On a summary trial a judge should not decide issues of fact based on evidence capable of supporting more than one inference.

Appeal by Fidelity Insurer from summary judgment in favor of the Insured was allowed. The motion judge should not have decided issues of fact based on evidence that was capable of supporting more than one inference. Genuine issues remained for trial. However, since the interpretation of the bond was a contentious issue and the trial judge's interpretation would no doubt end up being appealed, the Court of Appeal interpreted the fidelity bond in order to assist the trial judge with the task of applying the bond to the evidence before him or her.

Iroquais Falls Community Credit Union Ltd. (Liquidator of) v. Co-operators General Insurance Co., [2009] O.J. No. 1783, May 4, 2009, Ontario Court of Appeal, D.H. Doherty, E.A. Cronk and R.G. Juriansz JJ.A.

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An insured is entitled to a defence under a policy of insurance if part of the claim is covered by an insurance policy.

An application by the Insured for a declaration that the Insurer be required to fund defence of the Insured in action brought against it was allowed where the Court held that since part of the claim was covered by the policy, the Insurer’s duty to defend was engaged.

Beaverdam Pools Ltd. v. Wawanesa Mutual Insurance Co., [2009] N.B.J. No. 120, May 6, 2009, New Brunswick Court of Queen's Bench, P.C. Garnett J.

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In assessing a proof of loss claim the court must assess the credibility of the insured.

The appeal by an Insurer from judgement requiring it to pay a claim by the Insured in the amount of $4,534,345 in losses associated with fire damage was allowed in part. The trial judge did not err in refusing to allow the Insurer to rely on non-disclosure by the Insured of financial difficulties to void the policy because the Insurer cannot argue that the non-disclosed facts are material if it fails to make the proper inquiries. However, the trial judge’s failure to address the Insured’s credibility in assessing proof of loss was a reversible error.

Sagl v. Cosborn, Griffiths & Brandhm Insurance Brokers Ltd., [2009] O.J. No. 1879, May 8, 2009, Ontario Court of Appeal, S.E. Lang, R.G. Juriansz and G.J. Epstein JJ.A.

 

 

 

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Pleadings that are emended to include allegations of negligence may create a duty to defend the entire claim under a contract of insurance.

This was an appeal by an insurer from a decision finding that it had a duty to defend an action in its entirety after the pleadings were amended to include allegations of negligence that the insurer argued might not give rise to liability under the policy. The Court of Appeal held that the correct test was whether the true nature or substance of the claim was one that could give rise to liability within the policy coverage and dismissed the appeal.

ING Insurance Co. v. SREIT (Park West Centre) Ltd., [2009] N.S.J. No. 158, April 15, 2009, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., J.E. Saunders and M.J. Hamilton JJ.A.

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Damages incurred during a drive by shooting are not recoverable under automobile insurance

The Appeal by an Insured from a decision holding that injuries caused by a drive-by shooting do not fall within the scope of coverage provided by the Family Protection Coverage Endorsement (the “Endorsement”), which implements statutorily required coverage for bodily injury caused by uninsured or underinsured motorists, was dismissed. The Court held that the endorsement did not apply because the shooting was a severable intervening event from the use or operation of the motor vehicle.

Russo v. John Doe, [2009] O.J. No. 1481, April 15, 2009, Ontario Court of Appeal, K.M. Weiler, R.G. Juriansz and J.L. MacFarland JJ.A.

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Concealing a leased vehicle could void the insurance.

The client of an Insured did not conceal her vehicle from the Insurer when she parked it several blocks from her residence in order to avoid repossession.

MFI Mobil Finance (2006) Inc. v. Insurance Corp. of British Columbia, [2009] B.C.J. No. 1009, April 14, 2009, British Columbia Provincial Court, S.D. Dley Prov. Ct. J.

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An insurer may not owe a broker a duty to properly underwrite and insure the broker's clients

The appeal by an Insurer from a finding that it had a duty of care to a broker to properly underwrite and deal with the application for insurance was allowed where the Court held that nothing in the transaction warranted the creation of a new duty of care owed by the Insurer to a broker applying for insurance on behalf of its clients.

Drader v. Sebastian, [2009] S.J. No. 214, April 20, 2009, Saskatchewan Court of Appeal, W.J. Vancise, J.G. Lane and D.C. Hunter JJ.A.

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A release executed in favour of one party may bar an action against all potential parties

The application to stay the main action and the Third Party action on the basis of a release executed by the Plaintiff in favour of the Third Party was allowed where the Court held that the Third Party claim must be stayed because the Third Party was entitled to rely on the release and that the main action must be stayed because the Defendant had legitimate claims over against the Third Party and it would be unfair to preclude those claims on the basis of the release executed in favour of the Third Party without consideration for the Defendant.

1562860 Ontario Ltd. (c.o.b. Shoeless Joe's) v. Insurance Portfolio Inc. , [2009] O.J. No. 1537, April 1, 2009, Ontario Superior Court of Justice, T.A. Bielby J.

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If there is a conflict of interest between an insurer and an insured, the insured may be entitled to counsel of his or her choice in defending an action commenced against him or her.

An application by the Insured for an order declaring that the Insurer defend and indemnify him and that he be permitted to appoint counsel of his choice was allowed. The Court found that the issue of the Insurer’s duty to defend and indemnify was res judicata, having already been decided in favour of the Insured on a summary judgment motion. The Insured was also allowed his choice of independent counsel, to be paid for by the Insurer, on the basis that there was a conflict of interest between the Insured and Insurer.

Coakley v. Allstate Insurance Co. of Canada, [2009] O.J. No. 1832, May 5, 2009, Ontario Superior Court of Justice, T.P. Herman J.

 

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