The plaintiff’s action against the defendant insurer, alleging liability according to section 24 of the Insurance Act, was dismissed. The court found that the CGL policy held by the third-party insolvent insured did not provide coverage for losses arising from breach of contract when air conditioning equipment rather than refrigeration equipment was installed by the third-party insured. The defendant insured was not estopped from denying coverage as a result of its actions in defending the claim advanced by the plaintiff against the third-party even in the absence of a formal non-waiver agreement or reservation of rights by the insurer.

29. December 2004 0
Alpine Florist & Food Market Ltd. v. Axa Pacific Insurance Company, [2004] B.C.J. No 2710, 2004 BCSC 1731, British Columbia Supreme Court

The Ontario Court of Appeal overturned the finding of the trial judge who erred in holding that the insured was not in breach of its obligation to disclose all material facts relevant to determining the risk inherent in its new cheque issuing process, even in the absence of specific questions from the insurer. The Court also stated that when determining the scope of the duty to disclose, there must be an objective element to the insurer’s awareness of the risk.

23. December 2004 0
W.H. Stuart Mutuals Ltd. v. London Guarantee Insurance Co., [2004] O.J. No. 5156, Ontario Court of Appeal

This is an Alberta automobile insurer’s appeal of a BC Supreme Court ruling on a petition. At issue was an accident in BC in which an Alberta resident was a passenger. The passenger required underinsured motorist protection (UMP) coverage to satisfy her claim. Both the driver’s insurer, ICBC, and the passenger’s own Alberta insurer, Royal Sun & Alliance, provided UMP coverage, but both policies purported to provide excess coverage only. On the petition both pointed to the other insurer as the primary payor. The lower Court held that Royal was the primary insurer, and the Appeal Court upheld the finding that Royal was precluded by BC legislation from enforcing terms different from those mandated under BC’s statutory scheme.

17. December 2004 0
Park v. Insurance Corp. of British Columbia, [2004] B.C.J. No. 2632, British Columbia Court of Appeal

Pursuant to s. 132 of the Insurance Act, the plaintiff successfully recovered from the defendant insurer of a bankrupt insured damages that arose when the riding arena the insured was hired to construct at the plaintiff’s farm collapsed. Despite the fact that the plaintiff was not a party to the contract of insurance, there was no distinction between the reasonable expectation of the plaintiff and the reasonable expectation of the insured that there would be coverage for the damage claimed.

15. December 2004 0
Amondsen v. General Accident Assurance Co., [2004] O.J. No. 5633, Ontario Superior Court of Justice

The trial judge dismissed the plaintiff’s claim for damages arising from a motor vehicle accident because both the insured and the driver had previously signed an endorsement acknowledging that the defendant insurer would not provide coverage while the driver involved in the accident drove any vehicles covered under the policy. There is no ongoing obligation on the insurer to continue to remind an insured after an endorsement excluding certain drivers has been signed but before additional vehicles have been added to the policy, that the excluded driver endorsement remains in effect.

14. December 2004 0
Hunter v. Economical Insurance Group, [2004] O.J. No. 5262, Ontario Superior Court of Justice

Halpern Investments Ltd. (“Halpern Investments”) was unsuccessful in obtaining an order that it was covered for damages resulting from fire where it was admitted that the principal of Halpern Investments (“Halpern”) had previously submitted a fraudulent proof of loss relating to the same fire on behalf of a co-insured company (“Regal”). The court found that Halpern was the guiding hand behind both Halpern Investments and Regal and that his fraudulent conduct warranted piercing the corporate veil to ensure that Halpern did not benefit from such conduct.

29. November 2004 0
Halpern Investments Ltd. v. Sovereign General Insurance Co., [2004] A.J. No. 1376, Alberta Court of Queen’s Bench

An insured (“Mr. Metcalfe”), who died of a drug overdose, had purchased a life insurance policy seven years before his death. Although he did not disclose to the life insurance company that he had been in a drug treatment program for cocaine and heroin use three years before obtaining the policy, the life insurance policy was determined to be valid, because the insured did not fraudulently misrepresent his status to the insurer.

23. November 2004 0
Metcalfe v. Manufacturers Life Insurance Co., [2004] B.C.J. No. 2415, British Columbia Supreme Court

An operator of an elementary school (“Palliser”) was successful in obtaining an order that its insurer (“Aviva”) was obligated to defend it with respect to claims brought by neighbours of Palliser which alleged that coal dust transported by wind from Palliser’s property was damaging their homes. The court held that the Pollution Exclusion in the policy did not apply to these claims as blowing coal dust failed the common sense test for “pollution” which was intended or expected to be excluded from coverage.

23. November 2004 0
Palliser Regional School Division No. 26 v. Aviva Scottish & York Insurance Co., [2004] A.J. No. 1356, Alberta Court of Queen’s Bench