British Columbia Insurance Blog : Canada Insurance Lawyer & Attorney : Michael Thomas of Harper Grey Law Firm : British Columbia, Vancouver

Two separate actions were heard together in this case. The Builder ("Aspen") sued for the balance due on a construction contract and the homeowner counterclaimed for defective workmanship and materials. Kingsway General Insurance Company, the homeowner warranty provider ("the Insurer"), sought indemnification from the builder for any sums it was ordered to pay the homeowner under the warranty. The Builder gave notice it would not appear at trial and its claim against the homeowner was dismissed for want of prosecution.

The homeowners were awarded judgment against the Builder and costs in the first action, and recovered damages against the Insurer in the second action. The Insurer was entitled to recover those costs against the Builder.

Aspen Enterprises Ltd. (c.o.b. Aspen Homes) v. Quiding, [2008] B.C.J. No. 2755, October 21, 2008, British Columbia Supreme Court, L. Fenlon J.

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Claims against Insurer in negligence and breach of contract dismissed on a non-suit motion on the basis of the Insureds' failure to adduce evidence of the standard of care.

Tingley v. Wellington Insurance, [2009] N.S.J. No. 375, August 18, 2009, Nova Scotia Supreme Court, D. MacAdam J.

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As between the limitation period in an insurance policy and the limitation period set out in Section 22(1) of the Insurance Act of British Columbia, the limitation period in the policy prevails so long as it is not shorter than that prescribed by Section 22(1).

Colgur v. Manufacturers Life Insurance Co., [2009] B.C.J. No. 1644, August 17, 2009, British Columbia Supreme Court, C.E. Hinkson J.

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Court considered the Statement of Claim, the insurance policy, and a contract of indemnity in determining whether the Insurer had a duty to defend the Insureds in relation to a Third Party Notice.

Tarrabain v. Wawanesa Mutual Insurance Co., [2009] A.J. No. 912, May 4, 2009, Alberta Court of Queen's Bench, L.J. Smith J.

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Application by the insured for coverage under an all-risks policy allowed. Mould was found to be a risk covered under the policy and was not excluded from coverage by any of the provisions. The evidence supported the inference that the loss occurred during the policy period and not prior, as argued by the insurer.

Minox Equitities Ltd. v. Sovereign General Insurance Co., [2009] M.J. No. 280, July 21, 2009, Manitoba Court of Queen's Bench, D.P. Bryk J.

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The insureds' application for coverage under their policy for damage to their home during a flood was allowed. The insurer did not meet its onus of establishing that the claim fell within the exclusionary language of damage that occurred “before, during or after flood damage to the premises.” The insureds' claims for bad faith and mental distress were dismissed.

Langton v. Personal Insurance Co., [2009] A.J. No. 837, July 29, 2009, Alberta Court of Queen’s Bench, B.E.C. Romaine J.

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Appeal by insured from trial judgment finding that his claim for income benefits was statute barred and not awarding him post-judgment interest according to the Statutory Accident Benefits Schedule (SABS) was allowed. The amendment of the Statement of Defence did not constitute a refusal to pay an amount claimed within the meaning of s. 71(1) of the SABS  and therefore was not statute barred. With regard to post-judgment interest, section 68 of the SABS is not discretionary.

Close v. Dominion of Canada General Insurance Co., [2009] O.J. No. 3015, July 17, 2009, Ontario Court of Appeal, K.N. Feldman, J.M. Simmons and R.A. Blair JJ.A.

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The application by Lombard for an order compelling Zurich to defend and indemnify two defendants in a motor vehicle accident action was dismissed. The car involved in the accident was not covered by Zurich’s insurance policy because the policy required all vehicles be “described” in order to be insured and the car was not listed in the insured’s monthly report to Zurich.

Lombard Canada Ltd. v. Zurich Insurance Co., [2009] O.J. No. 3004, June 24, 2009, Ontario Superior Court of Justice, T.P. Herman J.

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Appeal from arbitrators decision regarding waiver and apportionment of fault dismissed. The standard of review was reasonableness and the arbitrator applied the correct legal principles. His finding was reasonable given the evidence before him and it was entitled to deference.

Motors Insurance Co. v. Old Republic Insurance Co., [2009] O.J. No. 3005, June 24, 2009, Ontario Superior Court of Justice, T.P. Herman J.

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The motion by an Insurer for summary judgment dismissing the Plaintiff's claim for injuries sustained when a car struck her house was dismissed where the Court found that the Plaintiff met the definition of an "insured person".

Tucci v. Pugliese, [2009] O.J. No. 2956, July 10, 2009, Ontario Superior Court of Justice, K.A. Langdon J.

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The Insurer was entitled to deduct the gross sum rather than the net sum received by the Insureds from the at-fault underinsured motorist.

Green v. State Farm Mutual Automobile Insurance Co., [2009] O.J. No. 2713, June 16, 2009, Ontario Superior Court of Justice, R.C. Boswell J.

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An insured under the uninsured coverage provisions of Ontario's standard O.A.P. 1 is only disentitled to recover under the uninsured coverage in O.A.P. 1 based on the negligence of an insured joint tortfeasor where the joint tortfeasor's insurer admits liability to pay or where the insured obtained a judgment against the joint tortfeasor.

Loftus v. Robertson, [2009] O.J. No. 3458, August 21, 2009, Ontario Court of Appeal, W.K. Winkler C.J.O., J.M. Simmons and R.P. Armstrong JJ.A.

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