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

The plaintiff insureds moved for summary judgment in the action requiring the defendant insurer to pay defence costs they incurred defending another action pursuant to the terms of a Director's and Officer's liability insurance policy ("D&O liability policy"). Based on the plain wording of the policy the plaintiff insureds established that the claims asserted against them in the other action were claims made against "Insured Persons" for "Wrongful Acts" as those terms were defined in the policies and therefore fell within the basic coverage section of each of the insurance policies. The court concluded that the insurer had a duty to advance defence costs prior to the final disposition of the action. At issue was what constitutes sufficient notice of circumstances under a D&O liability policy to entitle a subsequent claim arising out of such notice to be deemed to have occurred during the policy.

Onex v. American Home Assurance Co. [2011] O.J. No. 3031, June 30, 2011, Ontarior Superior Court of Justice, L.A. Pattillo J.

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Appeal by the insured from the dismissal of his action on the basis that the action was brought outside the one-year limitation period in the Insurance Act. The British Columbia Court of Appeal held that the trial judge erred in law in failing to apply the two-year limitation period contained in the policy and further that the policy limitation gave rise to a rolling limitation period.

Sander v. Sun Life Assurance Co. of Canada, [2011] B.C.J. No. 5, January 6, 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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An articled student, Danicek, was injured when an associate lawyer from the same firm, Poole, fell on her on the dance floor of a nightclub.  Both had attended a firm dinner and then proceeded to the night club.  Poole sought a declaration that he was entitled to a defence and indemnity under the firm's insurance policy for an action brought by Danicek.  The court held that while the duty to defend was triggered by an allegation in the pleadings that Poole was acting within the scope of his employment, there was no duty to indemnify because it was established at trial that Poole was not, in fact, acting in furtherance of the firm's business.

Danicek v. Alexander Holburn Beaudin & Lang, [2011] B.C.J. No. 78, January 21, 2011, British Columbia Supreme Court, S.F. Kelleher J.

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Insured struck in British Columbia by tractor trailor licensed in Manitoba was limited to the amount of  benefits - payable by Manitoba Public Insurance Scheme - that would have been available to her under Part 7 of the B.C. Insurance (Vehicle) Regulation.

Schuk v. York Fire & Casualty Insurance Co., [2010] B.C.J. No. 2153, November 4, 2010, British Columbia Supreme Court, B. Brown J.

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Application by the insured for coverage under an insurance policy issued by Zurich Insurance Company was allowed. The policy insured a Caterpillar D6R owned by the insured, which was stolen from a job site. Although at the time of the loss the property was “on rental”, as that term is intended in the policy, it had not left the custody of the the insured because the insured still had some measure of possession, authority over or responsibility for the safekeeping of the equipment.

Paul First Nation v. Zurich Insurance Co., [2010] A.J. No. 831, July 13, 2010, Alberta Court of Queen’s bench, B.R. Burrows J.

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Application by Brent Wormell (Wormell) for a declaration that I.C.B.C. pay him the amount of a judgment obtained against I.C.B.C.’s insured, Bradley Hagen (“Hagen”), was allowed. The loss arose out of the use and operation of Hagen’s motor vehicle. Although the outriggers were extended at the time of the loss, the truck did not cease to be a motor vehicle. Further, the loss was not excluded by virtue of s. 72 of the Insurance (Motor Vehicle) Act. The injury did not arise out of the operation of attached equipment at a site where the attached equipment was being operated.

Wormell v. Insurance Corp of British Columbia, July 21, 2010, British Columbia Supreme Court, L.A. Loo J.

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The appeal by two insurers from the dismissal of an application to dismiss a third insurer's contribution action was allowed where the Court found that the third insurer had already tried to seek contribution through amendments to an action by the insured pursuant to which the third insurer admitted that the contribution action was statute-barred and, consequently, the doctrine of issue estoppel was operative and the attempt to seek the same remedy through a separate action was found to be an abuse of process.

Insurance Co. of the State of Pennsylvania v. Global Aerospace Inc., [2010] S.J. No. 446, July 30, 2010, Saskatchewan Court of Appeal, S.J. Cameron, J.G. Lane and G.A. Smith JJ.A.

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The appeal by two Insurers from a decision allowing Cameco Corp. ("Cameco") to amend its action to pursue a subrogated claim on behalf of a third Insurer was allowed where the third Insurer had already fully indemnified Cameco for the claims covered by the other two policies and, therefore, Cameco was not able to pursue further recovery.

Insurance Co. of the State of Pennsylvania v. Cameco Corp., [2010] S.J. No. 445, July 30, 2010, Saskatchewan Court of Appeal, S.J. Cameron, J.G. Lane and G.A. Smith JJ.A.

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British Columbia Supreme Court did not have jurisdiction to deal with dispute as to quantum between Plaintiff Insured and Defendant ICBC.

476605 B.C. Ltd. v. Insurance Corp. of British Columbia, [2010] B.C.J. No. 1608, August 13, 2010, British Columbia Supreme Court, C.J. Ross J.

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A decision under s. 79(1) of the Manitoba Public Insurance Corporation Act must be appealed to the Court of Queen's Bench.

Constantin v. Manitoba Public Insurance Corp., [2010] M.J. No. 254, August 20, 2010, Manitoba Court of Appeal, F.M. Steel and A.D. MacInnes JJ.A. and H.C. Beard J. (ad hoc)

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