• Defence & Indemnity
  • April 20, 2017 | Author: Brian Vail
  • Law Firm: Field Law - Edmonton Office
  • I. INSURANCE ISSUES
    A. Where an insurer has failed to afford a defence to its insured and the insured is successful in bringing proceedings to enforce the insurer’s obligations, the court can and will award the insured a complete indemnity for both defence expenses already incurred and the expense of enforcing compliance with the policy terms.
     
    Williams v. Canales, 2016 BCSC 1811 per Blok, J. [4215]
    B. The wording “as a result of a peril insured against” in an insurance policy will be interpreted to include damage that happens as a direct result of the insured peril (increased cost to bring a damaged building up to code) but will not include damage or perils that were simply discovered due to the insured peril.
     
    Roth v. Economical Mutual Insurance Company, 2016 ABCA 399 [4216]
    II. LIABILITY ISSUES
    A. The Ontario courts have set aside the default judgment in Jane Doe 464533 v. D.(N.), 2016 ONSC 4920, which recognized the privacy tort of public disclosure of embarrassing public facts and have allowed the defendant to defend the case on its merits.
     
    Jane Doe 464533 v. D.(N.), 2016 ONSC 4920, per Dow, J [4213]; app. dismissed 2017 ONSC 127, per Kitely, J. [4214]
    III. QUANTUM/DAMAGES ISSUES
    A. Regarding the defence of inevitable accident due to a medical condition, certain circumstances give rise to a presumption that the defendant drove negligently and the defendant needs expert medical evidence that causally links his or her medical condition with the accident.
     
    Behiels v. Swanson, 2016 ABQB 573 per Prowse, Master [4211]
    IV. PRACTICE ISSUES
    A. The doctrine of abuse of process does not preclude re-litigation of the issue of whether or not an individual was insured in a priority dispute between insurers in the face of that individual’s having been convicted of driving without insurance.
     
    Intact Insurance Company v. Federated Insurance Company, 2017 ONCA 73, per Doherty, J.A. [4212]
    B. In an action by homeowners against a chimney sweep, it was held that deficiencies in the plaintiffs’ expert Investigation and reports deprived the court and the other trial experts from being able to determine what actually happened such that the plaintiffs were unable to prove their case.
     
    Taylor v. West, 2016 BCSC 1821, per Fitzpatrick, J. [4217]