After man falls from scaffold, dies, insurer ordered to pay

A court has ordered local insurance provider Furness Anchorage General Insurance Ltd to pay a little over $300,000, representing sums Mecalfab Ltd had to expend to stave off a levy by the estate of a man killed on a jobsite in 2010.

Justice Frank Seepersad made the order in a judgment delivered on Monday.

Mecalfab filed a claim against Furness Anchorage to recover the payment it made to the estate of one of its employees, Kevin Randy Dabreau, who fell to his death on a jobsite on April 29, 2010.

Furness Anchorage was Mecalfab’s insurers and had taken control of litigation involving the man’s estate. In 2017, a High Court judge ordered Mecalfab to pay Dabreau’s estate damages of $221,500. Mecalfab had also filed a claim against its subcontractor which was also ordered to satisfy any judgment obtained.

When Darbreau’s estate demanded payment of the court-ordered damages, Furness Anchorage instructed its attorneys to deny liability for the debt, asserting that the contractor was liable to pay.

As a result of the wrangling, Dabreau’s estate filed a writ of execution and levied on the company on September 6, 2018, despite an attempt to get an injunction to stop it.

Mecalfab paid Dabreau’s estate and filed another action to recover the costs of the levy from Furness Anchorage, complaining that its business operations were disrupted because of the insurer's failure to abide by the policy agreement.

In its lawsuit, Mecalfab sought funds to pay for the release of its goods, money to pay its employees and a custom’s broker as well as to buy new ASYCUDA Customs software, which was on one of the computers seized in the levy.

In its defence, Furness Anchorage said the liability to indemnify Mecalfab was absolved when the subcontractor was found liable, but still tried to assist, although it acted unilaterally when it took action against the subcontractor.

Seepersad said Furness Anchorage, in the first action, “seemingly accepted its liability under the policy of insurance and by exercising its right of subrogation, by taking control of the litigation against the state, accepted it would be liable to pay an award ordered in accordance with the policy of insurance."

He said the order on the ancillary claim which found the contractor liable for payment “did not and could not absolve” Furness Anchorage of its obligation to Mecalfab, finding that the insurer “breached the policy of insurance when it refused to indemnify Mecalfab.”

He was also critical of what he called “the tendency to engage in protracted and overtly technical, disingenuous and dilatory litigation.”

His order was for Furness Anchorage to pay $274,402, which it paid to Dabreau’s estate, as well as $50,533.13 for the breach of the policy.

Costs were also ordered and pre-judgment interest will accrue at a rate of 2.5 per cent from September 6, 2018 to Monday’s date. Interest will also accrue on the judgment sum from the date of Seepersad’s judgment until payment, at the statutory rate of interest.

Furness Anchorage was given a 28-day stay of the court’s orders.

Mecalfab was represented by attorneys Ravindra Nanga and Alana Bissessar. Keston McQuilkin and Nalini Jagnarine appeared for Furness Anchorage.