IN THE SUPREME COURT OF BRITISH COLUMBIA THE LSBC CAPTIVE INSURANCE COMPANY PLAINTIFF NOTICE OF CIVIL CLAIM

Transcription

1 Form 1 (Rule 3-1(1)) No. Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN AND THE LSBC CAPTIVE INSURANCE COMPANY PLAINTIFF DEFENDANT NOTICE OF CIVIL CLAIM This action has been started by the Plaintiff for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must file a Response to Civil Claim in Form 2 in the above-named registry of this court within the time for Response to Civil Claim described below, and serve a copy of the filed Response to Civil Claim on the Plaintiff. If you intend to make a counterclaim, you or your lawyer must file a Response to Civil Claim in Form 2 and a Counterclaim in Form 3 in the above-named registry of this court within the time for Response to Civil Claim described below, and serve a copy of the filed Response to Civil Claim and Counterclaim on the Plaintiff and on any new parties named in the Counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below. TIME FOR RESPONSE TO CIVIL CLAIM

2 A response to civil claim must be filed and served on the Plaintiff, 2 if you were served with the Notice of Civil Claim anywhere in Canada, within 21 days after that service, if you were served with the Notice of Civil Claim anywhere in the United States of America, within 35 days after that service, (c) if you were served with the Notice of Civil Claim anywhere else, within 49 days after that that service, or (d) if the time for Response to Civil Claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFF Part 1: STATEMENT OF FACTS 1. The Plaintiff is the insurer of the Defendant under BC Lawyers Compulsory Professional Liability Insurance Policy Number LPL (the Policy ). The Policy was issued by the Law Society of British Columbia and provides its members with trust protection coverage ( TPC ) under Part B of the Policy for claims and potential claims reported during certain policy periods. The policy period for the Policy is January 1, 2012 to January 1, The Plaintiff is also the assignee of (the Claimant ). 2. The Defendant was at all material times a member of the Law Society of British Columbia and, as such, insured by the Plaintiff for TPC under the Policy. 3. TPC insures the Defendant, and each other member of the Law Society of British Columbia for claims arising from the misappropriation of money or property relating to the member's practice of law. 4. Under TPC the Plaintiff is obliged to pay on behalf of the Defendant proper claims of a client or others a sum equal to the value of money or property dishonestly misappropriated by the Defendant whilst acting as a lawyer in a fiduciary capacity. 5. On, 2012, the Plaintiff received notice under the 2012 Policy of a potential TPC claim against the Defendant by the Claimant.

3 3 6. The Plaintiff investigated the TPC claim and determined that the claim was properly payable by it to the Claimant as falling within the terms and conditions of coverage under the Policy. 7. On, 2012, the Plaintiff paid on behalf of the Defendant $ to the Claimant (the Settlement ). 8. The Settlement is, as a matter of contract under the TPC provisions of the Policy, to be repaid to the Plaintiff by the Defendant on demand pursuant to Condition 3.4 of the Policy which requires an insured member to reimburse the Plaintiff for any damages, claims expenses, reimbursement or indemnity paid by the Plaintiff in respect of a TPC claim on behalf of the insured member. 9. In addition, the Claimant, by virtue of the Settlement, assigned to the Plaintiff and to the Law Society of British Columbia all right, title, and interest in and to the subject matter of the Settlement including, inter alia, all of the Claimant s rights of action against the Defendant in respect of the dishonest misappropriation (the Assignment ). 10. Notice of the Settlement and of the Assignment was lawfully given by the Plaintiff to the Defendant on, 2011 along with demand for payment of and reimbursement of the Settlement by virtue of the provisions of the Policy and the Assignment. 11. Despite the Plaintiff s demand, the Defendant has refused or neglected to make payment of and reimbursement of the Settlement in whole or part to the Plaintiff. Part 2: RELIEF SOUGHT 1. The Plaintiff seeks $ plus court ordered interest and costs. Part 3: LEGAL BASIS 1. The Plaintiff as insurer of the Defendant as to the TPC provisions of the Policy is entitled to reimbursement as a matter of contract under Condition 3.4 that states: 3. REIMBURSEMENT 3.4. If we pay damages or claims expenses on behalf of you or any other Insured pursuant to Part B of this policy:

4 the Individual Insured will reimburse us for all such amounts; and if any other Insured receives a benefit from the error, that Insured will reimburse us for the portion of the damages paid that is commensurate with the amount of the benefit. 2. The Plaintiff has properly paid the Claimant s claim against the Defendant for misappropriation of funds held by the Defendant in a fiduciary capacity and has given notice of the Settlement and Assignment to the Defendant. 3. The Defendant has refused or neglected to pay the Settlement to the Plaintiff or any part thereof and thus the Plaintiff is entitled to judgment for the Settlement plus interest from, Plaintiff s address for service: Fifth Floor, 845 Cambie Street, Vancouver, BC, V6B 4Z9 Fax number address for service (if any): (604) address for service (if any): Place of trial: Vancouver, BC The address of the registry is: 800 Smithe Street, Vancouver, BC Dated: Signature of Margrett George lawyer for Plaintiff Rule 7-1(1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, prepare a list of documents in Form 22 that lists (i) all documents that are or have been in the party s possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and

5 5 (ii) all other documents to which the party intends to refer at trial, and serve the list on all parties of record. APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: The Plaintiff seeks reimbursement of the amounts paid to the TPC Claimants on behalf of the Defendant. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: A personal injury arising out of: [ ] a motor vehicle accident [ ] medical malpractice [ ] another cause A dispute concerning: [ ] contaminated sites [ ] construction defects [ ] real property (real estate) [ ] personal property [ ] the provision of goods or services or other general commercial matters [ ] investment losses [ ] the lending of money [ ] an employment relationship [ ] a will or other issues concerning the probate of an estate [x] a matter not listed here

6 6 Part 3: THIS CLAIM INVOLVES: [ ] a class action [ ] maritime law [ ] aboriginal law [ ] constitutional law [ ] conflict of laws [x] none of the above [ ] do not know Part 4: THIS NOTICE OF CIVIL CLAIM is filed and delivered on behalf of the Plaintiff, the LSBC Captive Insurance Company by Margrett George, Barrister and Solicitor, of the Lawyers Insurance Fund, The Law Society of British Columbia, whose place of business and address for delivery is Fifth Floor, 845 Cambie Street, Vancouver, BC, V6B 4Z9. Telephone: (604) Fax: (604) Ref