How an experienced litigator got record punitive damages by trying the person, not the case
Sponsored content
Alfred Kwinter, founding partner and personal injury lawyer at Singer Kwinter Personal Injury Lawyers, lectures a lot on punitive damages — and for good reason. To date, Singer Kwinter is the only firm in Canada to have obtained a punitive damages award against an insurer on four separate occasions.
“I started off a lecture in New Brunswick by playing the song ‘To know him is to love him,’ because I put my client’s entire life before the jury,” says Kwinter. “They get to know my client so well, they feel they’ve grown up with him or her. In other words: to know somebody is to love them.”
While you can’t make your client what they’re not it serves you well to make them human, whether that’s by showcasing their redeemable qualities or the hardships they’ve experienced. You’ve got to cash in those chips at the biggest casino in town: the courthouse, Kwinter says. As a professor of trial practice at Osgoode Hall, he tells his students that what’s important in a trial, as any litigator knows, is the client.
“Lawyers don’t win and lose cases — clients do; you’re not trying the case — you’re trying the person,” he says. “You have to plan strategy, you have to know what you’re trying to get and you have to do a lot of investigating, but it’s instrumental to get a jury and the judge to see who the person really is.”
Plester v. Wawanesa Mutual Insurance Co., the case in which Kwinter obtained punitive damages that remain the highest award upheld against an insurance company by the Ontario Court of Appeal, is a good example of this approach.
In 2003, the Plester’s furniture store in Ingersoll, ON burned down during a terrible ice storm and the insurance company refused to pay on the basis of the fire marshal’s report that said the fire was intentionally started. Kwinter was the first lawyer involved, and as he started digging into the case arson just didn’t make sense. But coming up to trial, “the offer was zero, nothing, zippo.”
“I’m a litigator but I believe in keeping people out of court,” Kwinter says. “I like to settle cases reasonably whenever I can, but in this case they didn’t leave me a lot of options.”
Kwinter hired a forensic accountant to review the family’s finances, and all their accounts were in good shape. The business was doing well; they’d just leased a new vehicle; they invested in RRSPs; they had a sterling credit rating. There was nothing to show any kind of financial difficulty, which is the main reason for arson. Kwinter hired an ex-fire marshal whose opinion was that the fire started because the ice storm caused a blockage in the illuminated sign out front and backed up the electricity, which was consistent with a burned switch on the inside wall. On the stand, Kwinter pressed the current fire marshal on his conclusion and was able to reduce it to nothing but an opinion, and one that didn’t stand up against the other evidence.
On top of an in-depth investigation that left no stone unturned and the support of an instrumental legal assistant, Kwinter says the case came down to two factors: the insurance company had treated its insureds very badly, and the Plesters were simply a very likeable family. Juries are often shocked by the insurance company’s conduct, Kwinter notes, and during the trial “if you shake the tree, things start coming out.”
When Kwinter was cross-examining the insurance company’s forensic accountant, it was established that the insurance company had sent Kwinter’s client’s financial statements to the accountant and asked them to advise if the statements reflected a business in trouble. The very next day, before there was any response from the accountant the insurance company wrote the Plesters denying the claim. The denial letter from the insurance company arrived months after the fire and consisted of three lines, reading: “The investigation of your claim has been completed. The claim is denied. Trusting our position is clear.”
“No explanation, no reason, nothing,” says Kwinter. “I blew it up to poster size, put it on an easel and had it sitting in the corner for the duration of the trial.”
The judge told the jury if they found the insurance company had breached its duty of good faith and the plaintiffs were entitled to punitive damages, they had to list the reasons why. Those two letters were at the top of the list.
Another turning point in the case was the husband’s Business Man of the Year Award that he won the year before the fire, and was hanging in the store when it burned down. Kwinter had Plester speak about it on the stand — how much it meant to him, how proud he was of it — and he teared up discussing it. Is this a man that would torch his business, and lose an award that meant so much to him? Kwinter didn’t think so, and neither did the jury, and the insurance company’s case "basically unravelled during the trial.”
“Any experienced litigator knows you try to settle a case — who wants to risk a jury verdict at the end of the day? But not once was a single offer put on the table,” Kwinter says.
After a five-week trial, the jury awarded the Plesters $525,000 in punitive and aggravated damages in addition to their initial insurance benefits claim. On appeal, the Ontario Court of Appeal upheld the $350,000 in punitive damages, acknowledging it was a high amount but that the conduct of the insurance company was such that it was justified. The aggravated damages award of $175,000 was reduced to $50,000.
“Juries are often shocked by how the insurance companies conduct themselves,” Kwinter says. “I’ve been practicing for over 45 years and say to everybody, if insurance companies paid people what they’re entitled to I would have spent my career doing wills, divorces and real estate.”
In Whiten v. Pilot Insurance Co. the Supreme Court of Canada set $1M as the upper end of the range for punitive damages, but that’s small change for an insurance company, Kwinter notes. Punitive damages can’t be a cost of doing business, and as it stands “the conduct of these insurers doesn't appear to have changed one iota.”
“It can’t be a small fine like a speeding ticket: they owe people a duty. They’ve got to be worried about the punitive award beyond the stigma — that’s the big problem we face.”
Since 1974, the personal injury lawyers at Singer Kwinter have been dedicated to protecting the rights of accident victims and their families across Ontario and Canada. Learn more about the firm by visiting their website.
