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

Insured which advanced claim for both uninsured loss and insured loss in subrogated claim was allowed to have carriage and control of action.

Zurich Insurance Co. v. Ison T.H. Auto Sales Inc., [2011] O.J. No. 4720, October 25, 2011, Ontario Court of Appeal, J.C. MacPherson, H.S. LaForme and G.J. Epstein JJ.A.

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Court of Appeal upheld award of damages for mental distress in relation to a claim for statutory accident benefits.

McQueen v. Echelon General Insurance Co., [2011] O.J. No. 4563, October 18, 2011, Ontario Court of Appeal, E.E. Gillese, R.P. Armstrong and A. Karakatsanis JJ.A.

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Insured sued for damages to school caused by a fire started by the insured's son. Insured brought a third party claim against his insurer for indemnification under his homeowner's liability policy. Insure brought Motion for a determination of whether or not it owed the insured a duty to defend.

Motion allowed. No duty to defend found because the only allegations against the insured were for a failure to act and these allegations were specifically caught by the "intentional act" exclusion clause.

Durham District School Board v. Grodesky [2011] O.J. No. 3533, May 31, 2011, Ontario Superior Court of Justice, D.S. Gunsolus J.

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This case concerned coverage under a motor vehicle policy for damage to a car caused by a fire.  The fire started as a result of the driver spinning the rear tires recklessly, which led to the rear axle of the car breaking. Heat then built up in the tire wells, starting a fire.  The Insurance Corporation of British Columbia ("ICBC") denied coverage as the insurance policy did not cover mechanical "loss or damage" such as the breaking of an axle.

The Court of Appeal allowed the appeal on the basis that the term "loss or damage" in an exception to an exclusion had a narrower meaning than the same term in the exclusion itself.  Although there was an exclusion for mechanical damage, there was an exception if the loss or damage claimed for was caused by "fire".  As the insured was not claiming for the breaking of the axle (the "mechanical damage"), but rather the damage caused by the fire, there was an exception to the exclusion clause.

Swailes v. Insurance Corp. of British Columbia [2011] B.C.J. No. 319, March 2, 2011, British Columbia Court of Appeal, L.S.G. Finch C.J.B.C., M.E. Saunders and K.E. Neilson JJ.A.

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