This was an application by the Defendant Insurer for bifurcation of a trial for breach of contract following the denial of long-term disability benefits, and a claim of breach of good faith and fair dealing. The Plaintiff Insured claimed a breach of good faith both in considering the claim for long-term disability benefits, and the Insurer’s conduct in continuing to deny the claim after litigation was commenced. The court ordered bifurcation, and held that the post-litigation allegations necessarily raised issues about the advice taken by counsel. The Insurer would have to retain new counsel and may require the breach of privileged communications. Prejudice to the Insurer outweighed that which would be suffered by the Insured by the delay and expense of two trials.

20. February 2005 0
Stuart v. The Manufacturers Life Insurance Company et al, [2004] B.C.J. No. 729,  Supreme Court of British Columbia

A group of Siberian tigers attacked and injured a couple who were driving their car through a game park. The game park was strictly liable for their injuries. Section 267.1(7) of the Insurance Act makes all parties liable for injuries resulting directly or indirectly from use or operation of an automobile severally liable for the damages. The judge determined that section 267.1 of the Insurance Act did not apply because the injuries suffered by the insureds when they were attacked by the tigers could not be said to arise from the use and operation of an automobile.

27. January 2005 0
Cowles v. Balac, [2005] O.J. No. 229, Ontario Superior Court of Justice

Section 136(b) of the Regulations to the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 voids insurance coverage for an insured who leaves the scene of a motor vehicle accident to the prejudice of the insurer. If the insured leaves the scene of the accident to avoid a breathalyzer test, the insurer is prejudiced, and the insured will not be insured for damages arising from the accident. In determining whether an insured has breached the insurance contract an adjuster may contact the police and enquire if charges are being contemplated against the insured.

26. January 2005 0
Thornber v. Insurance Corp. of British Columbia, [2005] B.C.J. No. 114, British Columbia Court of Appeal

The B.C. Court of Appeal dismissed the appeal of a judge’s order directing the plaintiff to produce documents to the defendant insurer providing details of a mediated settlement the plaintiff agreed to on his wife’s behalf in another action arising from a MVA in which the plaintiff’s wife was injured. The Court found that although the “blanket” settlement privilege applied to the settlement documents, the documents fell within an exception to privilege because they were both relevant and necessary.

07. January 2005 0
Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, [2005] B.C.J. No. 5 2005 BCCA 4, British Columbia Court of Appeal

The plaintiff’s action against the defendant insurer, alleging liability according to section 24 of the Insurance Act, was dismissed. The court found that the CGL policy held by the third-party insolvent insured did not provide coverage for losses arising from breach of contract when air conditioning equipment rather than refrigeration equipment was installed by the third-party insured. The defendant insured was not estopped from denying coverage as a result of its actions in defending the claim advanced by the plaintiff against the third-party even in the absence of a formal non-waiver agreement or reservation of rights by the insurer.

29. December 2004 0
Alpine Florist & Food Market Ltd. v. Axa Pacific Insurance Company, [2004] B.C.J. No 2710, 2004 BCSC 1731, British Columbia Supreme Court

The Ontario Court of Appeal overturned the finding of the trial judge who erred in holding that the insured was not in breach of its obligation to disclose all material facts relevant to determining the risk inherent in its new cheque issuing process, even in the absence of specific questions from the insurer. The Court also stated that when determining the scope of the duty to disclose, there must be an objective element to the insurer’s awareness of the risk.

23. December 2004 0
W.H. Stuart Mutuals Ltd. v. London Guarantee Insurance Co., [2004] O.J. No. 5156, Ontario Court of Appeal

This is an Alberta automobile insurer’s appeal of a BC Supreme Court ruling on a petition. At issue was an accident in BC in which an Alberta resident was a passenger. The passenger required underinsured motorist protection (UMP) coverage to satisfy her claim. Both the driver’s insurer, ICBC, and the passenger’s own Alberta insurer, Royal Sun & Alliance, provided UMP coverage, but both policies purported to provide excess coverage only. On the petition both pointed to the other insurer as the primary payor. The lower Court held that Royal was the primary insurer, and the Appeal Court upheld the finding that Royal was precluded by BC legislation from enforcing terms different from those mandated under BC’s statutory scheme.

17. December 2004 0
Park v. Insurance Corp. of British Columbia, [2004] B.C.J. No. 2632, British Columbia Court of Appeal

Pursuant to s. 132 of the Insurance Act, the plaintiff successfully recovered from the defendant insurer of a bankrupt insured damages that arose when the riding arena the insured was hired to construct at the plaintiff’s farm collapsed. Despite the fact that the plaintiff was not a party to the contract of insurance, there was no distinction between the reasonable expectation of the plaintiff and the reasonable expectation of the insured that there would be coverage for the damage claimed.

15. December 2004 0
Amondsen v. General Accident Assurance Co., [2004] O.J. No. 5633, Ontario Superior Court of Justice