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

This case concerned coverage under a motor vehicle policy for damage to a car caused by a fire.  The fire started as a result of the driver spinning the rear tires recklessly, which led to the rear axle of the car breaking. Heat then built up in the tire wells, starting a fire.  The Insurance Corporation of British Columbia ("ICBC") denied coverage as the insurance policy did not cover mechanical "loss or damage" such as the breaking of an axle.

The Court of Appeal allowed the appeal on the basis that the term "loss or damage" in an exception to an exclusion had a narrower meaning than the same term in the exclusion itself.  Although there was an exclusion for mechanical damage, there was an exception if the loss or damage claimed for was caused by "fire".  As the insured was not claiming for the breaking of the axle (the "mechanical damage"), but rather the damage caused by the fire, there was an exception to the exclusion clause.

Swailes v. Insurance Corp. of British Columbia [2011] B.C.J. No. 319, March 2, 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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This case involves an application to determine whether an insurer has a duty to defend an action against an insured in relation to a claim for property damage to property formerly owned by the insured.  The property was sold, and the insurer argued that there was an exclusion policy in respect of property "owned" by the insured, and therefore, it had no duty to defend.

The court held that the exclusion for property damage to property owned by the insured was not intended to apply to situations where the property had been transferred to a third party, and a duty to defend arose.  The judge held that "the exclusion cannot be read as it was written both in the present tense and the past tense.  It is in the present tense only."

Hector v. Piazza [2011] O.J. No. 971, March 4, 2011, Ontario Superior Court of Justice, P.B. Annis J.

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An employee pursued a human rights complaint against her employer alleging discrimination with respect to disabilities which interfered with her ability to work.  The human rights complaint was settled and the employee executed a release of all claims, including claims for long term disability benefits.  At the same time the employee pursued a claim for long term disability benefits and the insurer eventually allowed her claim after two internal appeals.  The insurer later learned of the release and sought the return of the benefits paid to the employee.  The Court held the insurer was entitled to rely on the release.

Zelsman v. Meridian Credit Union Ltd. 2011 ONSC 1680, September 7, 2011, Ontario Superior Court of Justice, K.D. Coats J.

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The plaintiff was injured when he was assaulted in his vehicle when he stopped for gas.  He made a claim for statutory accident benefits, but his insurer denied the claim on the basis that the injuries were not sustained in an “accident” within the meaning of the governing legislation.  The insurer brought an application for summary judgment and the application was dismissed.  The Court found the plaintiff's injuries were directly connected to the use and operation of his vehicle because they were caused by assailants whose purpose was to seize possession and control of the plaintiff's automobile from him. The assault was not random but arose out of his ownership, use and operation of his vehicle.

Downer v. Personal Insurance Co. [2011] O.J. No. 3806, August 23, 2011, Ontario Superior Court of Justice, J. C. Murray J.

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An insured brought a claim against her travel insurer for medical expenses incurred while on vacation. Her claim was allowed.

Turpin v. Manufacturers Life Insurance Co. [2011] B.C.J. No. 1633, August 26, 2011, British Columbia Supreme Court, R.D. Wilson J.

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The defendant rental vehicle company was found to be the proper defendant in an action involving one of its vehicles driven by an unidentified motorist.

Perret v. John Doe [2011] B.C.J. No. 1646, August 30, 2011, British Columbia Supreme Court, N. Affleck J.

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In a claim under a policy of property insurance where the value of the loss far exceeded the limits of the policy, it was determined that the plaintiff had no reason to exaggerate the value of the loss on the final proof of loss and the policy was not void due to intentional misrepresentation. The plaintiff's claim for punitive damages was also dismissed.

Sagl v. Chubb Insurance Co. of Canada 2011 ONSC 5233, September 8, 2011, Ontario Superior Court of Justice, F.N. Marrocco J.

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A defendant in four separate motor vehicle actions resulting from the same action had been defended by counsel retained by his insurer.  The insurer paid out its limits in full settlement of three of the claims and partial settlement of the fourth.  The fourth action was to continue against the defendant and the lawyer applied to get off the record.  The court granted the order, holding that to require insurers to continue to defend an action against their insured after paying out the policy limits would discourage settlement of actions.

Dominion of Canada General Insurance Co. v. Kingsway General Insurance Co. [2011] O.J. No. 811, February 24, 2011, Ontario Superior Court of Justice, H.S. Arrell J.

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An insurer denied coverage under a policy of life insurance after it had accepted payment of back premiums and reinstated coverage following the insured's death.  The court held the insurer had waived its right to require renewed evidence of insurability prior to reinstating coverage and could not later seek to deny coverage.  The court also held the insurer was estopped from denying coverage because it represented coverage would be reinstated upon payment of back premiums, which the plaintiff paid to her detriment.

Paul v. CUMIS Life Insurance Co. [2011] B.C.J. No. 373, March 7, 2011, British Columbia Supreme Court, W. Ehrcke J.

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An action by insureds to recover the proceeds from a fire insurance policy from their insurer after a fire, as well as aggravated and punitive damages for the insurer's refusal to pay. The action was allowed.

Sidhu v. Wawanesa Mutual Insurance Co. [2011] B.C.J. No. 1573, August 17, 2011, British Columbia Supreme Court, T.C. Armstrong J.

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