Insurer was found to owe insured a duty to defend in respect to claims for intentional assault and negligence.
Simone v. Economical Mutual Insurance Co.,  O.J. No. 2526, May 31, 2013, Ontario Superior Court of Justice, B.A. Glass J.
The insured sought a declaration that the insurer owed a duty to defend him in an action brought by a plaintiff who alleged he had been assaulted by the insured. The statement of claim claimed damages both for the intentional tort of assault by the insured as well as negligence on the part of the insured.
The court held that if there is a realistic possibility that a claim in negligence might be advanced separately from a claim for damages resulting from an assault, the insured is entitled to the benefit of a defence.
In this case, the insured had been found guilty of common assault and the sentence was a conditional discharge; however, the trial judge was not satisfied that the case for assault causing bodily harm was proven beyond a reasonable doubt. The trial judge found that there had been chest bumping by the insured and the plaintiff but did not find that this caused a broken leg which is the injury the plaintiff complained of. The court did not find that the negligence claim was derivative of the assault claim and therefore found that the insurer owed the insured a duty to defend.
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