Davies v State Farm, 2022 ABKB 777

Court of King’s Bench of Alberta Citation: Davies v State Farm, 2022 ABKB 777 Date: 20221123 Docket: 2201 06608 Registry: Calgary Between: Donna Marie Davies Plaintiff - and - State Farm Insurance Company Defendant _______________________________________________________ Reasons for Decision of Applications Judge J.T. Prowse _____________________________________________________ [ 1 ] The plaintiff Ms. Davies was a 57 year pharmaceutical representative sitting in her home when, on April 22, 2020, a car crashed into the home.

The collision was a violent one, resulting in approximately $250,000 in damage to her home. [ 2 ] The physical injuries to Ms. Davies were minor, but she was traumatized. She asserts a claim for post traumatic stress injury. Her claim contains a large component for lost wages, as she says her PTSD prevents her from being employed. [ 3 ] Ms.

Davies applies for an advance payment from the driver’s insurer, State Farm. [ 4 ] The legislative background for advance payments is set out in the leading case, Shannon v. 1610635 Alberta Inc. , 2014 ABCA 393 , 2014 CarswellAlta 2134. [ 5 ] The first topic I will address is the onus of proof. Shannon says this about the onus of proof, at para 22 of the decision: I cannot see why the defendant should pay the plaintiff $X before trial, if the defendant is probably not liable to the plaintiff, or is probably not liable for so big a sum.

For example, where there is a 60% probability that the defendant was not negligent. Or a 70% probability that the plaintiff's inability to work was caused by something unrelated to the accident. Or a 75% probability that the advance

payment suggested is bigger than the plaintiff's loss. The plaintiff should show that the defendant asked to advance funds is probably liable to the plaintiff for the amount sought or more. [ 6 ] It appears probable that Ms. Davies suffers from a trauma-related disorder as a result of the accident in April of 2020. This is the conclusion of the psychiatrist who examined her at the request of her counsel. [ 7 ] More difficult is the question of whether her current state of unemployment is due to the accident. [ 8 ] Following the accident, Ms.

Davies sought no treatment for the physical injuries she suffered, which she described as bruising to the arms and legs and cuts to the face. [ 9 ] She did not miss any work, but she was let go from her work a few months later. [ 10 ] She says her performance at work had not suffered and she was not given any negative feedback about her performance at work. No reason was given for her dismissal.

She has not worked since. [ 11 ] Her family physician says she is unable to work due to PTSD arising from the accident, but, with respect, this is not his field of expertise. [ 12 ] The psychiatrist retained by her counsel, who found that she probably suffers from a trauma-related disorder as a result of the accident, says this about the effect of that disorder on her employability: At this point, it is difficult to formalize and kind of prognosis with respect to Ms.

Davies’ psychiatric status because of the lack of clarity around the validity and extent and severity of her symptoms and any correlated impairments that may exist. Similarly, it is also difficult to provide any confident opinion with respect to any disabilities or limitations that have arisen as a result of her symptoms for the reasons described above. Additional assessment by way of a formal psychovocational assessment may further address these concerns. [ 13 ] As a result, while it is probable that Ms.

Davies has suffered general damages as a result of the accident, the evidence to date does not establish that it is probable she has suffered a loss of income. It is open for her to re-apply in the future with a psychovocational assessment in that regard. [ 14 ] The second topic I will address is Ms. Davies current resources. This is addressed in Shannon as follows: 23 A second requirement arises from the goal of the legislation. The aim of an advance payment is relieving hardship.

If the plaintiff is unlikely to go without necessities or something analogous, or is likely able to carry on with his or her claim for damages, then in the interval he or she should finance the suit himself or herself. (My point here is degree of likelihood, not an exhaustive list of grounds.) 24 One must look at what resources the plaintiff can access. The question is whether the advance payment is the only realistic way that the plaintiff can maintain himself or herself and promote his or her claim. [ 15 ] There is no doubt that, due to her unemployment (whatever its cause), Ms. Davies is financially suffering.

Due to her unemployment she has placed a second mortgage on her home to pay off credit card expenses incurred to support herself. [ 16 ] There is no evidence that her claim against the other driver will collapse without an advance payment, but there is evidence that she is near the end of her financial means to provide for the necessities of life. [ 17 ] Having already resorted to her home equity via the second mortgage to support herself I am unwilling to require that she sell her home to continue to fund living expenses pending her claim coming to trial.

My reaction might have been different if she had a large equity position in her home to which she had not already turned. Conclusion [ 18 ] I think it is probable that Ms. Davies will recover at least $30,000 with respect to general damages in the underlying tort claim, and so I direct that State Farm pay Ms. Davies that amount, at this time, as an advance pursuant to Alberta's Fair Practices Regulation under

section 581 of the Insurance Act , RSA 2000, c I-3 . Costs [ 19 ] If the parties cannot agree to the costs outcome of this decision they may make written submissions in that regard. Heard on the 21 st day of November, 2022. Dated at the City of Calgary, Alberta this 23 rd day of November, 2022.

J.T. Prowse A.J.C.K.B.A. Appearances: Jackie R. Halpern, K.C. McLeod Law LLP for the Plaintiff Ted Spyracopoulos Brownlee LLP for the Defendant