Author Archive | Michael Thomas

Defendants presented as one party in an action may not be able to challenge an apportionment of responsibility

Two separate insurers insured two defendants in a tort action. The defendants’ were presented as one party in the tort action, and were represented by one counsel. No crossclaims were made. Following judgement, one insurer sought a declaration that the two defendants should bear equal responsibility for the tort judgments. The court held that by melding the positions of […]

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Failure to disclose knowledge of a potential claim at the time of application may not exclude entitlement to insurance proceeds

The defendant insureds sought and were granted a declaration that their professional liability insurer was required to provide a defence in an action on the basis the insurer was not able to conclusively show that coverage would be excluded on the basis of the insureds’ knowledge of a potential claim at the time they applied […]

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An insured may be entitled to punitive damages if her insured unsuccessfully attempts to breach her for impaired driving

A plaintiff was successful in seeking a declaration that she was entitled to coverage on the basis that her motor vehicle insurer had not established she was impaired at the time of the accident and she was awarded punitive damages for the insurer’s bad faith conduct with respect to the claim. McDonald v. Insurance Corp. […]

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Broker Liable for Failing to Advise Insured of Vacancy Exclusion

An insured brought an action against his insurance broker for failing to advise him about the vacancy exclusion in his policy. The action was allowed and the insured was awarded damages. Cheecham v. Saskatchewan Government Insurance [2011] S.J. No. 500, August 2, 2011, Saskatchewan Court of Queen’s Bench, B. Scherman J. The plaintiff, Mr. Roy […]

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An insured was not entitled to fire insurance when his psychotic son set fire to his house.

Mr. Darch set fire to his parents’ home resulting in the total destruction of the premises. He was charged with arson but found "not criminally responsible" for the offence in the criminal proceedings. The home was insured by the defendant insurance company. The insureds submitted a proof of loss regarding the fire and were denied coverage on the basis […]

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Evidence of the Intention of The Parties Outside of The Insurance Contract May Be Used to Establish The Terms of The Contract

Appeal of declaration of entitlement to long-term disability benefits to age 65 allowed, the Court finding that the insured was only entitled to long-term disability benefits for two years. McGarry v. Co-operators Life Insurance Co., [2011] B.C.J. No. 773, April 28, 2011, British Columbia Court of Appeal, K.C. Mackenzie, P.D. Lowry and C.E. Hinkson JJ.A. […]

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An action for bad faith may be severed from the underlying action disputing entitlement to insurance benefits

Insurer’s application for bifurcation of bad faith claim granted. Cort v. Insurance Corp. of British Columbia, [2011] B.C.J. No. 853, May 5, 2011, British Columbia Supreme Court, Master P. Keighley The insured’s pick up truck was destroyed by fire. The insured had purchased fire insurance coverage from the insurer, ICBC. Frustrated by the lack of progress on […]

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Out of Province insurer’s cannot rely upon limitations or exclusions contained in the Province where the accident occured.

The plaintiff was successful in having the court overturn the dismissal of the plaintiff’s application to add Republic Western Insurance Company (“RWIC”) as a defendant to the action where the court held that RWIC was not entitled to rely upon the limitation provision in s.103 of the Insurance (Vehicle) Regulation, B.C. Regulation 447/83 (the “Regulations”) […]

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Insureds who are sued and successfully defended by their insurer may be able to obtain double costs.

Application for double costs. Application granted. Martin v. Lavigne [2010] B.C.J. No 2240, November 17, 2010, British Columbia Supreme Court, G.D. Burnyeat J. The defendants applied for an order for double costs pursuant to 9-1(1)(c) and 9-1(5)(b) and 14-1(1) of the Rules following the trial of the matter which commenced on May 31,2010. The plaintiffs’ […]

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