The application by an insured (“Cochrane”) under a homeowner’s policy seeking a declaration that the insurer (“ING”) had a duty to defend the underlying action was dismissed where the court found that the allegations against Cochrane fell within an exclusion clause in the policy for claims “arising from the ownership, use or operation of a motorized vehicle”

06. February 2004 0
Cochrane v. ING Halifax Insurance Co., [2004] N.B.J. No. 45, New Brunswick Court of Queen’s Bench

At issue on this application was whether a duty to defend arose when an insured was in clear breach of a condition of the statutory Ontario Automobile Policy (OAP), and, if so, whether an Insurer was estopped from denying liability. A claim was made against the insured after an accident involving his son. The accident report indicated that the applicant was street racing at the time of the accident, and he was criminally charged. The Respondent Insurer conducted an investigation and had filed a Statement of Defence while reserving its right under the policy to deny liability. The Applicant claimed the Insurer was thus estopped from refusing to defend or indemnify. The application was dismissed as the Court held that while breach of an OAP condition was not sufficient for denial, other factors supported denial. No real steps had been taken in the action, and the Insured had been advised of the Insurer’s reservation of rights to deny liability. There was no prejudice.

04. February 2004 0
Bejinariu v. Primmum Insurance Co., [2004] O.J. No. 516, Ontario Superior Court of Justice

A general contractor (“Westridge”) applied for a declaration that its general liability insurer was required to defend it in an action arising from defects in a hog barn constructed by Westridge. The court dismissed Westridge’s application holding that the true nature of the claim against Westridge was for breach of contract and that the claims in negligence were derivative of this contract claim and did not give rise to a duty to defend.

23. January 2004 0
Westridge Construction Ltd. v. Zurich Insurance Co., [2004] S.J. No. 43, Saskatchewan Court of Queen’s Bench

The vacancy of a residence constitutes a material change in risk in a policy of home insurance, and the insurance policy is voided by the failure of the insured to notify of the change in risk upon vacating the premises. The policy is void whether the policy is payable in favour of the insured, or a third party, such as a bank with a mortgage in trust in the property.

15. January 2004 0
Royal Bank of Canada v. State Farm Fire and Casualty Co., [2004] O.J. No. 91, Ontario Court of Appeal

This was an appeal by the Plaintiff Credit Union from a summary trial judgment dismissing the claim. The trial judge held that the credit union’s loss from credit card fraud was not covered by its indemnity for “securities” as defined in the master bond policy issued by the Respondent insurers. The Court of Appeal allowed the appeal, holding that credit card receipts fell within the definition of securities as “drafts”.

30. December 2003 0
North Shore Credit Union v. Cumis General Insurance Co., [2003] B.C.J. No. 2923, British Columbia Court of Appeal