Allegations that a motor vehicle accident arose from the failure of a company to institute appropriate training and screening mechanisms for drivers, trigger a duty to defend under the company's CGL policy.
The court's determination of whether all claims pled are covered by an automobile exclusion is fact driven. Where the pleadings give rise to the possibility that a plaintiff's injuries are caused by a corporation's policies and failure to screen drivers' driving records, that claim may be independent of the claim involving the use or operation of an automobile such that it falls outside the scope of the automobile exclusion.
Here is the case citation: Aviva Insurance Corporation of Canada v. Pizza Pizza Ltd. [2007] O.J. No. 4127. Ontario Superior Court of Justice. B.A. Allen J. October 29, 2007.
Here is a link to the decision.
This case was originally summarized by Sarah Swan and originally edited by David Pilley.
The insurer, Aviva Insurance Co. of Canada, brought an application seeking a declaration that Pizza Pizza was not entitled to coverage under a commercial general liability policy for a claim brought by a plaintiff pedestrian who was seriously injured when a Pizza Pizza delivery driver struck her while she was crossing the street. Pizza Pizza also brought an application seeking a declaration that it was entitled to coverage and that Aviva was obliged to defend it in the underlying action. Aviva sought a further declaration that ING Canada was obliged to defend Pizza Pizza under a term of a standard non-owned policy for claims raised against Pizza Pizza in the action.
The Court found that the pleadings gave rise to the possibility that the Plaintiff's injuries were caused by Pizza Pizza's delivery policy in failure to screen drivers' driving records and that claim was independent of the claim that involved the use or operation of an automobile. The Court found that Aviva did not meet its burden to show that all of the possibile scenarios pursuant to which the injury may have occurred were claims arising from the use of an automobile and none of those scenarios also involved a concurrent nonautomobile-related cause. The Court found that Aviva was required to defend Pizza Pizza in the action under its CGL policy on the nonautomobile-related claim and ING had a duty to defend Pizza Pizza under its non-owned policy on the automobile-related claims.
