Insured alleged to have shaken baby not entitled to defence

Insurance law – Commercial general liability insurance – Duty to defend – Exclusion – Injury – Interpretation of policy

Henderson v. Northbridge General Insurance Corp., [2021] B.C.J. No. 2031, 2021 BCSC 1841, British Columbia Supreme Court, September 21, 2021, R.S. Tindale J.

The insured petitioned the court for a declaration of coverage and a duty to defend as against her insurer. The insured operated a daycare. The insurer provided general liability coverage.

An infant at the insured’s daycare brought a claim against the insured in which it was alleged that the insured shook the infant to such a degree that a brain injury resulted or, in the alternative, permitted other employees of the daycare to shake the infant plaintiff. More general allegations were also advanced including managing the daycare when she was not adequately trained to do so, failing to adequately meet the needs of the infant plaintiff, causing harm to the infant plaintiff by negligent or inappropriate handling of the infant, and failing to protect the infant from harm and danger. Assault was alleged in the alternative.

The insurer denied coverage on the basis of an exclusion for bodily injury expected or intended from the standpoint of the insured. The insurer also raised a second exclusion clause which limits coverage to $500,000 and increases the deductible to $10,000 in the event of a claim for bodily injury arising from claims alleging actual or threatened abuse by or at the direction of an insured.

The court held that the claims in negligence and the intentional tort of assault were not sufficiently disparate to render the two claims unrelated. The court held they are alleged to arise from the same actions and to have caused the same harm. The court therefore held that the negligence claim was derivative and the insurer was not obligated to defend the insured.

This case was digested by Cameron B. Elder, 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 Cameron B. Elder at celder@harpergrey.com.

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