Relatives living in a separate and distinct household may not be entitled to fire insurance from the non resident house

An application seeking a declaration that the defendant was an unnamed insured under the policy was dismissed when it was shown that the defendant, who was a relative of the insureds, maintained a separate and distinct household from the insureds.

Jomaa v. Jomaa, [2011] O.J. No. 5468, December 2, 2011, Ontario Superior Court of Justice, D.J. Power J.

This was a case in which the plaintiff’s insurer brought a subrogated action in relation to extensive fire and water damage caused to a two-unit residential property owned by the plaintiff insureds. The named insureds were Mohamad Jomaa, Mohamad’s wife, Monira Jomaa-Kayhan, and Samir Olleik, who had formerly been married to Mohamad’s sister, Rima. The defendant was Mohamad and Rima’s brother, Issam Jomaa. This was an application by Issam seeking a declaration that he was an unnamed insured under the plaintiffs’ insurance policy and, therefore, could not be named as a defendant in the action. At issue was whether Issam was “living in the same household” as any of the plaintiffs at the time of the loss so as to bring him within the definition of “Insured” under the policy.

The policy provided as follows:

‘INSURED’ means the person(s) named as Insured on the ‘Declaration Page’ and, while living in the same household:

(a) his or her spouse;

(b)   the relatives of either; and

(c)   any person under twenty-one (21) in their care.

The policy did not define the term “while living in the same household.”

The property at issue consisted of two self-contained apartments in one building. When the plaintiffs initially purchased the property, Samir lived in the lower apartment with his then wife and Mohamad and Monira lived in the upper apartment. Later on, Mohamad and Monira moved out and Issam moved into the upper apartment to look after Mohamad and Issam’s mother, who later passed away. At the time of the fire, Issam lived in the apartment with his wife and child and did not share household obligations with any of the named insureds. At no time did Issam pay rent for living in the apartment. The evidence was unclear whether Samir was living in the lower apartment at the time of the fire.

The case authority on the issue established that the word “household” must be given a flexible meaning but could be defined as “… a collective group living in a home, acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with and an interest in the life of all that gives it a unity.” The motions judge found no basis upon which to conclude the defendant was an unnamed Insured. In the result, the plaintiffs were entitled to a declaration that they could continue with the action against the defendant, as he was not an unnamed insured under the policy.

 

This case was digested by Emily M. Williamson and edited by David W. Pilley of Harper Grey LLP.

 

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