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Case law in damage insurance : bit of a stir in 2018

by

Aurelia Morvan

11 February 2019 13:30

The year 2018 has not been marked by major changes in the case-law, according to the law firm Lavery.

The year 2018 follows in the same vein as 2017, where Bernard Larocque and Jonathan Lacoste-Jobin had made the same observation. Each year, Lavery is a review of the causes which have made the news legal insurance. The Journal of insurance has attended its annual review of the case law 2018 law of insurance, on the 8th of February, in the montreal offices of the firm.

A case goes to the Supreme Court

MESSRS. Laroque and Lacoste-Jobin, have put forward the 13 judgments. These cover a variety of concepts, from the obligation of defending, passing by the duty of cooperation of the insured, but also of the insurance of the condominium.

One of the judgments presented had been announced as to monitor as early as last year. This is the only made in 2018 by the supreme Court of Canada in the field of damage insurance. It concerns the trial of the hotelier Éconolodge Airport against its insurer, Lombard (now known under the name of Northbridge Insurance).

Two customers of the Éconolodge Airport were robbed of their car, left it in the parking lot of the hotel, in the framework of the formula ” lodging, parking, and flight.” One of the robberies took place in the winter of 2005, while the other occurred a year later.

The two customers were compensated by their insurer, respectively, Promutuel Portneuf-Champlain, AXA (now Intact) to the other. Subsequently, insurers were directed against the hotel, in order to recover the amount of compensation paid.

For its part, the hotelier has operated his own insurer, which, at this time, was Lombard. The latter denied the coverage Éconolodge Airport, based on the fact that his insurance does not cover the personal property in its custody or over which he has a power of direction or management.

In its judgment, the supreme Court first confirmed the responsibility of Éconolodge Airport for flight vehicles. In the framework of the service contract that linked him to the two clients, the hotel owner had the obligation to act with prudence and diligence. Therefore, it should have secure parking. What he has not done since, at the time of the flights, the parking lot was ” open-air, unfenced, unguarded and freely accessible “. Econolodge Airport is, therefore, ordered to refund the amounts paid by AXA and Crossing to the two clients of the hotel.

In a second time, the supreme Court confirmed that the exclusion for care, custody and control does not apply. Lombard is thus condemned to indemnify and hold harmless Econolodge Airport. In fact, the hotel owner was in possession of the ignition keys, to be able to move the cars in case of snow removal. However, this does not mean that he had the custody of these vehicles : there was only the holder.

The supreme Court explained that whether the delivery of the keys constitutes a transfer of custody, it is necessary to take account in particular of the reason why there has been a delivery of the keys. Here, the keys had been handed over to allow the snow removal of the parking lot. If the flights had taken place in the summer, the keys remained in the possession of the owners of the vehicles and would not be counted in the determination of the guard. In pronouncing this judgment, the supreme Court prevents the implementation or not of the exclusion is determined on the basis of the seasons.

The 13 judgments

Here is the complete list of the judgments being presented at this conference :

  • Interpretation and application of exclusions : 3091-5177 Quebec inc. (Éconolodge Airport) c. Co canada Lombard general insurance, 2018 SCC 43
  • Interpretation and application of exclusions : Arrangement with Orbit Technologies, inc., 2018 QCCA 1078
  • Commitment : Royal and Sun Alliance du Canada, société d’assurances c. Side (Masteraph Manufacturing), 2018 QCCS 613 (currently on appeal)
  • Duty to defend : 9071-3975 Quebec inc. c. Leprohon inc., 2018 QCCS 3434
  • Duty to defend : Société des traversiers du Québec c. Construction PMU inc., 2018 QCCS 3088
  • Duty to defend : Rosenstein c. Grey, 2018 QCCA 136
  • Insurance site / Police “wrap-up” : 9109-2916 Quebec inc. (Del-Cor (A & R )) c. The Union canadienne, compagnie d’assurances, 2018 QCCS 435
  • Insurance site / Police “wrap-up” : insurance Company Missisquoi c. Constructions Reliance inc. (Construction Reliance du Canada ltée), 2018 QCCS 1049 (currently on appeal)
  • Duty of cooperation of the insured : Anderson c. Intact, compagnie d’assurances, 2018 QCCS 3171 (currently on appeal)
  • Aggravation of risk / nullity : Fortier, c. SSQ general insurance company inc., 2018 QCCS 1495
  • Insurance in terms of co-ownership : insurance Company Missisquoi c. Aviva Canada inc., 2018 QCCS 2760
  • Insurance policy of the condominium : the condominium association of the condominium Verrieres VI c. Maddalon, 2018 QCCS 2312 (currently on appeal)
  • Automobile insurance act : Vaillancourt c. Blackburn, 2018 QCCA 896
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