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

Summary judgment application by the insurer on the basis that the action was untenable at law. The Court dismissed the motion finding that there was a tenable action, and that there were genuine issues, including the validity of a policy termination, which required a trial.

Ontario (Minister of Finance) v. Traders General Insurance Co. (c.o.b. Aviva Traders) [2011] O.J. No. 3506, July 8, 2011, Ontario Superior Court of Justice, D.S. Gunsolus J.

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An application by a long term disability insurer to dismiss a claim commenced by an insured on the basis that the claim was barred by the expiration of the limitation period. The application was dismissed and costs awarded to the plaintiff.

White v. Manufacturers Life Insurance Co. (c.o.b. Manulife), [2011] B.C.J. No. 2273, November 29, 2011, British Columbia Supreme Court, T.C. Armstrong J.

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At issue was whether the respondent title insurance company owed a duty to defend the applicant lawyers in civil proceedings in which the applicant lawyers were named as defendants. The question was whether the claims against the lawyers arose under the policy of title insurance. The court held that the phrase "claims arising under the title insurance policy" required that the subject matter or scope of the coverage be consistent with the policy but that the claim did not need to be asserted by the insured against the lawyer in order to trigger the agreement requiring the title insurer to defend the lawyer so long as the claim was asserted by a party standing in the shoes of the insured.

Nakhuda v. Stewart Title Guaranty Co., [2010] O.J. No. 6170, September 10, 2010, Ontario Superior Court of Justice, M.A. Penny J.

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Application by the beneficiary for judgment against the insurer for insurance benefits. The insurer requested proof of the insured’s continued total disability. This was not provided and the insured’s policy was terminated. Application allowed. The insurer did not take clear steps to invoke the medical reporting clause in the insurance policy and did not make it clear to the insured that failing to provide the requested information could result in termination of his coverage.

Burns v. Assumption Life [2011] N.B.J. No. 364, October 26, 2011, New Brunswick Court of Queen's Bench, F. Ferguson J.

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Appeal by the insurer of the trial judge’s award of damages for breach of contract. The insurer voided the policy and denied coverage on the basis that the insured’s installation of a woodstove constituted a material change in risk. The Court of Appeal dismissed the appeal and found that the insurer’s action demonstrated that it did not consider the installation of the woodstove as a material change in risk. Therefore, the insurer could not rely on Statutory Condition 4 which required the insured to notify the insurer in writing of any change material to the risk within his control and knowledge.

Thomas v. Aviva Insurance Co. [2011] N.B.J. No. 371, October 27, 2011, New Brunswick Court of Appeal, J.E. Drapeau C.J.N.B., M.E.L. Larlee and K.A. Quigg JJ.A.

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Successful application by the insured for a determination of whether the policy covered losses for product recall.

Premium Brands Operating Limited Partnership v. Lloyd’s Underwriters [2011] B.C.J. No. 2061, November 1, 2011, British Columbia Supreme Court, P.M. Willcock J. (In Chambers)

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Insured successfully obtained a declaration that the insurer was obligated to pay for its defence costs with respect to a defamation claim, and that it should have control of its own defence.

British Columbia Medical Association v. Aviva Insurance Co. of Canada, [2011] B.C.J. No. 1948, October 19, 2011, British Columbia Supreme Court, C.J. Ross J.

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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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