Despite the pleadings, an insurer may not have a duty to defend an insured who commits an intentional assault

12. April 2010 0

The applicant sought an order requiring RBC General Insurance to defend him in a claim arising from the applicant hitting a third party in the eye with a glass.  The judge dismissed the application citing the true nature of the pleadings was that the applicant deliberately and with full knowledge of his actions hit the third party in the eye resulting in an intentional assault, which was not covered under the policy.

Makowchik v. RBC General Insurance Co., [2010] O.J. No. 533, February 2, 2010, Ontario Superior Court of Justice, A. Pollak J.

Makowchik requested an order requiring RBC General Insurace Company (“RBC”) to defend him in an action commenced against him by third party Beajan.  The issue was whether RBC had a duty to defend Makowchik and whether it had to pay for independent counsel engaged by Makowchik, if a duty to defend was established.

Makowchik asserted that the substance of Beajan’s claim was that he was injured in an altercation in a bar either intentionally or negligently by Makowchik.  Negligence fell within the scope of the coverage of the policy.  RBC argued that the true nature of the pleadings, without any regards as to whether the claims had merit, had to be established and that the harm allegedly inflicted by the negligent conduct was derivative of that caused by the intentional conduct.  RBC argued that the negligence and the intentional tort arose from the same action and caused the same harm.

The judge found that the true nature of the pleadings were that Makowchik hit Beajan in the face with a glass, deliberately with full knowledge of his action thereby committing an intentional assault on Beajan.

RBC argued that Makowchik was covered against losses due to the compensatory claims of others for bodily injury which arise out of an accident or occurrence, and that the natural and probable consequences of a deliberate act cannot be said to have been caused by an accident.  RBC further argued that the policy expressly excluded claims for damages for bodily injury caused intentionally by the applicant at his direction or resulting from his criminal acts or omissions.  The judge agreed with the submissions of RBC and denied the application by Makowchik.  Since it was found that RBC did not have a duty to defend Makowchik, it was unnecessary to consider whether independent counsel should be appointed to defend Makowchik.

This case was originally summarized by Neil J. MacDonald and originally edited by David Pilley.

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