Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on the duty to defend and how the courts allocate defence costs.
Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on how courts resolve overlapping coverage where there is one or more 'other insurance' clauses.
Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies – for example, how courts resolve overlapping or concurrent coverage absent a clause in one or more of the policies that deals with the issue.
Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on identifying situations of overlapping or concurrent coverage.
Timely reporting to the insurer is essential for liability insurance policies structured on a claims-made basis. Coverage can be lost if a policy renewal intercedes between knowledge of a potential claim and before the insurer is notified. While that result can be justified in some circumstances, a recent decision from the Ontario Superior Court of Justice helpfully confirms that the policy had better be clear for the insurer to take that position.
The Ontario Court of Appeal (ONCA) has released a decision that reiterates a key guiding principle in proceedings brought to enforce an insurer's duty to defend: the court must carefully review the underlying pleading and focus on the true nature of the claim, not simply the words used by the plaintiff in the underlying claim, to determine whether any of the claims could potentially be covered by the policy. The ONCA overturned a lower court judge who the court stated had failed to properly conduct this analysis.
The Ontario Insurance Act requires that every property insurance contract in the province gives the parties a right to require that disagreements about the amount of an insured loss be resolved via an appraisal process. However, the principles applicable to appraisals are often not well understood. A recent case seems to be the latest example of this and is necessary reading for any insured thinking about invoking an appraisal.
Insurance applications can be challenging but being diligent is important as an insurer may deny coverage of a claim if an insured incorrectly answered a question or failed to disclose material information. On the other hand, insureds should be aware that the courts will scrutinise claims of inadequate disclosure on a reasonableness basis.
The Alberta Court of Appeal recently addressed a recurring coverage issue: the conflict between the broad protection intended by an 'all perils' property insurance policy and an exclusion for the costs of making good faulty workmanship. Based in part on the general purpose of such insurance, the decision held that property damage directly caused by the faulty workmanship of a contractor was covered, as long as it was outside the scope of work for which the contractor had been hired.
The Alberta Court of Appeal has ordered an insurer to defend claims made against its insured's cold storage business, which was sued when its warehouse thawed and damaged its customer's food products. This case illustrates that it is important to always review a policy's specific words to determine what it covers rather than rely on received wisdom about what a policy typically covers.
In a recent case, the Ontario Court of Appeal addressed three important elements of the duty to defend where there is concurrent coverage under two policies – namely, whether there was a concurrent duty to defend given the existence of an 'other insurance' clause, the obligation to pay ongoing costs and its allocation and the right to participate in the defence.
The Ontario Superior Court of Justice recently held that an insurer which wrongfully denied a US$121 million claim must pay pre-judgment interest based on the actual cost of borrowing and not the rates stipulated in the Courts of Justice Act. Counsel and adjusters would be wise to carefully consider this case in any future insurance coverage dispute, as it sets out a number of factors that a court could consider in deciding whether to award commercial interest rates.
An Ontario judge recently interpreted a data exclusion in favour of the insureds, ordering the insurer to defend claims arising out of an alleged website security breach. This case reaffirms the principle that exclusions are to be read narrowly, not broadly. Particularly where the relevant policy provisions engage complex issues not yet judicially considered, the court may err on the side of finding for the insured.
In the fight against the COVID-19 pandemic, businesses are closing or restricting their operations across Canada. It is clear is that these measures, although necessary to protect public health, are causing lost revenue and increased expenses. This article provides information on business interruption insurance (BII), which is a common type of commercial property insurance. For many insureds, BII is the coverage most likely to respond to losses resulting from restrictions imposed to fight COVID-19.
Some policyholders purchase professional fees coverage as an extension to their insurance policy's general coverage grant to reimburse an insured for the expense of hiring professionals to assist in quantifying a loss and putting a claim together to satisfy an insurer's requirements. In a case concerning a fire at a church, Ontario's Superior Court of Justice addressed who controls the decision of whether such professionals will be retained and have their fees covered by the insurance policy.
The general position that bankruptcy can substantially vary the rights of insureds has often been argued and rejected. A recent Ontario Superior Court of Justice decision has confirmed that an insurer's duty of good faith is not extinguished on the bankruptcy of the insured.
The Ontario Court of Appeal recently held that an insurer which had defended its insured for 10 months, without a reservation of rights, could not rely on a policy exclusion to withdraw its defence. In this decision, the court did not find it necessary to distinguish between waiver and estoppel. As such, insurers and insureds alike should ensure that they appreciate the potential consequences applicable to both waiver and estoppel and govern themselves accordingly.
The Ontario Court of Appeal recently reconfirmed that an insured's duty to cooperate with defence council appointed by its insurer is not subject to a standard of perfection. This case serves as a strong reminder that a breach of the duty to cooperate must be substantial. It shows that, in practice, without real consequences arising from an insured's conduct, there can be no substantial breach of the duty to cooperate.
A recent Alberta Court of Queen's Bench decision demonstrates that policyholders must carefully consider the interplay between an insurance policy and its endorsements. One consideration is the distinction between endorsements that provide standalone coverage and those intended only to modify an existing policy's terms. However, most important is the overarching principle that any limitations of coverage should be clearly stated.
The Ontario Superior Court of Justice recently concluded that insurance policies should be interpreted differently when multiple insurers are involved. This decision runs contrary to the basic rules of contractual interpretation and conflicts with well-established precedent. If followed, it could lead to commercially unreasonable results and erode the benefits of coverage available to insured parties.