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.,  O.J. No. 3004, June 24, 2009, Ontario Superior Court of Justice, T.P. Herman J.
The underlying action arose out of a motor vehicle accident. The vehicle operated by the plaintiff was allegedly struck by the car operated by Ms. Noonan. Ms. Noonan was driving a car rented from Choice Cars. Choice Cars had, in turn, leased the car from Tracamount, the car’s owner.
Choice Cars had an insurance policy with Zurich. Tracamount had a contingent lessor’s liability policy with Lombard. Lombard brought an application for an order compelling Zurich to defend and indemnify Tracamount and Noonan. Zurich took the position that the car was not covered by its policy because it was not listed in Choice Car’s monthly fleet report. In the result, the car would be covered by Tracamount’s contingent liability policy with Lombard.
The policy delivered by Zurich was a standard Ontario Automobile Policy which required all insured cars to be “described”, that is, listed on the Certificate of Automobile Insurance. There was also an Endorsement to allow coverage for non-owned cars. The Endorsement provided that Zurich was required to submit a monthly fleet report, a statement of the actual number of vehicles being leased each month. The fleet report for the relevant period did not list the car that was involved in the accident.
Lombard’s position was that Choice Cars was only required to report the “amount” of vehicles to be insured each month, but that it was not required to identify particular vehicles as a condition for coverage. Zurich’s position was that Choice Cars was required to identify the specific vehicles from the previous month. If a vehicle was not identified, it was not covered by Zurich’s policy.
The court accepted Zurich’s position, finding that nothing in the Endorsement indicated that it was exempt from the requirements in the standard policy. The standard policy included a requirement that the vehicle be “described” in order to be insured. This meant that Choice Cars, under the standard policy, was required to identify individual vehicles, not just the amount of vehicles. The court stated that it makes sense that an insurance company would need to know which particular vehicles it was insuring, otherwise there would be a concern that an insured could claim insurance for an non-insured car.