An insured will generally owe a duty to defend pursuant to an indemnity agreement

Insurer found to owe a duty to defend and indemnify the applicant pursuant to an indemnity agreement between the applicant and the insured.

Minto Developments Inc. v. Carlsbad Paving and Intact Insurance, [2012] O.J. No. 1089, March 8, 2012, Ontario Superior Court of Justice, S.J. Kershman J.

The applicant Minto sought a declaration and order that the insured Carlsbad and the insurer Intact Insurance were obliged to provide and fund the full defence of Minto in an underlying action in which the plaintiff sought damages for injuries she sustained due to ice and slippery conditions on a parking lot near the residence for which the insured had a contract with Minto to perform snow clearing, snow removal, and ice control. The insured agreed to indemnify and save harmless Minto for all actions, awards, judgments and proceedings for personal injury expenses and costs, including legal fees, suffered or incurred by Minto arising out of or in any way connected with the operations of the insured. The insured was required to and had in force for the duration of the contract, a comprehensive general liability policy with the insurer. Minto was an additional named insured under the insured’s policy with Intact.

Looking at the Statement of Claim as a whole, the court found that the true nature of the claim was based on negligence. The plaintiff was alleged to have slipped and fallen on ice in the parking lot near her home. It was the insured’s responsibility to keep the parking lot clear and to deal with the issue of ice control. The court found that the insurer had a duty to defend Minto in the underlying action. In the result, the court declared that the insured and the insurer were obliged to provide and fund a full defence to Minto and that the insured and/or the insurer would indemnify Minto for liability attributable to the insured in the underlying action.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP.

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