Court permits Insured to Appoint Counsel at Insurer’s Expense: Temple Insurance Company v Sazwan, 2018 ABQB 156

In 2018, the Alberta Court of Queen’s Bench (Court) handed down a decision that provided a precedent for an insured to choose its preferred counsel that the insurers will have the onus of financing. This is permitted in certain circumstances only, and requires a reasonable apprehension of conflict of interest.

Background

The Court reached its 2018 decision  by way of an Amended Originating Application. In this case, the Applicants were Temple Insurance Company, Aviva Insurance Company of Canada, XL Reinsurance America Inc, Arch Insurance Canada Ltd, Everest Insurance Company of Canada and Lloyd’s Underwriters (Insurers). The Respondents in this action were Clark Sazwan and Denise Sazwan (Sazwans).

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Come hell or “high-water”: What damage is covered by the Builder’s Risk policy?

On March 6, 2019, the Court of Appeal of Newfoundland and Labrador clarified the question of whether damage to property during a construction project is covered by the Builder’s Risk policy or the General Liability policy held by a contractor. The answer is; it depends. In Dominion of Canada General Insurance Company v Viking Fire Protection Inc.[1] the three-panel decision written by O’Brien J.A. poignantly begins with:

[w]hen water inadvertently escapes from a sprinkler system during construction, the law of gravity will determine its flow. The law of contract will determine whether the property which is damaged as a result of the flowing water is insured under a policy of insurance.

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When a contractor fails to name a property owner as an additional insured

With winter weather on the horizon, ’tis the season for slips and falls. To keep visitors safe, many property owners will contract out their winter maintenance this year. A standard obligation imposed on contractors under these winter maintenance contracts is the requirement to obtain comprehensive general liability insurance naming the property owner as an additional insured. But what happens if the contractor fails to name the property owner as an additional insured?

Duty to defend

An insurer is required to defend an insured against any claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the additional insured for the claim.

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THE GIVE-AND-TAKE (AWAY) OF INSURANCE: LOSING BENEFITS FOR FAILING TO FOLLOW THE RULES

Reprinted from the Insurance Brokers Association of Alberta’s magazine – The Alberta Broker (August/September 2019)

The Case

In Greenidge v Allstate Insurance Company,[1] the insured, Jenine Greenidge (“Ms. Greenidge”), sued her insurer, Allstate Insurance Company (“Allstate”), after Allstate terminated Ms. Greenidge’s Section B accident benefits under Alberta’s Standard Automobile Policy SPF No. 1 (“SPF No. 1”).  Following a motor vehicle accident in which Ms. Greenidge suffered whiplash and temporomandibular joint (“TMJ”) injuries, Ms. Greenidge had made a claim under Section B of the SPF No. 1, and initially, Allstate made payments to Ms. Greenidge for her claim.  However, when Allstate requested that Ms.

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Off-coverage positions and the timing of a breach of policy defence: Bradfield v. Royal Sun Alliance Insurance Company of Canada, 2019 ONCA 800

On October 7, 2019, the Ontario Court of Appeal released its decision in the case involving Royal Sun Alliance Insurance Company of Canada (“RSA”) and Jeffrey Bradfield. This decision is noteworthy as it may have the effect of decreasing an insurer’s burden to promptly investigate to determine coverage.

Facts

At all relevant times, RSA provided motorcycle insurance to Steven Devecseri (“SD”). In May 2006, SD was driving his motorcycle with Jeffrey Bradfield (“Bradfield”) and Paul Latanski (“Latanski”). SD guided the group onto the wrong side of the road where they collided with Jeremy Caton’s (“Caton”) automobile.

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Importance of early due diligence and promptness: Analysis of the decision in Commonwell v Campbell, 2019 ONCA 668

Background

In April 2013, the respondent, Shayne Campbell, was involved in a dirt bike accident. He collided with an ATV (all-terrain vehicle), injuring the ATV driver. In April 2015, Mr. Campbell was sued for negligence.

Mr. Campbell’s automobile insurer, The Guarantee Company of North America (Guarantee), had Mr. Campbell sign a non-waiver agreement and issued a reservation of rights letter before ultimately denying coverage.

The appellant, Commonwell Mutual Insurance Group (Commonwell), held Mr. Campbell’s homeowner’s policy. In June 2015, without securing a non-waiver agreement or issuing a reservation of rights letter, Commonwell appointed a lawyer to defend the claim against Mr.

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Cannabis exclusion in home insurance policies may not be effective when tenants’ grow-op causes loss

Despite the efforts of insurers to exclude coverage in habitational insurance policies for losses caused by cannabis cultivation or production, a recent Alberta case serves as a reminder that coverage may, nevertheless, apply where an insured’s tenant’s grow-op causes a loss.[1] This is due to the existence of so-called “innocent insured” provisions in the Insurance Acts of Alberta, British Columbia and Manitoba.

Background

Home insurance policies have traditionally excluded coverage for losses caused by illegal activities. Many have also specifically excluded coverage for losses arising from illegal drug activity. With the Cannabis Act having come into force on October 17, 2018, Canadians may now legally cultivate up to four cannabis plants at a time in their dwelling-house.

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