Defame game: do you fall within the definition of an additional insured?

The insurer was ordered to defend a university professor against allegations that she defamed a former colleague as the claims against her raised the possibility that she was acting on behalf of the university and was thus an “additional insured” under the policy.

Insurance law – Liability insurance – Duty to defend – Additional named insured

MacFarlane v. Canadian Universities Reciprocal Insurance Exchange, [2019] O.J. No. 4185, 2019 ONSC 4631, Ontario Superior Court of Justice, August 2, 2019, J. Kimmel J.

The insured university professor sought a defence from the insurer after she was sued for defamation by a former colleague. The insurer denied it owed a duty to defend on the basis that the professor was not an additional insured on the policy.

The court considered whether any of the claims advanced allowed for a possibility that the insured was acting in her capacity as a professor employed by the University of Windsor, and on the University of Windsor’s behalf, when she made the impugned statements. The court concluded that, at all material times, the insured identified herself as a University of Windsor professor, used her University of Windsor e-mail address in correspondence with her colleague’s university, and the alleged statements were made to her colleague’s then employers by her in her capacity as a professor at the institution from which her colleague’s employment had been terminated. Accordingly, the insured was found to be an additional insured under the policy and the duty to defend was triggered. However, the mere fact that the insurer resisted the duty to defend did not create a conflict that would deprive it of the right to appoint defence counsel.

This case was digested by Jaeda B. Lee, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Jaeda B. Lee at jlee@harpergrey.com.

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