An automobile must defend claims brough against an insured for failing to insure that childer were seatbelted.
An application by third parties for an order that their automobile insurer defend them with respect to allegations raised in third party notices. The application was allowed and costs were awarded to the applicants.
Shum Estate v. Dewetter, [2011] A.J. No. 1210, November 2, 2011, Alberta Court of Queen’s Bench, J.D. Rooke A.C.J.
The applicants and their minor children were passengers in a vehicle that was involved in an accident which was caused by the defendant, Carpenter. An action was commenced by the applicants for personal injuries. Third party notices were issued which alleged that the applicants’ minor children were injured as a result of the applicants’ failure to insure that the children were wearing seatbelts or were properly wearing their seatbelts.
The applicants argued that the duty to defend was triggered by the third party notices. In deciding that issue the Court was required to consider whether the use or improper use of seatbelts constituted the “use or operation of part of the automobile” pursuant to the Standard Automobile Policy. The respondents’ position was that it was not the operation of the seat belts, but the failure to fasten them, that was the cause of the injury and therefore they were not required to defend the applicants.
The Court held that there was a possibility of indemnity, and therefore the duty to defend arose. It is the pleadings that govern the duty to defend. The mere possibility that a claim within the policy may succeed is sufficient. The Court did not accept that because there was an allegation of a failure to operate the seatbelt that indemnity would be precluded.
The applicants were awarded solicitor client costs for their defence and the application, payable forthwith and in any event of result.
This case was digested by Kim Yee and edited by David W. Pilley of Harper Grey LLP.
