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118 Cards in this Set
- Front
- Back
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state the primary purpose of tort law |
to provide compensation to plantiffs |
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define tort |
a private wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages |
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identify two types of tort |
intentional tort & unintentional tort |
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give an example of intentional tort |
deliberately hitting someone |
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Give an example of unintentional tort |
customer in clients store, trips on loose carpet |
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provide an example of breach of contract |
you hire a contractor to build you a house, the contractor never shows up to build the house. |
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describe how the rule of precedent influences the decisions made by the courts |
courts of today will be guided by decisions of previous courts in matters of having similar circumstances |
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are rules of precedent subject to change |
yes, sometimes what made sense in the past, no longer makes sense. |
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define statute law |
statute laws are written laws enacted b provincial and federal governments. when in place they override common law. |
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what are compensatory damages |
are awarded by courts to compensate plantiffs |
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give 2 types of compensatory damages |
general damages & special damages |
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what is the purpose of exemplary or punitive damages |
are awarded by courts to punish defendants. courts impose these awards on defendants when they wish to make an example of them. |
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when may courts award nominal damages |
when cases are brought on by questions of principals and plaintiffs have not suffered any damages. |
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courts may provide remedies for breach of contract what are the remedies |
-provide payment of damages to plaintiff -enforce specific performance of contract -grant an injunction not allowing a party to perform a specific act -grant recession of contract to return parties to their pre contract position |
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describe the doctrine of negligence |
places a duty on all people to use due care in their interactions with others from which injury may result |
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what are 3 conditions required before negligence can be proven |
-defendant owed the plaintiff a legal duty of care -duty was breached as a result of defendants negligence -plaintiff suffered damages as a proximate result of the defendant's negligence |
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courts do no expect perfection of defendants. what will courts use as a measurement of a defendants actions? |
courts will compare defendants actions with that of a reasonable man |
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explain strict liability |
when certain actions are so hazardous courts assume defendants are guilty until they can prove themselves innocent |
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when will people be considered occupiers |
when they control the premises. (when they admit and exclude entry of others to the premises) |
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occupiers liability act increase duty of care on occupiers, what is this duty of care |
imposes common duty on all occupiers to keep visitors reasonably safe when using premises for which they were invited, permitted by law to use premises or permitted by occupier to use premises |
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according to occupiers liability acts who are 2 persons not owed this duty of care |
-visitors who willingly accept risks -trespassers |
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what are 2 activities that could result in trespassers successfully suing occupiers |
-setting traps |
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in common law independent contractors are responsible for their own torts. for occupiers to avoid torts of independent contractors what must occupiers prove? |
-they must show that reasonable care was used when selecting the independent contractor -work that was requested to be completed was reasonable work |
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what are 3 circumstances where occupiers may be held responsible for negligence of independent contractors |
-when work being performed by the contractor was inherently dangerous -when loss is caused by defective equipment, machinery or supplies that was provided by the occupier -when occupier controls the contractors performance of work |
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when may landlords be held responsible for injuries in single occupancy buildings |
landlords of single occupancy buildings may be liable for injuries when they were aware of dangerous conditions which existed when the lease was signed. -OR- when they agree to maintain premises and fail to do so after receiving reasonable notice from tenant and injuries result |
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landlords of multiple occupancy buildings have responsibilities for certain areas of buildings. what are these areas and what are their resonpsibilities |
landlords are responsible for injuries occuring in common areas |
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what are 3 activities that would constitute a nuisance |
-allowing smoke, vapors, fumes, and odors to escape premises -causing noise or vibrations which annoy neighbors -polluting land or water of others |
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what are 2 activities that constitute the tort of trespass |
-building structures which encroach another's land -disposing of garbage and other waste products on anothers land |
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what 2 conditions must be present for a products liability claim to proceed |
- loss must occur away from premises of person selling product - seller has completely given up possession of product causing loss |
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what 2 options are available to injured parties when they wish to sue manufacturers |
-injured parties may sue manufacturers in contract - injured parties may sue manufacturers in tort |
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what piece of legislation outlines the responsibilities of sellers to buyers |
sales of goods act |
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sellers must ensure the fitness of their product for a particular purpose. this is an example of implied warranty. this implied warranty requires buyers to exercise care in the selection of products to be used for particular purpose. there is one important exception to this implied warranty found in the sales of goods act which may place the responsibility back on the seller. explain this exception |
when the buyer makes known the particular purpose for which an item is required and depends on the sellers knowledge, it is implied that this product is reasonably fit for this purpose. |
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when buyers and sellers make their own conditions of sales, what are these conditions known as in the sales of goods act |
these are known as express warranties |
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what impact did the donaghue vs. stevenson decision have on the abilities of consumers to sue manufacturers |
as a result of this case, manufacturers were made responsible to the ultimate end user of their products |
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what are 3 duties owed by manufacturers to users of their products? |
-manufacturers are responsible for safe design -manufacturers must give proper warnings of dangers when using products -manufacturers must provide instructions when required. |
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What Are 2 Duties of Sellers |
-sellers are expected to be experts in the products they sell - sellers are expected to tell the truth about their products |
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what two conditions must be present for a completed operations loss to succeed |
-loss must occur away from premises of person doing work - work must have been completed or abandoned by person doing work |
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what are 2 ways tenants may be found liable for damage to premises they occupy |
-tenants may be responsible for losses in contract -tenants may be resposible for losses in tort |
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what standard of care do bailees owe to their customers |
bailees must use ordinary care when possesing others property |
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what is the common law rule respecting employer's liability for torts of their staff |
employers are responsible for torts of employees commitment while doing their normal actions in their job |
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when will employees not be held responsible for the torts of their staff |
-when employees delegate their work to someone else without employers permission -when employees frolic (sneak out of work) -when employees use employers property without permission |
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generally, are employees responsible for injuries sustained by employees arising out of the course of their employment? |
no employers will not be responsible for injuries to employees because most employees are enrolled in provincial workers compensation plans. when eligible for benefits under these plans employees give up their right to sue employers . |
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what are 4 coverages provided under section 1 - coverages ? (CGL) |
-coverage a bodily injury and property damage liability - coverage b - personal injury liability -coverage c - medical payments - coverage d - tenants legal liability |
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only certain types of losses are insured, what 2 losses are insured by section a found in CGLS |
bodily injury & property Damage |
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What are three components of bodily injury |
-physical injury to the body -sickness or disease -death resulting at any time, resulting from physical injury, or sickness / disease |
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identify 3 types of injuries not covered by the term bodily injury |
-mental anguish - Nausea -Hysteria |
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what are 2 components of the definition of property damage. (give Example) |
- Physical injury to tangible property (welder starts fire in customers building) - Resulting Loss of use of tangible property (cost to rent alternative premises while damaged premises are repaired or replaced) |
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what are 3 types of intangible property not insured by CGLS |
-copyrights -patents -licenses |
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when will CGLS respond to pay damages incurred by plaintiffs |
when clients are legally liable (obligated to pay) |
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what are 3 sources of liabilities business owners face & give examples |
-Tort Liabilities (negligent actions cause injury or damage) -Certain contractual liabilities (tenant assumes liability in landlord lease) -statutory liability ( Liabilities incurred by occupiers liability acts) |
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identify the coverage territory found in cgls |
canada & the USA (including its territories & Possessions) |
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losses arising from product liability claims may be insured when they occur outside the coverage territory. for them to be insured what 2 conditions must be met |
- product causing injury or damage was made or sold within coverage territory - suit for damages must be brought back to coverage territory |
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losses arising from business operations may be insured when they occur outside the coverage territory. for them to be insured 3 conditions must be present, identify these conditions |
-person causing loss has home withing coverage territory -person causing loss was only away for a short period of time on insured's business - suit for damages must be brought withing coverage territory |
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why do insurers have the right to defend |
insurers must insure all facts are presented to court so proper defense is provided and proper judgment rendered |
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when does insurer's duty to defend end |
insurers duty to defend ends when policy limits have been expended |
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how does the right to investigate claims benefit insurers |
this allows insurers to gather information from witnesses and compile first hand |
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how does the right to settle benefit insurers |
This Allows insurers to save money by settling with plaintiffs and avoiding the expense of going to court |
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when bodily injury losses result from force, what conditions must be present for these losses to be covered |
-force must be reasonable - force must be used to protect persons or property |
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identify 5 insured contracts found in CGLS |
-Lease of premises agreeements -sidetrack agreements -easement agreements -indemnification resulting from municipal ordinance -elevator maintenance agreement |
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what are 3 responsibilities imposed by elevator maintenance agreements |
- make all necessary adjustments -apply lubrication's as required - inform building owner when repairs/ replacements are required |
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CGLS also insure contracts where the tort liability of another has been assumed. when must this assumption of liability occur before coverage is available on CGLS? |
assumption must occur prior to any injury or damage |
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are oral contracts insured by a CGL |
yes there is no requirement for contracts to be written |
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are all liabilities assumed in contracts covered by CGLS? if not what types are not covered |
cgls will not insure assumptions made regarding breach of contract |
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will CGLS insure fines levied by governments because the employer's breach of workers compensation legislation? |
no CGLS will not insure Fines Imposed by WCB Plans |
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when employees injuries occur on the job how are they usually compensated |
workers compensation plans generally pay benefits to injured workers |
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what common law right do employees waive when eligible for benefits under Workers Compensation Laws |
employees eligible for benefits under workers compensation laws give up their common law right to sue the employer |
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when employees are not covered by workers compensations laws what 2 recommendations should brokerages suggest? |
-clients should purchase employers liability coverage -Clients should enroll staff in workers compensation plans |
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identify extent of coverage provided by cgls for attached machinery |
CGLS will insure losses arising from use of attached machinery while at the site of use for operation |
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when is coverage provided for owned watercraft |
cgls insure losses arising from owned watercraft while ashore on owned or rented premises |
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what limitations of coverage apply to non-owned watercraft |
-non owned watercraft must be less than 26 feet in length - can not be used for carrying passengers or property for charge |
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your client is a roofing contractor installing a new roof on a school that is being built. the roofing jobs is valued at $200,000.00. if this work causes damage to this new school and its contents, what limitation would their cgl impose? |
CGL would not respond to pay for damage caused to work done by the client. in this loss their is no coverage for the $200,000.00 roofing job. |
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what does the broad form completed operations endorsement cover |
this endorsement will amend exclusion to only remove coverage for that particular part of work that caused the loss or damage |
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what types of contractors are not affected by the exclusion relating to your work |
general contractors would not be affected by this exclusion because work done on behalf of insured by contractors is not excluded |
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What are 3 expenses not insure by cgls which business may incur when they become aware of deficiencies in their products |
- withdrawing product of work from market -recall expenses -inspection expenses |
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describe false imprisonment |
holding a person against their will without legal cause or justification |
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describe false arrest |
includes components of false imprisonment however also includes holding persons to turn them over to the police for prosecution |
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what 2 conditions must exist for a suit alleging malicious prosecution to succeed |
-victim arrested then later released -facts showed the person making allegation did not really believe that crime was being committed, and wast motivated by other improper motives |
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what is an example of a claim involving wrongful entry |
landlord use key to enter tenants apartment without providing proper notice to tenant |
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what are 2 situations that may lead to claims involving wrongful eviction |
-incorrect belief that tenant did not pay rent, then evicted -incorrect belief that tenant was violating condition of lease then evicted |
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what are 2 torts included in defamation |
-libel -slander |
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what is the difference between libel and slander |
libel is written defamation and slander is spoken defamation |
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what does publication of a wrong mean in relation to defamation |
improper statement must be communicated to a large part of the community. when only the person being defamed hears or reads the statement defamation has not occurred. |
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what defense is effective in libel and slander cases |
the only effective defense in libel and slander cases is the truth |
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how are payments made in coverage c medical payments |
payments made in this coverage are available without regard to fault |
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what are 3 types of medical expenses commonly covered |
-first aid expense -ambulance charges -x-ray expenses |
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how long do insureds have to claim under medial payments |
one year from the date of the accident |
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what are 3 reasons insureds provide this coverage (Medcial coverage) |
-possibility of severe injury reduced when immediate medical attention obtained -negligence is less likely to be asssesed by courts -no legal action attempting recovery of these expenses will occur |
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who are people not covered by coerage c- medical payments |
-insured -employees -person taking part in athletics |
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how are tenants found responsible for damage to rented premises (give examples) |
- tort liability ( tenant leaves coffee turned on overnight which causes fire damage to landlords building) -contractual liability (tenant assumes liability for glass in lease agreement) |
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does coverage d tenants legal liability cover tort & contractual liabilities |
no only covers tort liabilties |
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why do insureds require coverage d tenants legal liability |
coverage a bodily injury or property damage excludes coverage for any damage to property owned, rented or occupied by insureds. as a result of this exclusion, coverage d tenants legal liability is required to provide protection for damage caused to rented premises |
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when determining limits of coverage to purchase, what should insureds consider |
reconstruction costs of area tenant occupies should form the basis amount of insurance required |
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what are the perils insured by coverage d tenants legal liability |
-fire -explosion -smoke -leakage from fire protective equpiment |
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what are 3 common exclusions to all coverage sections |
-pollution liability -nuclear liability -war risks |
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what is the limit of protection provided by supplementary payments |
there is no limit of coverage found in protection provided by supplementary payments |
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are limits of coverage found in supplementary payments part of the amount of insurance or in addition to amount of insurance |
coverage provided y supplementary payments is in addition to the amount of insurance shown on the policy |
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state expenses insured by supplementary payments |
-insureds legal costs -costs of bonds to release attachments - expenses incurred during investigation and defenese -cost taxed against insured and interest incurred after entry of judgement during appeals |
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when paying interest on judgements what is the moment in time these interests calculations begin |
these interest payments begin after entry of initial jdugement |
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what are 3 factors affecting the premium charged for product liability exposures |
-type of product held for sale -annual volume of sales -jurisdictions where the products are sold |
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what are 2 factors affecting premiums charged for completed operations liability exposures |
-type of work insured performs - annual gross receipts |
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when will changes to existing businesses be insured by CGLS |
- when clients acquire or form new organizations during policy term -coverage is provided for 90 days from the date of acquisition or until policy expires what ever comes first |
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state the conditions imposed y the canadian currency clause |
all premiums are paid in canadian dollars and all losses are paid in canadian dollars |
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what benefits are enjoyed by the first named insured
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-cancellations requests can only be made by the first names insured -refunds are made to the first named nsureds -notice of termination is sent only to the first names insured |
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explain the condition premium audit |
insurers reserve right to review clients books and records to ensure proper premium was charged. premium on policy is deposit premium only |
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how is coverage affected by the separation of insureds , cross liability clause |
-when one insured causes injury of damage which is excluded by CGL, coverage may still be available by other insureds -when on insured breaches policy condition therby negating coverage, this breach may not affect other insureds |
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what are 3 components of the definition of products |
-product to be sold or distributed -containers and other equipment furnished along with product -warranties and representations made regarding product |
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what are 4 components of the definition of work |
-work done by insured -work done on behalf of insured by subcontractors -materials, parts and equipment used in connection with work - warranties and representations made regarding work |
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what are 3 factors that should be considered when advising your inured on property limits of coverage |
-amounts of previous awards incurred by similar businesses -inflation -existence of insurance |
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what types of claims have the longest tails |
losses involving laten bodily injury losses often have the longest tail |
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identify the 3 theories used by courts to determine when occurrences take place |
-exposure theory -exposure in resident theory -manifestation theory |
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describe 2 features of claims made liability policies |
-coverage is triggered by reporting losses during the policy term. this ensues only policy in effect when loss reported will respond to the loss -claims made policies contain retroactive dates. retroactive dates are the first day of the policy of the first claims made policy issued by insurer. these ensure claims made policy do not respond to losses occurring prior to retroactive date |
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what endorsement would you recommend to insureds when replacing an existing claims made policy with another |
extended reporting period endorsement should be purchased when replacing one claims made policy with another this would eliminate problems of potential coverage gaps |
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which policy is the extended reporting period endorsement attached |
this endorsement attaches to the expiring claims made policy |
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what are 2 advantages of umbrella policy |
-provides coverage when primary polices provide inadequate limits of coverage -provides coverage when the primary policy's exclude the losses |
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which policy responds first when losses are covered by both policy's |
underlying policy's respond first ( primary) |
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what is a SIR |
self insured retention |
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when is a sir applied to losses |
sirs are applied when underlying policies exclude loss and umbrella policy drops down to provide coverage |
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what are the 2 functions of SIRs |
-act as a deductible for losses not expected -encourages client to purchase underlying coverage for known exposures |
