, and whose party is at fault. Generally, it may include the repairs or regular maintenance of vehicles, third-party liability, accident coverage, and direct compensation.
This type of insurance covers liabilities, such as any damage or injury, that a company will incur arising from accidents or losses during the course of its business operations. Whether the accident which caused the liability happened within or outside the business premises, include the damages caused by the company’s products, or include the cost of actual and/or cost litigation would depend on the written insurance policy.
This may also be referred to as worker’s compensation insurance, professional liability insurance, or malpractice insurance (for professionals like doctors, accountants, or lawyers), an E&O insurance protects businesses or professionals from the various liabilities or negative consequences arising from the conduct of services of the said business or professional. The cause of liability may include employee’s negligence, misconduct, improper product advice, or breach of contracts in delivering goods or providing services.
If your need for a lawyer falls under this, you may want to see our practice area pages for:
Litigation for commercial insurance plans or policies are court actions which may be commenced either by the insured against the insurer; the insurer against the insured; the insurer against the reinsurer; or even the third party either against the insurer or the insured. A commercial insurance lawyer may represent either party in these litigations and guide them as to appropriate remedy that they may pursue.
The litigation process in Canada starts when a case is filed before the lower courts, by filing of the pleading of a plaintiff, to be answered by the pleading of the defendant. After which, parties use the modes of discovery, obligating each party to disclose all documents in their possession necessary for the case. Trial ensues, which includes oral arguments, and the presentation of evidence and witnesses. Lastly, judgment is rendered based on the totality of all these submissions, including the initiatory pleadings.
When a party is unsatisfied with the judgment of the lower court, it may be appealed to the Federal Court of Appeal, or to the provincial or territorial Court of Appeal. If again the decision of the appellate court is adverse to the appellant, said party may appeal to the Supreme Court of Canada, who renders final adjudication on the case presented.
In suing an insurance company (the insurer), it is recommended to seek the advice of a commercial insurance lawyer to help guide the insured company or individuals in the process of court litigations.
Before proceeding to litigation, and depending on the arbitration or mediation clauses in the insurance contract or policy entered, an alternative dispute resolution (ADR) may first be used. If the contact provides for a mediation clause, a commercial insurance lawyer may represent the insured before the insurer to come up with an amicable settlement between the parties. If it’s an arbitration clause, then the dispute will be submitted to an arbitral proceeding, where the commercial insurance lawyer will try to obtain a favourable award for the insured party.
If any ADR method fails, or the arbitral award is not favourable to either the insured or the insurer, a court action may be resorted to with the assistance of a commercial insurance lawyer.
Generally, an action against the insurer by the insured would depend on the provincial or territorial laws on insurance companies or its laws on contracts, coupled with the federal insurance laws and regulations. However, a common cause would be the breach of contract by the insurer, which may give rise to the following actions:
On the other hand, an insurer may also proceed against the insured, whenever there’s breach of insurance contract (same as above), or in cases where the insured has misrepresented itself, or has acted in bad faith. The insurer may avail of the following remedies against the insurer:
With the complications on the applicability of either the provincial or federal statute, in relation to the kind of action, a commercial insurance lawyer may assist clients in determining a more appropriate course to be followed.
The insurance industry is regulated in Canada both by federal, and provincial and territorial laws and regulations. The federal government is concerned with the prudential regulation of insurance companies, while the provincial and territorial governments monitor the conduct of business of these insurance companies, such as meeting their financial obligations to their insured companies, etc.
The Insurance Companies Act regulates the incorporation of insurance and reinsurance companies at the federal level. In resolving issues before proceeding to litigation, the Act obligates these companies to establish procedures in addressing complaints from their insured members. Under the Act, insurers and reinsurers are also prohibited from engaging in businesses not related to financial or insurance services.
The mandate of the Act is carried out by the Office of the Superintendent of Financial Institutions (OSFI), which regulates the solvency and financial soundness of insurers and reinsurers. In addition, provincial and territorial regulators called the Superintendents of Insurance, who in turn regulates the products and market conduct of these insurers and reinsurers.
Want to know more about your rights and remedies available to you under the law, either as an insurer or an insured? See below for the best commercial insurance lawyer in your area as ranked by Lexpert.