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An insurance contract providing coverage for vicarious liability of an employer does not provide coverage for claims alledging negligence against the employer. Written on March 19, 2010, by admin.

The appeal of a decision finding that an Insurer was not obligated to defend or indemnify the Insured for claims arising from the Insured’s own negligence was dismissed. A contractor was required under the contract to purchase the insurance protection for the Insured in relation to the work done under the contract, but coverage under the policy was limited to vicarious liability for the acts of the contractor.

Ontario (Minister of Transportation) v. Canadian Surety Co., [2009] O.J. No. 5487, December 22, 2009, Ontario Court of Appeal, E.A. Cronk, R.A. Blair and H.S. LaForme JJ.A.

Under a contract between the provincial crown as represented by the Minister of Transportation (the “MOT”) and a general contractor for the repair and paving of a highway, the contractor was required to obtain insurance coverage of one million dollars ($1,000,000) to protect the MOT for any claims arising from acts or omissions by the contractor or its agents during the execution of the contract.  This insurance was provided by the Canadian Surety Company (“CSC”).  The MOT was also insured under a separate comprehensive general liability policy issued by Kansa General International Insurance Company (“Kansa”).  In a separate action, an individual was awarded damages against the contractor for injuries he suffered when his vehicle left the pavement on the highway.  Just prior to the accident, the MOT had received information from an inspection regarding the highway where the accident occurred but had failed to act on the informaiton.  In third party proceedings, the MOT was ordered to indemnify the contractor for 50% of the damages due to its negligence in failing to act on that information.  The MOT and Kansa subsequently brought this action seeking a declaration that CSC was obliged to defend the MOT in the accident litigation and the third party proceedings, to pay the costs associated with the MOT’s counterclaim against the contractor, to indemnify the MOT in respect of the damages awarded in the accident litigation, and to indemnify Kansa for all amounts previously paid to satisfy the claims asserted by the contractor and the injured party.  The trial judge found that the certificate of insurance issued by CSC  provided coverage only for liability claims where the MOT was liable for some act or omission of the contractor but not for liability arising independently of the contractor’s actions.  The MOT and Kansa appealed the decision.

The Court of Appeal dismissed the appeal.  It found that the specific wording of the certificate of insurance and the CSC policy limited the coverage available to the MOT under that policy to claims based on the MOT’s vicarious liability for the acts and omissions of the contractor and its representatives.  As the liability findings made against the MOT in the accident litigation did not engage vicarious liability, but rather acts or omissions of the MOT’s own personnel, they did not fall within the scope of the CSC policy.

The Court of Appeal also noted that the MOT had sought and obtained its own comprehensive general liability coverage through Kansa, which would have been unnecessary had the parties intended or expected the CSC policy to respond to independent negligent acts by the MOT.  The court upheld the trial judge’s finding on the evidentiary record that it “was the commercial expectation of the parties and the commercial reality of their legal relationship” that the CSC policy only protected the MOT against liability for the contractor’s actions and not for independent negligent acts of the MOT.

Finally, the Court of Appeal upheld the trial judge’s finding that the MOT’s and Kansa’s decision to delay in pursuing the claim against CSC until after final judgment in the accident litigation was prejudicial to CSC and as a result now precluded Kansa and the MOT from pursuing the claim.

This case was originally summarized by Emily M. Williamson and edited by David W. Pilley of Harper Grey LLP.

Big Doings at MSU Veterinary College Written on March 19, 2010, by admin.

Some of you might have read a post I did a while back on a dog named Katie that went in for a routine spay at her Vet's office and ended up at the Michigan State University College of Veterinary Medicine's intensive care unit. She developed a life threatening bleeding disorder after the surgery and spent over a week in intensive care. Her total bill for Veterinary services was $18,410.00. That's the biggest Vet bill I've ever heard of! 

Katie, along with 35 other "Miracle" Pets will be honored at MSU's Teaching Hospital this Saturday, March 20.

NYC Canine to get Once-in-a-lifetime Opportunity! Written on March 19, 2010, by admin.

From my Google alerts:

"The Search is On to SPOT Dogs in the Big Apple for Walk-On Appearance for THE 101 DALMATIONS MUSICAL."

I love their intro, it's what caught my eye: "Rascally, fun loving local NYC canine gets once-in-a-lifetime opportunity to appear on stage during the curtain call of a Theater at Madison Square Garden performance."

We're talking about the fabulous and popular show, 101 Dalmations Musical, running from April 7-18th in NY.

Preceding the April showing of this musical, which has been traveling all over the country and which has fifteen rescued Dalmatians in it – Purina Dog Show Spotters are combing the streets of the Big Apple looking for playful, fun-loving dogs who have "star potential, a rascally demeanor and a unique appearance." I know you have one – but do you live in NYC?

If you do, and your dog is rascally and unique and fun-loving, hop over to Spotted by Dog Chow, and submit photos. Entry deadline is March 26th! Oh my! The prize is a curtain walk-on, among other great stuff. There will be five semi-fianlists (chosen by an independent panel) and the 101 Dalmatians Muscial trainers will choose the grand prize winner.

The winning pup's family also gets a prize! W00t! They receive a four-pack of VIP tickets to the show…and an opportunity to meet select cast members.

Get on over to the site and enter your pooch! Surely he or she is rascally and fun-loving! Surely!

Agents: What’s the Best Business Move You Have Ever Made? Written on March 19, 2010, by admin.

For one agent, it was relocating to a more upscale location in the heart of downtown. For another, it was investing in the very best agency management system. Another agent lists merging with an …

Read the rest of this great post here

Agents: What’s the Best Business Move You Have Ever Made? Written on March 19, 2010, by admin.

For one agent, it was relocating to a more upscale location in the heart of downtown. For another, it was investing in the very best agency management system. Another agent lists merging with an …

Read the rest of this great post here

Reliance upon an “Equivocal Interpretation of Case Law” to Deny a Defense Is Bad Faith, Washington Supreme Court Holds in Split Decision Written on March 19, 2010, by admin.

American Best Food, Inc. v. Alea London, Ltd. (Wash. S. Ct., March 18, 2010)

After Michael Dorsey was shot nine times at Café Arizona, a night club, the club owner instructed its security guards to remove him from the building. Mr. Dorsey sued Café Arizona, alleging that the security guards “dumped him on the sidewalk,” negligently exacerbating his injuries.

Café Arizona tendered Dorsey’s suit to its insurer, Alea London. Alea refused to defend, citing a policy exclusion for injuries or damages “arising out of” an assault or battery. Alea rejected Café Arizona’s argument that the exclusion was inapplicable to post-assault negligence, relying upon McAllister v. Agora Syndicate, Inc., 103 Wn. App. 106 (2000), a case where a similar exclusion was held applicable to a claim that a night club negligently allowed a violent patron to reenter the club after removing him. Alea wrote: “[U]nder McAllister, Washington courts would likely find the allegations of negligence not sufficient [to trigger coverage].” Café Arizona sued Alea, alleging bad faith, breach of contract, and violation of the Washington Consumer Protection Act, chapter 19.86 RCW. Alea prevailed on summary judgment, and Café Arizona appealed.

The Court of Appeals, Division One, held that the assault and battery exclusion did not apply, that Dorsey’s claims were covered, and that Alea’s refusal to defend was incorrect. The court distinguished McAllister as involving pre-assault negligence. However, the court held that bad faith was a jury question that depended on whether Alea’s interpretation of the exclusion was reasonable. The Washington Supreme Court accepted review.

The Supreme Court unanimously agreed with the Court of Appeals that the assault and battery exclusion did not apply. The court reasoned: “[I]t was irrelevant that the chain of events was caused by an assault; if the insured had acted exactly the same in response to [a] covered occurrence, liability could have been the same.” The court criticized Alea’s determination that it had no duty to defend, stating: “[A] balanced analysis of the case law should have revealed at least a legal ambiguity as to the application of an ‘assault and battery’ clause with regard to postassault negligence[.]”

A slim, five-justice majority of the court then went a significant step further and held that Alea’s reliance upon its interpretation of the case law to refuse to defend was bad faith, resulting in waiver of its policy limits. Referring to its 2007 holding in Woo v. Fireman’s Fund Insurance Co., 161 Wn.2d 43, the court rejected “the argument now advanced by Alea that an insurer may rely upon its own interpretation of case law to refuse to defend.” The court stated the familiar “unreasonable, frivolous, or unfounded” standard for bad faith, then held that “Alea’s failure to defend based upon a questionable interpretation of law was unreasonable and Alea acted in bad faith as a matter of law.”

The four justices who dissented from the bad-faith holding (including most of the dissenters from the 5-4 Woo decision) accused the majority of “conflating the duty to defend and the duty of good faith” and finding “per se liability” for bad faith. Believing that “bad faith determinations should be reserved for more culpable conduct, the dissenting justices reasoned: “Proof that an insurer failed to defend based on a questionable interpretation of law is proof only of breach of its duty to defend, not breach of its duty of good faith.”

Give Your Insurance Policy a Spring Cleaning Written on March 19, 2010, by admin.

At least once a year it’s a good idea to shake the cobwebs off your insurance policy documents and review your coverage. Here are some quick tips for making sure your polices are up-to-date and offering you the protection you need.
 What to look for in your:
Auto Insurance Policy
Review your coverage limits and make sure they [...]

Water damage arsising from a negligently designed drainage system may not be covered by under a property damage clause. Written on March 19, 2010, by admin.

An appeal was allowed from a declaration obliging an Insurer to indemnify the Insured for the cost of replacing a system that was damaged as a result of faulty design or installation of the system itself.

Ottawa-Carleton Standard Condominium Corp. No. 687 v. ING Novex Insurance Co. of Canada, [2009] O.J. No. 5467, December 21, 2009, Ontario Court of Appeal, K.M. Weiler, J.C. MacPherson and J.L. MacFarland JJ.A.

A condominium corporation sought a declaration that the cost of replacing a damaged standpipe system in the condominium complex was covered under the property section of its all-risk insurance policy issued by ING Novex Insurance Company of Canada (“ING”).  At trial, the judge found that the loss was covered by the policy and ordered ING to pay the entire replacement cost of the system.  ING appealed.

A standpipe system is a system of large pipes in high-rise building that supplies water to the sprinkler and fire hose systems on each floor of the building.  At trial, there was uncontroverted evidence that the standpipe system in question had been improperly designed and/or installed.  Two floods occurred as a result of those deficiencies when water hammers developed in the system, causing significant flood damage and damage to the system itself.  ING indemnified the condominium corporation for the losses resulting from the flood.  The condominium corporation subsequently replaced the entire standpipe system and brought this action seeking a declaration that the expense was covered by the policy.

At trial, the judge found that coverage under the policy was triggered as the damage to the standpipe system had been caused by the water hammer event in combination with the faulty/improper workmanship/design of the standpipe system.  On appeal, the Court considered whether the loss was "fortuitous", ie. was it a loss that would "not have occurred save for the unusual event not ordinarily to be expected in the normal course of things”?  A standpipe system, due to its intended function, is under considerable pressure and should be able to withstand sudden changes in pressure resulting in a water hammer effect.  The Court held that the loss in this case was not fortuitous in that it occurred because “the system failed to do what it was designed to do – it failed to keep contained water under pressure and it failed to do so because it was improperly designed and/or installed".  Had the system been properly designed and installed, it would have contained the water during the water hammer incident.  The Court concluded that the impact of the water hammer on the standpipe system could not be considered fortuitous and that the true cause of the  loss was the improper design and/or installation of the system.

The Court of Appeal further noted that the policy was not intended to provide coverage for events which predated the insurer “going on risk” and that at the time that ING had assumed the risk, the system was already flawed and therefore not capable of performing its intended purpose.  The trial judge had erred when he found that the cost of replacing the standpipe system was covered under the terms of the policy as the real cause of the loss, i.e. the faulty workmanship, had occurred prior to ING coming on risk.

The Court agreed that the loss, if covered, would have been excluded by the clause excluding loss or damage caused directly or indirectly by faulty or improper workmanship or faulty or improper design.  It then considered the application of s.99(3) of the Ontario Condominium Act which provided:

An exclusion in the insurance required by this section is not effective with respect to damage resulting from faulty or improper material, workmanship or design that would be insured but for the exclusion.

The Court of Appeal held that the trial judge had erred in concluding that the damage to the standpipe system itself was resultant damage stemming from both the water hammer event and the faulty/improper workmanship/design of the standpipe system.  The water hammer was not a fortuitous event in respect of the damage to the standpipe system as it was precisely the sort of occurrence the standpipe system ought to have been designed to withstand.  It held therefore that s.99(3) had no application in this case.

Finally, the Court held that the condominium corporation would only be entitled to recover the cost of repair or replacement of the part that was damaged, if the loss was covered.  There had been no evidence at trial that it was necessary to replace the entire system of 4 pipes when only 1 had been involved in the flood incident.  Without evidence that damage had been occasioned to the other 3 pipes, there was no basis on which the condominium corporation would be entitled to the replacement cost of the entire system.  Given the Court’s earlier finding that the damage to the standpipe system was the result of inherent defects in the system and not the result of a fortuitous event, the condominium corporation was not entitled to recover anything for the cost of replacing the system.

This case was originally summarized by Emily M. Williamson and edited by David W. Pilley of Harper Grey LLP.

Life insurance…it’s all in the family! Written on March 19, 2010, by admin.

Life insurance isn’t just for the breadwinner of your family. In fact, all of you (mom, dad, child, etc.) can benefit from having some type of life insurance coverage. Here’s why…

Breadwinner – The…



AccuQuote blog is brought to you by AccuQuote.com, a leading provider in term life insurance for people across the U.S. This blog is dedicated to providing you with valuable information from experts on the topics of insurance, financial planning and personal finance.

Appeals Court Sides with Texas Mutual on Sanctions in Work Comp Case Written on March 19, 2010, by admin.

The Texas Fifth District Court of Appeals in Dallas issued an opinion on March 16, 2010, ruling that sanctions imposed against Texas Mutual Insurance Company related to a workers' compensation …

Read the rest of this great post here

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