Coverage down the toilet due to vacancy

Insurance law – Homeowner’s insurance – Exclusions – Water damage – Interpretation of policy – Practice – Summary judgments

Morgan v. Co-operators General Insurance Co., [2022] O.J. No. 5674, 2022 ONSC 7254, Ontario Superior Court of Justice, December 21, 2022, MacNeil J.

The insured sought coverage for water damage to his townhouse under his home insurance policy. The insured first purchased the policy from the insurer in 2016, and renewed it annually. The policy included a vacancy exclusion, specifying that insurance was not provided for loss or damage caused by water escape or rupture after the dwelling had been vacant for more than five consecutive days. The exclusion also excluded any loss or damage if the dwelling was vacant for more than 30 consecutive days. “Vacant” was defined as: “regardless of the presence of personal property or furnishings, a dwelling is vacant, in the case of… an existing dwelling, when all residents have moved out with no intention of moving back in and another resident has not yet moved in”.

The insured began renting his townhouse in January 2019. The tenant moved out in October 2019 and the insured decided to sell the property. Renovations were carried out until November 4, 2019 when the property was listed for sale. On December 9, 2019, a water line leading to a toilet burst, causing damage.

The insured argued that it was inappropriate to summarily determine whether the vacancy exclusion clause applied, because the policy was ambiguous with respect to when coverage is provided if a dwelling is not fully vacant and unoccupied. The court disagreed, noting that the only conflict related to the parties’ legal interpretation of the insurance provisions. The term “vacant” was clearly defined in the policy, and the insured’s visits to the property during renovations did not serve to make the dwelling not “vacant”. As such, the vacancy exclusion clause applied, and there was no coverage for the loss.

This case was digested by Joe Antifaev, 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 Joe Antifaev at jantifaev@harpergrey.com.

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