Claims for breach of contract and negligence against an insurer require proof of the standard of care required by the insurer and its adjusters

Claims against Insurer in negligence and breach of contract dismissed on a non-suit motion on the basis of the Insureds’ failure to adduce evidence of the standard of care.

Tingley v. Wellington Insurance, [2009] N.S.J. No. 375, August 18, 2009, Nova Scotia Supreme Court, D. MacAdam J.

This case involved a motion by the Defendant Insurer for a declaration of a non-suit.  The Plaintiff Insureds were a mother and her children whose home was insured by the Insurer.  After a break-in, the Insured and her children began to have health problems including skin irritations, breathing problems, and other symptoms.  The Insurer arranged for a cleaning of the home and advised the family to return home because it was safe.  The Insureds continued to have health problems and the Insurer arranged additional cleaning.  Ultimately, the Insureds moved from their home.

The Insureds brought a claim against the Insurer for breach of contract for the Insurer’s failure to compensate them for items contaminated following the break-in.  The Insureds also advanced claims of equitable fraud, negligent misrepresentation, and negligence by the Insurer and its adjuster.

The Court dismissed the Insureds’ claims for breach of contract and negligence on the basis that the Insureds had failed to present any evidence of the standard of care required of an insurer or its adjuster with respect to assessing a claim for chemical contamination of a home.  The Court did not dismiss the claim with respect to negligent misrepresentation and equitable fraud as there was evidence that the Insurer’s adjuster advised the Insureds that their home was safe to inhabit after the initial cleaning.  There was evidence that, at that time, the cleaning had not eradicated the problems with the home.

This case was originally summarized by Cameron B. Elder and edited by David W. Pilley.

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