Appeal by the insured of a summary judgment dismissing its subrogated claim. The motion judge dismissed the action on the basis the defendants could take advantage of the insured's insurance coverage as third party beneficiaries, or alternatively, the parties' contractual arrangements made it clear that the insured's policy of insurance was for the benefit of all those engaged in the insured's project. The appeal was dismissed on the basis the contractual arrangement could only be understood as an undertaking to obtain insurance for the benefit of the insured's contractors and subcontractors and a waiver of claims in respect of losses covered by such insurance.

De Beers Canada Inc. v. Ootahpan Co.,[2014] O.J. No. 4904, October 21, 2014, Ontario Court of Appeal, G.R. Strathy, P.S. Rouleau and C.W. Hourigan JJ.A.

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An insurer was declared the dominus litis of a subrogated claim brought in the name of the insured despite the insureds making assignments in bankruptcy prior to the insurer commencing the action.

Douglas v. Stan Ferguson Fuels Ltd., [2014] O.J. No. 3741, August 13, 2014, Ontario Superior Court of Justice, B.W. Abrams J.


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Significant aggravated and punitive damages were warranted due to the insurer’s breach of the duty of utmost good faith and the effect of that breach on the insured. The insurer breached the duty of utmost good faith where: it failed to fairly assess the need for rehabilitation services; it failed to disclose an IME relevant to the rehabilitation issue until days before trial; it failed to meaningfully address a decision of the Tax Court regarding the taxability of benefits; and the accuracy of one of its witnesses’ testimony wrongly favoured the insurer.

Industrial Alliance Insurance and Financial Services Inc. v. Brine [2014] N.S.J. No. 328, June 18, 2014, Nova Scotia Supreme Court, C.A. Bourgeois J.

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The existance of subrogated action in insured's name in Alberta for property damage was not a bar to insured's claim for personal injuries in Ontario.

Kelly v. Horn, [2014] O.J. No. 2872, June 16, 2014, Ontario Superior Court of Justice, F.N. Marrocco A.C.J.S.C.J., A.C.R. Whitten and Thomas JJ.

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Action by the insured for interpretation of a long-term disability plan. The insured was on long-term disability after she was injured in a motor vehicle accident. She received a global amount from the defendant in settlement of the motor vehicle litigation. The insurer deducted from her benefits payments some of the money she received in settlement for wage compensation; otherwise, she would be overpaid for that head of damage. The plan included a provision which stated that if a lump sum payment is made under judgment or settlement for loss of future income or earning capacity, the insurer will be "entitled to make a determination of the amount of compensation this represents on a monthly basis and to reduce the benefits for each month after the settlement or judgment by the amount of the Employee's overcompensation." The court held that the insurer was entitled to deduct an amount each month for wage compensation to make up for the insured's overpayment since receiving her settlement, and that the onus was on the plaintiff seeking benefits, and not the insurer, to prove how much of her global settlement amount was comprised of wage compensation versus other heads of damages.

Carter v. New Brunswick, [2013] N.B.J. No. 274, August 12, 2013, New Brunswick Court of Queen's Bench, Trial Division, J. Ouellette J.

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Subrogated claim by an insurer to recover amounts paid to the vehicle owners for property damage to the vehicle. The action was allowed and a judgment in favor of the plaintiffs was granted.

Haugseth v. Burleigh, [2013] A.J. No. 292, March 22, 2013, Alberta Provincial Court, L.L. Burt Prov. Ct. J.

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Subcontractors may not benefit from a third party lease.

Defendant construction company could not benefit from a clause in a lease between the plaintiff lessee and a third party lessor requiring plaintiff to obtain construction insurance to defeat a claim by the plaintiff against the defendant arising out of damage to the plaintiff's building caused by the defendant and its subcontractors.

Bank of Nova Scotia v. Lockerbie & Hole Industrial Inc., [2013] O.J. No. 1167, March 14, 2013, Ontario Superior Court of Justice, E.M. Morgan J.

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An insurer has 6 years to file a claim against an insured for reimbursement of proceeds

The application by an insured under a long term disability policy ("Catalano") to dismiss an action by the disability insurer ("Sun Life") seeking to recover insurance monies pursuant to a reimbursement agreement was dismissed where the Court held that the applicable limitation period was six years.

Sun Life Assurance Co. of Canada v. Catalano, [2012] B.C.J. No. 2566, November 28, 2012, British Columbia Supreme Court, J.E.D. Savage J.

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The right to subrogate parrallels the right of the insured to recover damages

An insurer may not bring a subrogated claim against an employee of an insured where the insured has no right to claim against the employee.

Portage La Prairie Mutual Insurance Co. v. MacLean, [2012] N.S.J. No. 520, October 1, 2012, Nova Scotia Supreme Court, P.J. Duncan J.

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A duty to defend is owed where a lawsuit raises a possiblity of coverage under the policy

An appeal by an insurer from an order that it defend its insureds and reimburse them for defence costs. The appeal was dismissed.

Meridian Construction Inc. v. Royal & SunAlliance Insurance Co. of Canada, [2012] N.S.J. No. 450, August 23, 2012, Nova Scotia Court of Appeal, M.J. Hamilton, J.E. Fichaud and P. Bryson JJ.A.

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