Generally allegations of assault and battery will not raise a duty to defend

18. February 2013 0

Insurer was not under a duty to defend an insured in an action where the insured, a teacher, was alleged to have committed assault and battery in respect to a student.

Dube v. BCAA Insurance Corp., [2012] B.C.J. No. 2751, December 24, 2012, British Columbia Supreme Court, S.F. Kelleher J.

The insurer brought an application to dismiss the insured’s action. The action was brought by the insured in response to a letter from the insurer denying coverage to the insured on the basis of its “intentional or criminal act” exclusion. The insured, a teacher, sought coverage under a residential insurance policy issued by the insurer in respect to a notice of civil claim in which the insured was named as a defendant and which alleged assault and battery and negligence in respect to a student.

The court found that all but two of the allegations of negligence against the insured were derivative of the allegations of assault and battery. The court found that the true nature of the claim was an action for assault and battery and that the allegations of negligence for the most part arose from the same action and caused the same harm. The two allegations of negligence which were not derivative fell squarely within an exclusion clause in respect to claims arising from “sexual, physical, psychological or emotional abuse …” Accordingly, the court found that the insurer had no duty to defend the insured.

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

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