CAROLYN ANNE MEGYESI v. KATHERINE TWEEDIE, 2003 ABQB 274

Megyesi v. Dea, 2003 ABQB 274 Date: 2003 03 21 Action No. 0203 04178 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: CAROLYN ANNE MEGYESI AND KATHERINE TWEEDIE Plaintiffs - and - JAMES DEA AND MAUREEN DEA Defendants _______________________________________________________ MEMORANDUM OF DECISION of M. FUNDUK , Master in Chambers _______________________________________________________ APPEARANCES: P.J. Phelan for the Plaintiff G. T. Lund Parlee McLaws LLP for the Defendant

[ 1 ] This is an application by the Defendants to set aside the noting in default. [ 2 ] This is a motor vehicle negligence lawsuit. One Defendant is the owner of the offending vehicle and the other the driver. Liability is not an issue. The fault is solely that of the defendant driver. The accident was a low impact collision. [ 3 ] The accident happened in September 2001 and the lawsuit was started in February 2002. There is no evidence whether the Defendants had told their insurer of the accident. [ 4 ] On February 4, 2002 Mr.

Phelan wrote to the insurer giving it notice that a claim was being made, that he was getting medical reports and would give copies to the insurer if it agreed to pay for the costs. [ 5 ] On February 28 the lawsuit was started. On March 1 st , Mr. Phelan sent the insurer a dental chart and a copy of the statement of claim. He said that he was having the statement of claim served on the Defendants, that a statement of defence was not required “ at this time ” and that ample written notice would be given if the situation changed. [ 6 ] There were communications between Mr.

Phelan and the insurer for about eight months without a resolution. [ 7 ] On October 28, 2002 Mr. Phelan wrote to the insurer as follows: Further to our letter dated October 11 th , 2002, it seems your principal is unwilling or unable to provide you with instructions to settle this claim. Should we fail to receive a response to our settlement proposals by November 13 th , 2002, we will require a Statement of Defence from your solicitors no later than November 20, 2002, failing which we will take the next step and note in default. The insurer ’ s adjuster says that he then spoke to Mr.

Phelan and told him that he would “ try to meet ” the deadline. I do not understand that. How long would it take to do a written report and pass the file to the lawyer. The lawyer is not in some undisclosed location in the Amazon rain forest. The addresses of the insurer and the lawyer are about a block apart. [ 8 ] Notwithstanding the November 20 deadline the Defendants were not noted in default until November 28 so the Defendants had an extra eight days after the deadline. [ 9 ] There is no evidence when the insurer retained the lawyer.

The adjuster says that he “ forgot ” to refer the file to the lawyer. [ 10 ] The present application was launched March 12 and returnable March 17. [ 11 ] The issue in the lawsuit is damages only. Each Plaintiff claims $75,000 general damages and special damages (mostly “ estimated) for $5,500 and the other for $4,500.

[ 12 ] I am satisfied that the insurer did intend to defend, limited to a damages only issue. The reason for the failure to defend is not acceptable but that is not necessarily fatal given (

a) the parties had been negotiating, (

b) information was being exchanged, (

c) the time gap between the noting in default and this application is not too great, as far as lawsuits go, and, finally, (

d) this lawsuit has to go to trial to assess damages anyway. [ 13 ] The Defendants do not have to show an overwhelming case today for a damages issue. There is sufficient evidence before me to raise a legitimate issue about damages, especially since general damages are by their very nature unquantified, that is, not capable of mathematical precision. [ 14 ] This lawsuit has to go to trial regardless, to determine damages. The real issue on this application, as Mr.

Lund for the Defendants puts it, is whether the lawsuit goes to trial without the Defendants being able to do discoveries of the Plaintiffs, oral and documentary, as to their injuries and possible Rule 217 medical examinations. [ 15 ] Where the nature of a plaintiff ’ s claim is not such to let her enter default judgment she has to go to assessment even though the defendant is noted in default. But the defendant still has the right to “ controvert ” the amount of damages: Sulef v.

Parkin , (1966) 1966 CanLII 638 (AB CA) , 57 W.W.R. 236 (Alta.S.C.A.D.) . [ 16 ] As the Defendants have the right to “ controvert ” the amount of the damages the Plaintiffs want them to be able to “ controvert ” at the trial only. In other words, no discoveries and no medical examinations. [ 17 ] Despite the adjuster ’ s apparent memory problem it is appropriate to let the Defendants defend limited to a damages issue only. [ 18 ] Noting in default is set aside on the following terms: 1.

A statement of defence limited to damages only will be delivered within 7 days after the formal order from this decision is entered. 2. The Plaintiffs will have full solicitor and client costs for (

a) the noting in default and (b), all the costs associated with this application, regardless of the retainer agreement between the Plaintiffs and Mr. Phelan. I intend that Mr. Phelan gets full compensation for what is now for him lost time. [ 19 ] The costs will be paid within 15 days of agreement between counsel as to amount or taxation, whichever occurs. HEARD on the 17 th day of March, 2003. DATED at Edmonton, Alberta this 21 st day of March, 2003. __________________________ M. FUNDUK M.C. C.Q.B.A.