An insured threw a tire iron at a third party. The tire iron struck the third party in the temple and killed him. The insurance company was required to provide the insured with a defence to the civil action commenced against him by the deceased family because there was a real possibility that the insured could be found to have killed the third party as a result of negligence, as opposed to an assault or trespass to the person without lawful justification.

22. December 2005 0

Miller v. Grain Insurance and Guarantee Co., [2005] S.J. No. 767, Saskatchewan Court of Queen’s Bench

Mr. Kakakaway’s parents commenced an action against Mr. Miller to recover damages resulting from the negligent and/or intentional acts of Mr. Miller relating to the March 19, 2000 death of Mr. Kakakaway. In this action it was alleged that Mr. Kakakaway and a friend had been drinking at their home on a reserve. Shortly after midnight on March 19, 2002, they grabbed their baseball bats, apparently for protection from “stray dogs” and proceeded toward a resort, where Mr. Miller and others were having a party at a cabin. Mr. Kakakaway and his cousin proceeded to damage vehicles parked outside the cabin, and then fled when they were chased by Mr. Miller and his friends on foot. Nearly 30 minutes later, Mr. Miller and his friends caught up with Mr. Kakakaway and his cousin. An altercation ensued in which Mr. Miller threw a tire iron which struck Mr. Kakakaway in the temple and killed him.

Mr. Miller made an application pursuant to his insurance contract with Grain Insurance and Guarantee Co. (“Grain Insurance”) to defend him with respect to the allegations that had been made against him. Grain Insurance refused to defend him on the basis that Mr. Miller’s actions fell within the intentional act exclusion in the policy. The intentional act exclusion clause in the policy states:

This policy does not apply to bodily injury or property damage caused intentionally by or at the direction of the insured.

Mr. Miller commenced this action against Grain Insurance for a declaration of entitlement to coverage under his policy of insurance. In assessing the application, Chicoine J. noted that the Supreme Court of Canada reviewed the general issue of the scope of an insurer’s duty to defend in the presence of an exclusion cause in the case of Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49. Grain Insurance argued that it was not obligated to defend Mr. Miller because the policy did not apply to bodily injury which was caused intentionally by the insured. Chicoine J. analyzed the Statement of Claim to determine if the factual allegations set out therein confined the Plaintiffs’ legal claim to the fact that Mr. Miller intentionally caused bodily harm to the deceased without lawful justification. Chicoine J. noted that Mr. Kakakaway and his cousin went to Mr. Miller’s cabin in the dark of night carrying two baseball bats and apparently without provocation damaged a number of vehicles. Although the Statement of Claim does not provide an explanation as to why Mr. Miller threw the tire iron at Mr. Kakakaway, it does contemplate that the Applicant may have thrown it without the intended consequence of causing serious bodily harm. Chicoine J. determined that on the basis of the pleadings, there was a possibility that Mr. Miller could be held liable for some of the damage claimed by the parents of Mr. Kakakaway from the use of excessive force to defend himself or others in his entourage. Although a plea of self-defence may result in an acquittal of criminal charges of assault causing bodily harm, it may not result in complete exoneration at a civil trial if the type or amount of force used was deemed excessive or not well measured.

Chicoine J. concluded that since the intention of Mr. Miller in throwing the tire iron was not necessarily for the purpose or with the intent of causing bodily harm to Mr. Kakakaway, the claim against Mr. Miller was not excluded by the intentional act exclusion clause contained in his policy of insurance. Chicoine J. declared that Mr. Miller was entitled to coverage under his policy of insurance, and that he was entitled to appoint legal counsel of his choosing to defend himself.

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