Insurance

Coachman Insurance Co. v. Kraft: A Passenger can be in “Use” of a Motorized Vehicle

In Coachman Insurance Co. v. Kraft,[1] a recent decision of the Ontario Superior Court, the Court found that “use” of a “motorized vehicle” in a homeowner’s policy exclusion includes the conduct of a passenger on an ATV. Even as a passenger, one may exercise “some form of control over” a motor vehicle, sufficient to come within the definition of the term “use”.

Commercial LitigationInsurance

The Ontario Court Of Appeal Leaves Window Cleaners Out To Dry On Window Replacement Costs

The Ontario Court of Appeal's recent decision in G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Co. ["Procleaners"]1 is an interesting example of the application of the "your work" exclusion, particularly since the Court rejected the approach to policy interpretation that the Newfoundland Court of Appeal gave to an exclusion with very similar wording.

Insurance

In Nodel v. Stewart Title Guaranty Co., it “Paid” to Know the Rules of Policy Interpretation

n a recent decision from the Ontario Superior Court, Nodel v. Stewart Title Guaranty Co., Justice Matheson applied well established policy interpretation principles to an "exception from coverage" clause contained in a schedule to a title insurance policy, which effectively operated as an exclusion clause. Typically, an exclusion clause bars coverage when a claim otherwise falls within the initial grant of coverage. Exceptions then bring an otherwise excluded claim back within coverage. Oddly, in the title insurance policy issued by the respondent, Stewart Title Guaranty Co.'s ("Stewart Title"), both the exclusion and "exception from coverage" clauses set out risks that fell outside the scope of the coverage grant. It was one such "exception from coverage" clause that was at issue in Nodel, specifically the interpretation of the words "are paid to".

Insurance

Failure To Take Assignment From Insured Could Bar Broker’s Claim

A recent Ontario case illustrates the complex nature of insurance law. It also demonstrates what can happen when a party to a coverage claim fails to have the proper advice on coverage issues. In this case, an automobile insurer denied a coverage claim because the broker listed the wrong vehicle on the application for insurance. The broker indemnified the insured, and then sought indemnity from the insurer. A judge then granted summary judgment in favour of the insurer, finding the broker had no claim in its own name, and notably it had not taken an assignment of the insured's right to indemnity from the insurer. In January, the Ontario Court of Appeal (OCA) ordered the claim to proceed to trial. As explained below, the broker would be in a much stronger position if it had taken an assignment from the insured.

Insurance

Court Of Appeal Dramatically Restricts Application Of “Delay” Exclusion In E&O Policy

In Hollowcore v. Visocchi, the Ontario Court of Appeal (ONCA) recently limited the application of a "delay" exclusion where damages awarded against the insured arose from two concurrent causes, notwithstanding that one of these causes was excluded from coverage. The damages in Hollowcore were caused by negligence and delay by the insured. The policy covered damages arising out of negligence claims, but excluded claims arising out of the insureds' failure to complete engineering drawings on time.

Insurance

Supreme Court Limits “Cost Of Making Good” Exclusion, But Leaves Residual Uncertainty

The Supreme Court of Canada has released its much-anticipated decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. The case is notable in three ways. First, it continues a trend of the Court bringing real commercial sense to the interpretation of insurance policies. Second, it restricts the scope of the faulty workmanship exclusion to the actual cost of redoing the work. Third, it unfortunately provides unnecessary commentary that may result in some ongoing uncertainty, particularly in the area of faulty design.

Insurance

Carneiro v. Durham: The Independent Rights Of An Additional Insured

In Carneiro v. Durham (Regional Municipality) 1, the Ontario Court of Appeal recently had the opportunity to consider the bundle of rights afforded to a municipality, named as an additional under a contractor's liability policy. The Court held that the municipality had independent rights under the policy, including a right to a defence, regardless of the defence provided to the named insured.

Insurance

Is That “Faulty Workmanship” Exclusion Watertight? ONCA Finds That Insurer Cannot Exclude Resulting Damage By Implication

Many all-risks insurance policies exclude damage caused by a contractor's faulty workmanship. The breadth of these "faulty workmanship" exclusions vary considerably. On one hand, a clause may narrowly exclude only the "cost of making good" the contractor's defective work. On the other hand, a clause may exclude not only the cost of correcting the fault, but any damage caused as a result of the work performed. Such damage is commonly known as "resulting damage". The Ontario Court of Appeal recently held that an insurer cannot exclude resulting damage by implication. Where a "faulty workmanship" clause is silent on resulting damage, such damage will remain covered.

Commercial LitigationInsurance

Ontario Court Of Appeal: Reasonable Apprehension Of Conflict Forces Insurer To Relinquish Control Of Defence

The Ontario Court of Appeal has again confirmed that an insurer's contractual right to control a defence must yield to the interests of its insured where its coverage position creates a reasonable apprehension that defence counsel would be in a conflict of interest.

In Hoang v. Vicentini, the Ontario Court of Appeal ordered an insurer to relinquish control over the defence of its insured and pay for the insured's independent counsel. The Court confirmed that if a fact affecting your coverage is disputed in the underlying litigation, a conflict of interest arises.