This was an Appeal by the third party Pizza Nova of the dismissal of its motion for summary judgment. The Plaintiff Freudmann and Defendant Tran were in an MVA. Freudmann was injured. Tran was underinsured. Freudmann asserted a claim under her underinsured motorist protection against her insurer, Zurich. Zurich learned that Tran was delivering pizza at the time of the accident for Pizza Nova, and issued a third party claim against Pizza Nova. Pizza Nova sought to have the third party claim dismissed on the basis that Zurich’s only claim against it was subrogated and therefore must be brought in the name of the insured. The motions court held that the Ontario Rules of Civil Procedure allowing third party actions by any Defendant against any party who “may be liable … for all or part of the claim” and the Rule was sufficient to allow the third party action. The Appeal court agreed that the Rule was sufficient to override the normal subrogation principle that would prevent an insurer from suing in its own name. The appeal was dismissed.

26. April 2004 0
Freudmann-Cohen v. Tran, [2004] O.J. No. 1699 Ontario Court of Appeal

This is an interlocutory decision relating to a claim for a loss due to flooding. The Plaintiff is the adult son of the named insured. The Defendant insurer brought an Application to strike the Plaintiff’s claim on the basis that he had no privity to the insurance contract. The Plaintiff brought a cross-Application for a declaration that he can continue the action in his own name, or for an order allowing him to amend his pleadings to substitute his father. The court denied the Application to strike, denied the Plaintiff’s right to continue the action in his own name, and allowed the amendment despite its being brought out of time under a statutory limitation period.

19. April 2004 0
Fenrich v. Wawanesa Mutual Insurance Co., [2004] A.J. No. 458, Alberta Court of Queen’s Bench

This is an appeal by an insurer from a judgment in a Special Case. The trial judge declared that Part 3 of the Insurance Act prohibits provisions regarding a limitation period in a group life insurance and long-term disability policy, and allowed the Plaintiff’s claim for long-term disability benefits brought outside the limitation in the policy. The Appeal court reversed, holding that the contract was for life insurance and was bound by the appropriate statutory limitation period and therefore the claim was statute barred.

19. April 2004 0
Gumpp v. Co-operators Life Insurance Co., [2004] B.C.J. No. 742, British Columbia Court of Appeal

The Plaintiff (“Stevens”), in an action seeking entitlement to long-term disability benefits, brought an application for production of documents and information relating to his allegations of bad faith against the disability insurer (“Sun Life”). The court held that the contract claim relating to benefits should be severed from the bad faith claim, with the contract claim to be determined first.

06. April 2004 0
Stevens v. Sun Life Assurance Co. of Canada, [2004] B.C.J. No. 661, British Columbia Supreme Court

This was an appeal by the Defendant insurer SGI. At trial, the insurer was held to be liable to insure the loss by fire of the insured’s logging equipment. At issue was the communication between the insurer, the third party agent, and the insured Plaintiff. Between the time of the insured’s first policy issued in 1987 and the loss in May 1996, there were a number of oral revisions, yearly renewals, and additions to the equipment insured under the policy. One of the revisions was a warrantee requiring biannual inspections of fire prevention equipment. The insured never conducted those inspections and claimed he was not informed about the warrantee by the agent. The trial judge found that there was an oral contract of insurance in place at the time of the loss, accepted that the insured was not informed of the new warrantee and held that as the warrantee was unilaterally imposed by the insurer it was unenforceable. On Appeal, the court upheld the result at trial although on a different basis, finding that there was a new contract of insurance in place with each yearly renewal, and at the time of the loss, in May, the Plaintiff was in compliance with the warrantee which required only bi-annual inspections. A third party claim against the agent was dismissed.

06. April 2004 0
L.L.A. Logging Ltd. v. Saskatchewan Government Insurance, [2004] S.J. No. 228, Saskatchewan Court of Appeal

The Petitioner Insurer (“CNS”) was successful in obtaining a declaration that the Respondents (the “Demers”) were not entitled to indemnity or defence under a homeowners policy issued by CNS with respect to civil actions brought against the Demers by a neighbour who had been shot by Mr. Demers. The court held that the Demers failed to commence an action for coverage within the limitation period provided by section 22(1) of the Insurance Act, R.S.B.C. 1996, c. 226.

31. March 2004 0
Canadian Northern Shield v. Demers, [2004] B.C.J. No. 650 British Columbia Supreme Court

The Plaintiff’s claim for long-term disability benefits under a group policy of insurance issued by the Defendant was dismissed. The court held that a pre-existing condition exclusion clause was operative where symptoms of a disorder were exhibited during the applicable waiting period even though the ultimate diagnosis of the condition was delayed until after the expiry of the waiting period.

29. March 2004 0
Van Maele v. Alberta Blue Cross Benefits Corp., [2004] A.J. No. 367, Alberta Court of Queen’s Bench