This was an application to determine disposition of funds paid into court by ICBC to satisfy all claims against its Insured, the Defendant. Three parties had a claim to the funds, all of whom were injured in motor vehicle accidents for which the Insured was at fault. The funds available were not sufficient to satisfy all claimants; however, two of the claimants had recourse to their underinsured motorist protection (“UMP”) policies for the balance. The third was an infant and was more severely injured, and she did not have recourse for the balance to her UMP policy. Burnyeat J. held that while the usual assumption would be that the funds be paid out on a pro-rata basis to all parties with a valid claim, the legislation was silent on the issue and thus the court had discretion with respect to apportionment. The entirety of the amount held in court was paid out to the infant Claimant.

17. February 2004 0
Insurance Corp. of British Columbia v. Kushneriuk, [2004] B.C.J. No. 281, British Columbia Supreme Court

The Court allowed the appeal of an Insurer from a ruling that the Insurer was required to provide a defence and indemnity to a claim of wrongful dismissal based on intentional racial and age discrimination. The Appeal Court applied the general principle of insurance law that only fortuitous or contingent losses are covered by a liability policy. The Court rejected the Insurer’s submissions that intentional discrimination was a wilful violation of a penal statute, or that it was outside the claims for “personal injury” that were covered by the policy.

13. February 2004 0
Liberty Mutual Insurance Co. v. Hollinger Inc., [2004] O.J. No. 481, Ontario Court of Appeal

The application by a motor vehicle insurer (“ICBC”) to dismiss an action commenced by the plaintiff (“Neifer”) on the basis that the action was commenced beyond the two-year limit set by section 3(2) of the Limitation Act, R.S.B.C. 1996, c. 266, was dismissed where the court found that ICBC confirmed the cause of action so as to extend the limitation period

10. February 2004 0
Neifer v. Insurance Corp. of British Columbia, [2004] B.C.J. No. 226, British Columbia Supreme Court

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