This is an appeal from an interlocutory decision obliging the Appellant, Optimum Insurance Company, to defend its insured and pay the cost of independent counsel in an action arising from a motor vehicle accident. The appellant insurer sought a stay of the matter pending the outcome of another matter deciding the same issues. The court upheld the lower court finding that there was a duty to defend, regardless of whether there were parallel proceedings and refused to grant a stay.

24. June 2004 0
Drane v. Optimum Frontier Insurance Co., [2004] N.B.J. No. 251, New Brunswick Court of Appeal

This appeal deals with the interpretation of a contract for additional underinsured motorist coverage and the application of the “collateral benefits rule”. The appeal court allowed the appellant insurer to set off against its own liability present and future long-term disability benefits received by the insured, pursuant to a private contract with another insurer. The appeal court held that the insurer enjoyed both a right of subrogation and an entitlement to an assignment with respect to its insured’s LTD benefits awarded because of a disability caused by the insured accident.

23. June 2004 0
Campbell-MacIsaac v. Deveaux, [2004] N.S.J. No. 250, Nova Scotia Court of Appeal

An air compressor towed behind a modified truck is not a “trailer” and is therefore not to be included as a component of the vehicle’s weight. Because the truck could not be classified as a “heavy commercial vehicle” subject to a loss transfer claim, the appeal of an arbitrator’s decision regarding a “loss transfer” claim for statutory benefits paid by one insurer to another in respect of an MVA was dismissed.

23. June 2004 0
Royal Insurance Company v. Wawanesa Mutual Insurance Company, [2004] O.J. No. 2924, Ontario Superior Court of Justice

This was an application by the Insurance Corporation of British Columbia for a declaration pursuant to the Bankruptcy and Insolvency Act that a judgment against a driver for an intentional act of violence by means of a vehicle survives the discharge provisions of the Act. The court held that section 178 of the Act, which states that a judgment for damages similar in nature to a fine, penalty or restitution order was immune from discharge under the Act, applied, and the judgment debt to ICBC therefore survived the respondent’s bankruptcy.

14. June 2004 0
Sangha (Re), [2004] B.C.J. No. 1211, British Columbia Supreme Court

The Court of Appeal upheld a trial decision holding that an insurer (“Royal”) was entitled to rely on an exclusion clause denying coverage for “loss or damage resulting from the intentional or criminal acts of … any person insured by this policy” where the insured homeowner’s (“Torchia’s”) husband committed arson in destroying Torchia’s home. The court rejected the argument that the wording of the exclusion clause was ambiguous and could be interpreted to only exclude losses suffered by the person committing the act.

03. June 2004 0
Torchia v. Royal & SunAlliance Insurance Co. of Canada, [2004] O.J. No. 2316, Ontario Court of Appeal

The operator of the SkyDome (“Sportsco”) was successful in obtaining a declaration that its insurer under a CGL policy (“ING”) had an obligation to defend Sportsco in an action commenced by the Toronto Blue Jays baseball team arising from damage to SkyDome’s retractable roof allegedly caused by the negligence of Sportsco which resulted in the cancellation of a baseball game.

ING Insurance Co. of Canada v. Sportsco International L.P., [2004] O.J. No. 2254 Ontario Superior Court of Justice

In order to deny first party benefits under an insurance policy on the basis that the insured attempted to commit suicide, the insurer must overcome the common law presumption against the commission of suicide. Overcoming this presumption requires the insurer to establish, with clear and unequivocal evidence, that the insured committed or attempted to commit suicide.

Huber (Guardian ad litem of) v. Insurance Corp. of British Columbia, [2004] B.C.J. No. 903, British Columbia Supreme Court