Foreseeable equipment failure is not covered under an all-risk insurance policy

Successful appeal by the Insurer from a decision of the trial judge granting judgment to the Insured for its claim under a builder’s all-risk insurance policy in respect of construction of a railway tunnel.  The trial judge determined that the loss was the result of unforeseeable equipment damage.  The Court of Appeal determined that the trial judge erred in this finding, and that the damage to the equipment was foreseeable.  Since the equipment damage was forseeable the consequent damages were not covered by the policy.

Here is the citation: Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada [2007] O.J. No. 1077.   Ontario Court of Appeal - M. Rosenberg, E.A. Cronk and S.E. Lang JJ.A.   March 26, 2007. 

Here is a link to the decision.

 

 

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Owners and developers are entitled to insurance coverage under a wrap up policy

An Insurer has a duty to defend owners and developers sued by strata corporations for defective workmanship and resultant damage under a wrap-up insurance policy. The Court found that the decision in Swagger Construction Ltd v. ING Insurance Co. of Canada, 2005 BCSC 1269 applied only to general contractors, and ordered that GNAC provide insurance coverage and defend the owners and developers of a strata sued by the strata for water damage that occurred to the interior and exterior of a building.

Here is the citation: GCAN Insurance Co. v. Concord Pacific Group Inc. [2007] B.C.J. No. 443.  British Columbia Supreme Court - Garson J.   February 22, 2007. 

 Here is a link to the decision.  

 

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The jurisdiction where a contract is executed is the forum that should be used to resolve coverage issues

A representative Plaintiff from a class action in Illinois against the Insured brought a motion for a stay of proceedings in an Ontario proceeding. The Ontario proceeding was for a declaration that the Insurer was not required to defend the Insured against the representative Plaintiff’s complaint, nor indemnify the claim. The Court dismissed the motion on the basis that Ontario was the forum conveniens.

Here is the citation: ING Insurance Co. of Canada v. Health Craft Products Inc. [2007] O.J. No. 825.  Ontario Superior Court of Justice - A. Panet J.   March 8, 2007. 

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Alcoholics must disclose their condition when applying for insurance

Successful appeal by the Insurer from a decision of the trial judge finding that the estate of the deceased Insured was entitled to payment of $115,000 USD under a travel insurance policy purchased by the Insured prior to her death.  The insured was an alcoholic who did not disclose her alcoholism as a relevant health condition when she applied for the insurance.

This is the citation: Ouimet Estate v. Co-operators Life Insurance Co. [2007] B.C.J. No. 558.  British Columbia Court of Appeal - Ryan, Huddart and Lowry JJ.A.   March 20, 2007. 

 Here is a link to the decision.  

 

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An obligation to defend is not triggered by an insured providing notice of an expected claim

The Insurer successfully appealed a decision of the trial court finding that the Insurer had a duty to defend the Insured under a professional liability insurance policy.  The trial judge determined that the insurer had a duty to provide coverage to their insured for a claim, when the insured provided the insurer with notice that they expected a claim to be commenced against them as a result of a power shut down.  The Court of Appeal determined that under the policy an expectation of a claim was not sufficient to trigger coverage under the policy.

This is the citation: MWH International, Inc. v. Lumbermens Mutual Casualty Co. [2007] B.C.J. No. 559.  British Columbia Court of Appeal -  Ryan, Huddart and Lowry, JJ.A.   March 20, 2007. 

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People injured in automobile accidents in British Columbia may be entitled to British Columbia's statutory benefits regardless of the conditions contained in their insurance policy.

A person injured in British Columbia and insured through an out of province automobile insurance policy may be entittled to British Columbia's statotory accident benefits.  The key issue in determining the extent of benefits available to an insured will be whether the insurance company is a signatory to the Power of Attorney Undertakings - often referred to as the PAUs.  The PAUs prohibit an insurance company from raising an exclusion that would not be available had the polic of insurance been issued in British Columbia.  Exclusion has been interpreted broadly and may have the effect of increasing policy limits and writing in coverage that is not contained in the out of province insurance policy.  Consideration should be given to the jurisdiction in which the action to determine the extent of the insured's entitlement to benefits is made.

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The intentional or criminal act exclusion clause in a homeowners insurance contract excludes coverage to an act or omission that causes harm that is criminal in nature. Intent is not necessary.

The Court of Appeal held that where an Insured was convicted of criminal negligence causing harm, the exclusion in the homeowners policy for damages caused by intentional or criminal acts applied even without proof of intention to cause the injury or damage, so long as the act or omission that caused the harm was criminal in nature.

Here is the citation: R.E. v. Wawanesa Mutual Insurance Co.  [2007] O.J. No. 482.  Ontario Court of Appeal.  S. Borins, R.P. Armstrong and S.E. Lang JJ.A.  February 13, 2007.

Here is a link to the decision: www.canlii.org/en/on/onca/doc/2007/2007onca92/2007onca92.html

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An election to proceed with a civil action can void entitlement to workers compensation benefits

Successful appeal by the Insured from a decision of the trial judge finding that he was not entitled to long-term disability ("LTD") benefits from the Insurer because he had elected to proceed with a civil action.

Here is the citation: Richer v. Manulife Financial [2007] O.J. No. 110.  Ontario Court of Appeal - S. Borins, J.C. MacPherson and R.G. Juriansz JJ.A.   March 27, 2007.

Here is a link to the decision: www.canlii.org/en/on/onca/doc/2007/2007onca214/2007onca214.html

 

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An injured party can obtain funds directly from the negligent party's insurer pursuant to section 132 if the Insurance Act, even if the insured has been denied insurance coverage

The Plaintiffs were granted summary judgment pursuant to s. 132 of the Insurance Act against the Insurer who denied coverage under a CGL policy for a claim against a general contractor who was found to have supplied a defective dewatering system which caused damage to property owned by third parties.

Here is the citation: York Region Condominium Corp. No. 772 v. Lombard Canada Ltd. [2007] O.J. No. 534 Ontario Superior Court of Justice.  J.M. Wilson J.   February 13, 2007.

Here is a link to the decision: www.canlii.org/en/on/onsc/doc/2007/2007canlii3885/2007canlii3885.html

 

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