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Floods of 2017 : the concept of “all risks” insurance successfully challenged

by

Charles Mathieu

May 14, 2019 11:30

Promutuel deux-Montagnes, has been sentenced by the Court of small claims, march 18, to compensate the waterfront of Saint-Eustache after having refused to do so in the wake of the floods in the spring of 2017.

This is Maurice Charbonneau, president and attorney in Charbonneau, counsel, who had noted the existence of this judgment in the Journal of the insurance.

The affected Line Pigeon, who is a lawyer by profession, was trying to prove to a judge Denis Lapierre that the damage on his residence as a result of the torrential rains were not necessarily related to the rise of the flood waters. The basement of Mrs. Pigeon was flooded despite the fact that the water level of the river of the Oak had not reached his residence. This is also the case of other residences, some of which were non-riparian, which were flooded following the rainfall event.

“Line Pigeon has satisfied the burden of proof, in terms of insurance, requires him to demonstrate three things : the existence of a valid contract with the insurer, the occurrence of a loss normally covered and the extent of the damage resulting from the disaster,” wrote the judge Lapierre in his judgment.

Ms. Pigeon has earned a sum of $ 15,000. This is the maximum that an individual can go look at the small claims Court.

All-risk or not ?

The plaintiff, at the time of the facts, was with an “all risks” insurance, including a rider to protect against damage caused by water.

The endorsement D-3 of the insurance contract provided coverage protecting the insured against ” the penetration or infiltration sudden and accidental groundwater or surface water, including through the walls, the foundations, the floor of the cellar, sewer backup, or French drains and the swelling of the water table “, one can read in the decision made by the judge Lapierre.

The insurer argued that the damage caused by the increase of flood waters and by the overflow of a watercourse were not included. Mrs. Pigeon, for its part, claimed that all the types of losses typically covered would have been the cause, one way or another, the flooding of his basement.

Impossible to prove, beyond all doubt,

For the judge Lapierre, Promutuel deux-Montagnes has not been able to prove beyond a reasonable doubt that the overflow of the river of the Oak caused the water damage in the residence of the Line Pigeon. In addition, in a letter received by Mrs Pigeon at the time of the renewal of its insurance policy in 2016, Promutuel deux-Montagnes, described the cover of ” sufficient and adequate to his needs “.

The judge Lapierre added that the police came in opposition to the principle of the reasonable expectations of the insured. “To interpret the amendment D-3 as excluding any coverage for damage caused by causes simultaneous, one of which is excluded, is equivalent to removing all risk to the insurer under the contract “, can we in the judgment that he has written.

The case law restraint

To decide, the judge is in particular based on the case of Muir c. Magog (City of) in 2015. The judge Gabriel of Pokomandy dealt with the same insurance policy, and of the same amendment, for a similar case to that of Ms. Pigeon.

The judge had stated, in particular, that ” the amendment, which should normally allow applicants to have an additional protection by the terms used and its wording, gives them fewer rights than the general provisions of the contract “.

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