• Defence & Indemnity
  • July 26, 2017 | Author: Brian Vail
  • Law Firm: Field Law - Edmonton Office
  • I. INSURANCE ISSUES

    A. Insurance policies are to be interpreted on how an ordinary person would understand them such that, absent clear policy wording to the contrary, the interests of co-insureds are to be considered several such that the misrepresentation of one co-insured will not render the coverage of an innocent

    co-insured voidable.

    Haraba v. Wawanesa Mutual Insurance Company (The), 2017 ABQB 190, per Shelley, J. [4225]

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    B. In Alberta an insured’s settlement with a third party which releases the third party does not preclude the insured’s insurer from pursuing a subrogated claim against the third party. Elsewhere in Canada, at common law a settlement by the insured with a third party operates as a defence against a subrogated claim brought by the insured’s insurer except where the third party was aware that the insurer had paid the insured’s claim and intended to advance a subrogated claim.

    Stairs v. CFM Corp., 2017 NBCA 8 [4226]

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    C. The drivers of two cars involved in an accident privately made a settlement and release agreement, giving the Newfoundland Court of Appeal an opportunity to clarify the legal test for the doctrine of unconscionability. After tracing its unsettled history, the Court articulated a two-part test that pays regard to the equitable roots of the doctrine.

    Downer v. Pitcher, 2017 NLCA 13, per Green, C.J.N.L. [4228]

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    D. The “lessee” or “renter” of a leased or rented vehicle for the purposes of auto insurance priority legislation is determined on the basis of who the lease/rental company can look to for payment.

    Insurance Corp. of British Columbia v. Lloyds Underwriters, 2017 ONSC 670, per Penny, J. [4229]

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    E. For non-owned auto coverage under a standard Alberta SPN No. 1 auto policy coverage for the “Insured” is not restricted to the “named insured” but also extends to any other form of “insured” under the policy.

    Conradi v. Economical Mutual Insurance Co., 2015 ABQB 308, per Clackson, J. [4230]

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    F. Where an auto insurer employs an insurance form (such as a policy, endorsement, or application,) that has not been approved by the Superintendent, the unapproved form will be interpreted by the courts on the basis of contract law. The fact that the form was not Superintendent-approved as required by the Insurance Act, is a matter to be dealt with by the Superintendent pursuant to the Superintendent’s powers to investigate and punish deviations from the approved forms and not by the courts.

    Royal & Sun Alliance Insurance Company of Canada v. Intact Insurance Company, 2017 ONCA 381, per Juriansz, J.A. [4232]

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    II. LIABILITY ISSUES

    A. The Ontario Superior Court of Justice refused to grant summary dismissal in a social host liquor liability case where the adult defendants supervised their son’s party, involving underage drinking (including by the plaintiff) on the basis or a potential paternalistic relationship between the defendants and the plaintiff.

    Wardak v. Froom, 2017 ONSC 1166, per Matheson, J. [4227]

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    B. A commercial host’s liability with respect to an intoxicated patron will not necessarily end when the patron arrives safely home – it is not necessarily a break in the chain of causation.

    Widdowson v. Rockwell [2017] B.C.J. No. 457, per Kent, J. [4233]

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    C. The two drivers in a street race were found to be joint tort-feasors, both responsible for the death of a passenger in one of the vehicles, and the passenger was found contributorily negligent for failing to take reasonable care for her own safety in agreeing to be a passenger in the circumstances.

    Suran v. Auluck, [2017] B.C.J. No. 564, per Burke, J. [4234]

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    III. QUANTUM/DAMAGES ISSUES

    A. The SCC has watered down the test for compensable psychological injury and done away with the need for expert evidence to establish it.

    Saadati v. Moorhead, 2017 SCC 28, per Brown, J. [4238]

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    IV. PRACTICE ISSUES

    A. The Court may order a social media provider such as Facebook to reveal the identity of anonymous posters where the interests of justice favour such disclosure.

    Olsen v. Facebook Inc., 2016 NSSC 155, per Wood, J. [4231]

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