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BICO® helps litigation guardian in $3.5M trial award

By John Rossos

BICO® was able to provide legal cost protection for a litigation guardian in Ontario, allowing their counsel, Graves & Richard Professional Corporation, the opportunity to achieve a significant trial victory on behalf of a catastrophically injured claimant.

In August 2006, Joseph Foniciello was injured when his motorcycle was struck from behind by a defendant driver as he was stopped awaiting the clearance of a road painting maintenance crew. Foniciello suffered a severe brain injury requiring an extended hospital stay and care for the remainder of his life. A settlement was reached with the defendant driver who had struck Foniciello and an additional claim for damages was sought from the maintenance company under contract by the municipality.

Foniciello’s sister agreed to act as his litigation guardian. If the claim was unsuccessful, she would be personally liable for any adverse costs on behalf of her brother, placing her savings at risk. With a trial on the issue of liability only a month away, her counsel sought and obtained $200,000 of BICO Legal Cost Protection™. The trial was heard in early 2014 and the jury apportioned a 60/40 split in liability between the defendant driver and the defendant construction company. There was no appeal.

A subsequent trial on the issue of damages was heard by judge alone over seven weeks in mid-2015. The decision, Foniciello, et al. v Bendall and Acculine, et al., 2016 ONSC 1119 (CanLII), was released Feb. 17 awarding Foniciello more than $3.5 million plus amounts awarded to the Family Law Act claimants.

I approached BICO seeking Legal Cost Protection on behalf of the litigation guardian of my client. The claim was fast moving towards a trial. The litigation guardian was assuming significant personal financial risk if we were unsuccessful in court.

With no realistic prospect of settling, BICO reviewed the case and offered Legal Cost Protection, which reduced the financial risk for my clients considerably. BICO’s indemnity also reduced my clients’ great anxiety in deciding to proceed to the trial, which we ultimately won.

Our loser-pays system misses the mark in situations like this where a litigation guardian with little personal gain to be had in a lawsuit faces potentially catastrophic cost consequences for advancing a claim on behalf of a seriously injured loved one. BICO Legal Cost Protection offers a very effective solution to this common dilemma.”

– Christopher Richard of Graves & Richard Professional Corporation

BICO is proud of the role it played assisting counsel to facilitate access to justice for Mr. Foniciello and his family ensuring that they obtained fair compensation for their losses.

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