Saskatchewan Court Awards Record-Breaking Damages Award to Injured Worker

April 19, 2013
In
1,623 comments

In Branco v American Home Assurance Company, 2013 SKQB 98 (CanLII) a Saskatchewan court awarded $4.95 million (including $4.5 million in punitive damages) to an injured worker. Justice Acton found that the record-breaking punitive damages award was justified due to the “reprehensible” and “abhorrent” conduct of the insurers (AIG and Zurich).

Background

The plaintiff, Branco, was a 62 year old Canadian citizen who immigrated to Canada from Portugal. In 1997, he began employment with Kumtor Operating Company (“Kumtor”), in Kyrgyzstan.  Kumtor was a subsidiary of a Saskatchewan company. Branco was living in Portugal and would go to Kyrgyzstan for shift work. By all accounts, he was an excellent employee with a perfect attendance record. 

In December 1999, Branco dropped a steel plate on his foot while working. He continued to work for the remainder of his 28 day shift and then returned to Portugal.  He re-injured his foot in February, 2000 following his return to Kyrgyzstan for his next shift. He returned to Kyrgyzstan in June 2000 but reported the injury to the company as he remained unable to work. Kumtor then opened a worker’s compensation claim with AIG and a long term disability claim with Zurich.

As a result of the injury, Branco was left totally disabled.  Unable to secure regular monthly payments from either AIG or Zurich, Branco filed lawsuits against both the following year.

Aggravated Damages and Damages for Mental Distress

Over time, AIG made some monthly disability payments to Branco, though it failed to do so in a prompt and reasonable manner. The payments were cut off entirely in December 2004 despite a policy requiring them to be made until Branco was either able to go back to work or reached the age of 65. The payments were not reinstated until so ordered by Justice Acton.

The evidence showed that although Zurich accepted early on in the claims process that Branco was totally disabled, it did not make any payments to him until the spring of 2009 – almost 10 years after his injury. Although Zurich eventually made payments, and continued to make them after 2009, Branco suffered severe mental distress and financial strain during that time and as a result of their actions.

Justice Acton described AIG’s conduct as “malicious” and undertaken “to create undue hardship on Branco to force him into accepting an extremely low offer of settlement.”  He similarly found that Zurich’s 10 year delay amounted to a failure to honour its duty of good faith and fair dealing, in a manner he described as “reprehensible” and  “egregious”.  In the result, Branco was awarded aggravated damages from AIG and Zurich in the amounts of $150,000 and $300,000, respectively.

Punitive Damages Award

Taking a variety of factors into account, Justice Acton ordered that AIG and Zurich pay $1 million and $3 million, respectively, to Branco in punitive damages. Justice Action’s comments in this regard are striking:

. . .  It is hoped that this award will gain the attention of the insurance industry. The industry must recognize the destruction and devastation that their actions cause in failing to honour their contractual policy commitments to the individuals insured.

Both AIG and Zurich failed to deal with Branco’s claim in good faith. Each tried to take advantage of Branco’s economic vulnerability to gain leverage in negotiating a settlement. The fact that Branco was able to continue to withstand this pressure for so many years from two different fronts is truly remarkable and almost superhuman, even though his resistance may have resulted in irreparable mental distress which may last for the remainder of his lifetime.

While Justice Acton’s words send a strong message to insurers, employers should also take heed.  Employment litigation similarly tends to involve disputes between economically imbalanced parties and employers risk serious exposure if their conduct draws the ire of the courts. Indeed, in recent years, Ontario courts have awarded increasingly high punitive damages awards against employers’ whose conduct was found to be particularly reprehensible (see for example, our November 2012 discussion of the Walmart case).

It is worth noting that Appellate courts in Canada have typically been critical of high punitive damages awards, often reducing them or overturning them altogether. The Walmart decision is currently under appeal, and it is most likely that the Branco decision will be appealed as well.

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