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INSURANCE COVERAGE CASES ARGUED BY TGP

Woodbury v. State Farm Fire and Casualty Co., 2010 ONSC 4202. Court held that exception to watercraft exclusion in homeowner's policy did not restore coverage for a motorboat with a 175 hp inboard engine. The exclusion applied and the insurer had no duty to defend.

Goodman v. AIG Commercial Ins. Co., 2010 ONCA 391, affirming [2009] O.J. No. 4389 (Comm. List). Court allowed directors’ claims for defence costs against D&O insurer and considered interaction of a commercial D&O policy and an Outside Directors’ Liability policy.

Okafor v. Markel Insurance Co. of Canada, [2009] O.J. No. 3120 (S.C.J.). Acted for insurer and obtained dismissal of plaintiff's accident benefits claim for delay.

Dominion of Canada General Insurance Company v. Daniel Dias (September 21, 2009, Workplace Safety and Insurance Appeals Tribunal, Decision No. 1711/09). This Workers’ Compensation Appeals Tribunal decision considered whether a claimant was a “worker” at the time of an accident or an independent contractor.

Dominion of Canada General Insurance Company v. Certas Direct Insurance Company (July 15, 2009, Toronto Court file no. CV-08-00357178 Ont. S.C.J.). This appeal from the award of an arbitrator in a priority dispute considers the jurisdiction of an arbitrator to allow or disallow a dispute to continue where there is alleged delay after the expiry of the 90 days referred to in s. 3(2) of Ontario Regulation 283/95.

Gore Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company (June 12, 2009, Arbitrator Shari Novick). This insurance priority dispute considered the deemed named insured provisions of s. 66 of the SABS in the context of a Social Worker choosing to use a family vehicle to transport a client.

AXA Insurance (Canada) v. Ani-Wall Concrete Forming Inc. (2008), 91 O.R. (3d) 481 (C.A.), affirming (2007), 87 O.R. (3d) 764 (S.C.J.), additional reasons (2007), 88 O.R. (3d) 240 (S.C.J.), additional reasons (2007), 56 C.C.L.I (4th) 239 (S.C.J.). Acted for policyholder contractors and builders in claim against CGL insurer. The court held that the “Your Work”, “Your Product”, and “Rip and Tear” exclusions did not apply to claims for defective concrete.

Lloyd’s Underwriters v. Dominion of Canada General Insurance Co. (2008), 89 O.R. (3d) 509 (S.C.J.). This decision, on appeal from the decision of a private arbitrator, considered the limitation period applicable to a Loss Transfer dispute under section 275 of the Insurance Act.

Rehsi v. Dominion of Canada General Insurance Co. (June 30, 2008, FSCO Arbitration A06-002468). This decision addresses section 5(2)(e) of the SABS as well as the rehabilitation provisions of section 15 of the SABS. Claim for income replacement benefits, housekeeping and home maintenance expenses and retraining expenses dismissed.

Lawrence v. ACE INA Insurance Co. (May 16, 2008, FSCO Director's Delegate Appeal Decision, P-07-0007). This decision considered section 59(1) of the SABS, and whether a worker's election to sue in tort was made primarily to pursue a claim for statutory accident benefits.

Frohlinger v. Nortel Networks Corp. (2007), 40 C.P.C. (6th) 62 (Ont. S.C.J.). Acted as D&O insurance coverage counsel for policyholder in multi-billion dollar securities class action settlements in the U.S. and Canada.

Dominion of Canada General Insurance Co. v. Beckford-Tseu (2007), Toronto Court file no. 07-CV-325439PD2 (Ont. S.C.J.). Acted for insurer in duty to defend application. There was no duty to defend where the insured allegedly pushed the plaintiff into the path of a taxi.

Walters v. State Farm Fire and Casualty Co. (2007), 55 C.C.L.I. (4th) 95 (Ont. S.C.J.). Acted for insurer with respect to a claim for damages to a slate roof. The plaintiff was seeking replacement of the roof at a cost of approximately $200,000.00. The court found that the roof could be repaired at a cost of $10,000.00.

CAA Insurance Company (Ontario) v. Dufferin Mutual Insurance Company (Private Arbitration Decision of Stephen Malach, July 26, 2007). This insurance priority decision considered the definition of "dependant" in the context of a young adult living with her mother.

Jesuit Fathers of Upper Canada v. Guardian Insurance Co. (2006), 267 D.L.R. (4th) 1 (S.C.C.), affirming (2004), 74 O.R. (3d) 79 (C.A.), affirming (2005), 68 O.R. (3d) 175 (S.C.J.). Acted as co-counsel for insurer in the Supreme Court of Canada. At issue was coverage, under a claims-made E&O policy, for residential school abuse litigation. The Supreme Court held that only one of approximately 100 claims was first made during the policy period, and that there was no duty to defend claims made after the policy expired.

Bridgewood Building Corp. (Riverfield) v. Lombard General Insurance Co. of Canada (2006), 266 D.L.R. (4th) 182 (Ont. C.A.), affirming (2005), 26 C.C.L.I. (4th) 93 (Ont. S.C.J.), application for leave to appeal to the Supreme Court of Canada dismissed November 9, 2006. Acted for policyholders in precedent-setting decision. For the first time in Canada, the court held that statutory liability under new home warranty legislation triggered CGL coverage, in the absence of a lawsuit. In affirming the decision, the appellate court held that the business risk doctrine did not preclude coverage for faulty concrete.

Cervo v. State Farm Mutual Automobile Insurance Company (2006), 83 O.R. (3d) 205 (C.A.). This Court of Appeal decision upheld a lower court’s ruling that an injured claimant was barred from recovering SABS benefits because of late notification to the insurer. The court considered the role of a claimant’s counsel in the notification process and the Relief from Forfeiture provisions of the Insurance Act and in the SABS.

Solway v. Lloyds of London and Allianz Insurance Co. (2006), 80 O.R. (3d) 401 (C.A.), varying (2005), 75 O.R. (3d) 129 (Ont S.C.J.). Acted for policyholders in claim under transportation and storage insurance policy. The Court of Appeal held that approximately $300,000 in costs and post-judgment interest was payable by the insurer in addition to the limit of liability.

Djepic v. Kuburovic and Dominion of Canada General Insurance Co. (2006), 263 D.L.R. (4th) 709 (Ont. C.A.), varying (2005), 20 C.C.L.I. (4th) 187 (Ont. S.C.J.). Acted for auto insurer on appeal of duty to defend decision. The Court of Appeal held that the defendant in an action was not an insured under an automobile policy.

Pomarico v. Petrovic (2006), 29 M.V.R. (5th) 307 (Ont. S.C.J.). Acted for automobile insurer on motion for summary judgment dismissing claim for coverage. The court held that the insured’s policy had lapsed and that she failed to renew her policy or take steps to reinstate it within the grace period.

Chaudry v. Economical Mutual Insurance Co., [2006] I.L.R. I-4458 (Ont. S.C.J.). Acted as co-counsel for insurer in successful jury trial. The jury dismissed the plaintiff's fire loss claim on the basis that the proof of loss was fraudulent or wilfully false.

Mantini-Atkinson v. Co-operators General Insurance Co. (2005), 75 O.R. (3d) 442 (C.A.), affirming (2003), 67 O.R. (3d) 351 (S.C.J.). Acted for policyholder in duty to defend appeal concerning interpretation of a professional services exclusion.

Shipman v. Dominion of Canada General Insurance Co. (2004), 73 O.R. (3rd) 144 (C.A.). In the context of a hit and run fatality accident, the Court of Appeal considered the excluded driver provisions of the Insurance Act, the regulations and the policy. The court held that there was no liability coverage under the policy and found that the Motor Vehicle Accident Claims Fund was responsible for payment of the plaintiffs’ damages.

Majestic Empire Inc. v. Federation Insurance Co. of Canada (2004), 16 C.C.L.I. (4th) 45 (Ont. C.A.), affirming (2004), 10 C.C.L.I. (4th) 75 (Ont. S.C.J.). Acted for insurer on motion to stay action on the basis that Ontario was not the proper jurisdiction and did not have a real and substantial connection to the action.

Royal & SunAlliance Insurance Company v. AXA Insurance Company (November 21, 2003, Arbitrator Bruce Robinson). This arbitration decision considered the relationship between Rules 7 and 12 of the Fault Determination Rules in a Loss Transfer dispute.

Cooper v. Farmers’ Mutual Insurance Co. (2002), 59 O.R. (3d) 417 (C.A.), affirming (2001), 32 C.C.L.I. (3d) 284 (Ont. S.C.J.). Acted for policyholders in duty to defend application. The decision was significant as the court gave a detailed ruling on the admissibility of extrinsic evidence in duty to defend applications.

Olenicz v. Torvest Corporation (July 31, 2002, Workplace Safety Appeals Tribunal). This Workers’ Compensation Appeals Tribunal decision considered whether a claimant was a “worker” at the time of an accident or an independent contractor.

Alie v. Bertrand & Frère Construction Co. (2002), 62 O.R. (3d) 345 (C.A.). Acted as co-counsel for insurer in case involving CGL coverage for faulty concrete.

Ritchie v. Baril and State Farm Fire & Casualty Co. (2002), 43 C.C.L.I. (3d) 234 (Ont. S.C.J.). Acted for insurer in duty to defend application. The central issue was whether loss of investment funds was “property damage” under primary and umbrella liability insurance policies.

Trafalgar Insurance Co. of Canada v. Imperial Oil Ltd. (2001), 57 O.R. (3d) 425 (C.A.). Acted as co-counsel for insurer in duty to defend appeal concerning the scope of a pollution exclusion in an oil spill claim.

MacKenzie v. Baker (2001), 56 O.R. (3d) 716 (Ont. S.C.J.). Acted for homeowners’ insurer in property damage claim arising out of dispute on valuation of damaged property.

Garballa v. State Farm Fire and Casualty Co. (2000), C.C.L.I. (3d) 11 (Ont. S.C.J.). Acted for insurer in defending a claim for stolen property that failed due to insufficient proof of actual loss and value of loss.

Louvarz v. Dominion of Canada General Insurance Co. (February 25, 2000, FSCO File No. A98-000446, Arbitrator David Evans). This arbitration considered a claimant’s claim for income replacement and other benefits under the SABS where credibility was an issue.

Kingsway General Insurance Co. v. Dominion of Canada General Insurance Co. (January 11, 2000, unreported, Ont. S.C.J., Sachs J.). This decision, on appeal from a private arbitrator’s award, considered the relationship between Rules 3 and 17 of the Fault Determination Rules in a Loss Transfer dispute, and in particular, the phrase “involved in the incident”.

Dominion of Canada General Insurance Co. v. Zurich Insurance Co. (September 27, 1999, Private Arbitrator Robinson). This decision considered whether a mother was principally dependent on her son under the SABS priority rules.

Grummet v. Federation Insurance Co. of Canada (1999), 46 O.R. (3d) (S.C.J.). This case considered whether a race car was an "automobile" for the purpose of claiming Statutory Accident Benefits.

Christakos v. Dominion of Canada General Insurance Company (1997), O.T.C. 241 (Gen. Div.). In this case, the court considered its jurisdiction to stay a FSCO SABS Arbitration and ruled on the requirement of a SABS claimant to mediate a dispute before commencing an action or arbitration.