Without prejudice letters from an adjuster to a third party who has threatened, but not commenced an action against an insured, can confirm a cause of action and extend the limitation period, if a reasonable person objectively viewing the letters would conclude that the insurer was going to settle the threatened personal injury claim, or at the very least, that the only issue in dispute would be the quantum of the claim

Korecki v. Duong, [2004] B.C.J. No. 551, British Columbia Supreme Court

On July 14, 2000, the Plaintiff was involved in a motor vehicle accident when a vehicle driven by the Defendant crossed the centre line of the road and collided with his vehicle. In August of 2000, the Plaintiff retained a lawyer who wrote to the Defendant’s insurance company advising of his retainer. On August 29, 2000, the adjuster responded with a without prejudice letter that noted as follows:

For the purposes of settlement discussions, the writer is prepared to deal with your clients claim on the basis that my insured would be found to be fully liable in this accident. We reserve the right to alter this position should settlement negotiations break down.

The adjuster next wrote to the plaintiff’s lawyer 18 months later on February 13, 2002. This letter was also marked “without prejudice” and noted as follows:

This will confirm that the insurer is prepared to offer Mr. Korecki [the Plaintiff] $7,500 as full and final settlement of his claim. … Should Mr. Korecki find this amount unacceptable, then the insurer will review whatever information is made available after the examination for discovery. They will reconsider their position at that time.

The Plaintiff’s lawyer did not respond to the letter and commenced an action on July 19, 2002, five days after the expiration of the limitation period. The Defendant brought a summary trial application for an Order dismissing the Plaintiff’s action on the basis that it was statute barred by operation of section 3(2)(a) of the Limitation Act. Warren J. determined that the Limitation Act did not bar the Plaintiff’s claim because the letters written by the Defendant’s insurer had confirmed the cause of action. The basis for this finding was that the letters, when read together, would lead a reasonable person to conclude that the insurer was going to settle the Plaintiff’s personal injury claim, or at the very least, that the only issue was the quantum, which could be determined by assessing the Plaintiff’s evidence after an Examination for Discovery. In these circumstances, Warren J. determined that the letters amounted to a confirmation of the cause of action and that the action was not barred pursuant to section 3(2)(a) of the Limitation Act.

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