A broker must advise an insured of potential lapses in coverage

No coverage for an insured whose property was vandalized while it was vacant due to a vacancy clause. However, the insured was successful in an action against his agent.

Newbigging v. M. Butler Insurance Brokers Ltd., [2012] O.J. No. 4270, September 13, 2012, Ontario Superior Court of Justice, T. Maddalena J.

The insured owned a residential property which he used as a boarding house for four occupants. The insured contacted the defendant insurance broker to arrange insurance coverage for the residence. While the residence was vacant, the insured’s property manager discovered water damage in the basement which resulted from vandalism to the property while it was vacant. The insured claimed the loss through his insurance policy and the claim was denied on the basis of a vacancy clause in the policy. The insured then made a claim against his broker for failure of the agent to properly explain the vacancy provision in the policy to the insured.

At trial, the insured was awarded damages for the agent’s failure to provide the appropriate insurance coverage. The broker appealed and the appeal was dismissed on the basis that the trial judge correctly found in law that the agent had breached his obligation to the insured by failing to tell him that any time the premises were vacant, there would be no coverage under the policy.

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

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