A Claim Against A Lawyer Will be Denied If the Lawyer is not Insured at the time the Loss is Discovered

The plaintiff was unable to recover for losses suffered as a result of her lawyer’s negligence because (1) the lawyer was not practicing law and thus was not insured at the time the loss was discovered, and (2) the lawyer did not report the potential loss to the insurer while the policy was in effect. The Alberta Court of Queen’s Bench held that there was a reasonable and appropriate gap in coverage, and the Master’s decision was upheld.

Sawyer v. Canadian Lawyers Insurance Assn., [2015] A.J. No. 239, February 26, 2015, Alberta Court of Queen's Bench, J. Strekaf J.

Continue Reading...

An insurer's obligation to indemnify an insured under a liability policy constituted a debt subject to garnishment.

Abuzour v. Heydary, [2014] O.J. No. 5199, October 28, 2014, Ontario Superior Court of Justice, M.A. Penny J.

Continue Reading...

What constitutes a claim for the purposes of the definition of “claim” under a policy of insurance is determined according to an objective test in light of the reality of what the third party communicated to the insured by words or conduct. This does not always require a specific threat of legal proceedings. In this case, a reasonable insured, in the context of the complaint, would have concluded that the complainant intended to hold the insured liable when he simply stated that the insured should cover his costs.

Hants Realty Ltd. v. Travelers Guarantee Co. of Canada [2014] N.S.J. No. 330, June 25, 2014, Nova Scotia Court of Appeal, L.L. Oland, D.P.S. Farrar and P. Bryson JJ.A.

Continue Reading...

Two or more errors, omissions or negligent acts are “related” for the purposes of a policy where there is a sufficient association or connection between them, reading the policy as a whole and bearing in mind its objective. In determining whether there is a sufficient association or connection, the court must consider the similarities and difference between the nature and kind of the alleged misconduct which underlies each claim, and the kind and character of the losses for which recovery is sought in each claim.

Simpson Wigle Law LLP v. Lawyers’ Professional Indemnity Co. [2014] O.J. No. 3037, June 25, 2014, Ontario Court of Appeal, E.E. Gillese, K.M. van Rensburg and C.W. Hourigan JJ.A.

Continue Reading...

The court gave effect to the terms of an insuring agreement for a professional liability claims-made-and-reported policy, which provided that the failure to disclose any situation or circumstance which may in the future result in a claim excluded coverage of any action subsequently emanating therefrom. As coverage for this action never existed, the insured could not seek relief against forfeiture.

Certain Underwriters at Lloyd’s of London v. All Spec Home Inspections, [2013] O.J. No. 5246, November 19, 2013, Ontario Superior Court of Justice, J.W. Quinn J.

Continue Reading...

An insurer was granted summary judgment striking a claim commenced by a judgment creditor of the insured as the claim had not been made during the policy period.

Sawyer v. Canadian Lawyers Insurance Assn., [2013] A.J. No. 1143, October 21, 2013, Alberta Court of Queen's Bench, Master J.T. Prowse

Continue Reading...

Successful application by the insured to have the insurer assume its defence. The insurer denied coverage on the basis the claim was not made during the policy period and the claim was excluded pursuant to an exclusion clause. The denial of coverage was based primarily upon the existence of administrative proceedings that proceeded before the Nova Scotia Real Estate Commission prior to the insurance policy coming into effect. The Court found there was no claim in existence at the time the policy was issued and granted the insured's application.

Hants Realty Ltd. v. Travelers Guarantee Co. of Canada, [2013] N.S.J. No. 347, June 24, 2013, Nova Scotia Supreme Court, J.E. Scanlan J.

Continue Reading...

A broker has an obligation to advise an insured of potential lapses in coverage

The appeal by an insurance broker ("Meadow-North") from a decision finding it negligent for failing to advise an insured ("Cheecham") with respect to gaps in coverage for a rental property was dismissed where the court upheld the trial judge's decision that the broker should have drawn attention to the vacant vandalism exception as part of its duty to provide counsel and advice.

Meadow-North Agencies Ltd. v. Cheecham, [2012] S.J. No. 762, December 12, 2012, Saskatchewan Court of Appeal, S.J. Cameron, G.R. Jackson and R.G. Richards JJ.A.

Continue Reading...

Where material facts are in dispute the insured's duty to indemnify cannot be determined

Application, prior to trial, by the insureds for a declaration that the insurers had a duty to indemnify them for all damages (other than punitive damages). Application dismissed. Where the material facts are in dispute, the insurer's duty to indemnify should not be determined prior to trial.

Oxford (County) v. Guarantee Co. of North America, [2012] O.J. No. 4887, July 13, 2012, Ontario Superior Court of Justice, V. Mitrow J.

Continue Reading...

Failure to disclose knowledge of a potential claim at the time of application may not exclude entitlement to insurance proceeds

The defendant insureds sought and were granted a declaration that their professional liability insurer was required to provide a defence in an action on the basis the insurer was not able to conclusively show that coverage would be excluded on the basis of the insureds' knowledge of a potential claim at the time they applied for the insurance.

Sydie v. Murad, [2011] O.J. No. 5381, November 28, 2011, Ontario Superior Court of Justice, P. Lauwers J.

Continue Reading...