Ken Murphy Enterprises Ltd. v. Commercial Union Assurance Co. of Canada [2005] N.S.J. No. 114 Nova Scotia Court of Appeal

Vacating property insured by a policy of fire insurance constitutes a material change in the risk insured by the policy. Failure to notify the insurer will void the policy. If the insured’s insurance broker is advised that the property has been vacated, the insurance broker has an obligation to advise the insured that the property may no longer be insured by the policy. However, if the insured was aware that vacating the property could void his insurance, the insurance broker will not be liable for any damages resulting from an uninsured loss.

Continue Reading...

Sommerfield v. Lombard Insurance Group [2005] O.J. No. 1131 Ontario Superior Court of Justice

A former student of Upper Canada College commenced an action against four teachers alleging sexual assault. In addition, the student alleged that each of the teachers knew or ought to have known that the Plaintiff was being abused by the other teachers, and that each of the teachers failed to take any adequate steps to prevent or stop that abuse. The teachers named in the Statement of Claim applied for a declaration to have the allegations made against them defended pursuant to Upper Canada College’s policy of insurance. The court determined that despite a section in the policy which excluded coverage for bodily injury caused intentionally by or at the direction of the insured, the allegations of failing to take any adequate steps to prevent or stop the sexual abuse of the student constituted an independent tort, and the teachers were entitled to coverage under Upper Canada College’s policy of insurance to defend the allegations made against them. However, given the nature of the excluded allegations the insurer was only responsible for 20% of the teacher’s defence costs.

Continue Reading...

Ultramar Ltd. v. Rancur Petroleum Services Ltd. [2005] N.J. No. 98 Newfoundland and Labrador Supreme Court - Trial Division

An insurer who covers a previous loss is estopped from denying coverage for a second similar loss, even if an exclusion exists in the policy which would take the loss outside of coverage.

Continue Reading...

Gagnon v. Black [2005] N.B.J. No. 124 New Brunswick Court of Queen's Bench Trial Division

In a case where an injured party in New Brunswick has been overcompensated for past loss of income as a result of receiving section B Loss of Income Benefits, the trial judge is obligated to reduce the amount payable for non-pecuniary damages to account for the over-compensation in applying the release provisions of section 263(2) of the New Brunswick Insurance Act.

Continue Reading...

Kerkowich v. Wawanesa Mutual Insurance Co. [2005] M.J. No. 67 Manitoba Court of Appeal

The Manitoba Court of Appeal, in dismissing the Plaintiff’s appeal, held that the trial judge had correctly applied the law with respect to the Insurer’s onus to prove arson.

Continue Reading...

Anderson v. Sun Life Assurance Co. of Canada [2005] S.J. No. 230 Saskatchewan Court of Queen's Bench

When a person applies for life insurance, and is then diagnosed with cancer after she has applied for the policy but before the policy has been delivered and paid for, the potential insured has an obligation to advise the insurer that she has been diagnosed with cancer. Failure to advise the insurer will void the policy.

Continue Reading...

Kohanski v. St. Paul Guarantee Insurance Co. [2005] O.J. No. 5882 Ontario Superior Court of Justice

The ‘insured v. insured’ exclusion clause contained in a Directors and Officers Liability Insurance policy generally excludes coverage to officers when a claim is brought against them by the Corporation named in the policy. Despite the clear wording of the clause, the clause will not exclude coverage to an officer when the officer and the Corporation are adverse in interest.

Continue Reading...

Hua v. Optimum West Insurance Co. [2005] B.C.J. No. 412 British Columbia Court of Appeal

The Court of Appeal dismissed the appeal of the insurer who was ordered to pay the replacement cost of a house damaged by fire. This was despite the insured’s failure to comply with the requirement of the policy to repair or replace damaged buildings within 180 days because the replacement cost was found not to have been settled between the parties within the time allotted.

Continue Reading...

Conservation Council of New Brunswick Inc. v. Encon Group Inc. [2005] N.B.J. No. 109 New Brunswick Court of Queen's Bench Trial Division

The Defendant (the "Insured") in a defamation action applied for a Declaration that it was entitled to a defence under the terms of a Directors’ & Officers’ Liability policy (the "Encon Policy") and a Commercial General Liability policy (the "Co-Operators Policy"), and for a further Declaration that it was entitled to appoint its own counsel. The court held that Co-Operators had a duty to defend because some allegations in the pleadings fell within the realm of its duty to defend. The court further held that the Insured was entitled to appoint its own counsel at the expense of the Insurer.

Continue Reading...

4081471 Canada Inc. v. Dadswell Forster Insurance Services Ltd. [2005] A.J. No. 298 Alberta Provincial Court

The provincial court considered the issue of whether the Insurer was entitled to rely on an exclusion clause in a policy which excluded coverage for damage caused by vandalism while the dwelling was under construction or vacant. The provincial court held that the exclusion did not apply and gave judgment to the Plaintiffs.

Continue Reading...

Assiniboine Credit Union Ltd. v. Aviva Insurance Co. of Canada [2005] M.J. No. 61 Manitoba Court of Queen's Bench

The Manitoba Court of Queen’s Bench considered whether, based on the terms of a standard mortgage insurance clause, the Plaintiff Mortgagee was entitled to indemnification from the Insurer. The loss was clearly excluded under the policy. However, the court held that because the insurer failed to notify the Plaintiff Mortgagee of an alteration to the policy, as required by statute and the standard mortgage insurance clause, the Insurer was obligated to indemnify the Plaintiff Mortgagee for the loss sustained.

Continue Reading...

British Columbia v. Surrey School District No. 36 [2005] B.C.J. No. 364 British Columbia Court of Appeal

The Court of Appeal held that an arbitrator was correct in ruling that an insurer under a liability policy issued to the Board of School Trustees must indemnify the Board for costs it was "legally obligated to pay" for passing unconstitutional resolutions disapproving of books depicting children with same-sex parents. The definition of "wrongful act" under the policy was broad enough to cover the risk of damages for constitutional wrongs.

Continue Reading...

McVea (Guardian ad litem of) v. TB [2005] B.C.J. No. 363 British Columbia Court of Appeal

The Attorney General of B.C. was jointly and severally liable with the uninsured driver of a stolen vehicle for the damages awarded to the deceased’s family for the wrongful death of an innocent motorist. The third-party ICBC was not required to contribute any portion of the damages.

Continue Reading...