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INSURERS - Duties - Duty to defend

Tuesday, April 11, 2017 @ 7:51 AM  

Lexis Advance® Quicklaw®
Appeal by Intact Insurance Company (Intact) from a declaration that it had a duty to defend a personal injury lawsuit brought by a claimant against the respondent Riocan Holdings (Riocan) arising out of a slip and fall allegedly caused by unsafe icy sidewalk conditions on Riocan’s property. Prior to the claim, Riocan had contracted with Think Green Alberta (TGA) to conduct snow removal and winter weather sidewalk maintenance on the property. The personal injury claimant named both Riocan and TGA as defendants. Intact was TGA’s insurer. Riocan was named as an additional insured under the Intact policy, as per the terms of the Riocan/TGA contract. The same contract contained a hold harmless agreement in Riocan’s favour. The judge found that the action was about a slip and fall on a surface for which responsibility had been delegated to TGA, such that Intact had a duty to defend Riocan. The judge interpreted the Riocan/TGA contract as providing that TGA was to ensure safety at all times in relation to snow and ice conditions. On appeal, Intact argued that the judge should have looked at the nature of each of the plaintiff’s specific claims. Intact took the position that those claims against Riocan reached farther and were broader in scope than its engagement of TGA under the contract. Intact also relied on its Certificate of Insurance (Certificate) to urge that it covered Riocan only in respect of the work performed by TGA under the contract, but that there was no coverage for Riocan as occupier. Also, Intact suggested that the judge erred in finding TGA responsible to remedy each and every hazard on the property, where the contract stipulated that TGA was only responsible to remove snow between 10 p.m. and 7 a.m., but not at 1 p.m. when the plaintiff fell.

HELD: Appeal dismissed. There was nothing in the wording of the Intact policy to suggest that Intact was entitled to refuse to defend Riocan if Riocan was sued as an occupier. Intact’s duty to defend Riocan did not depend on the adequacy of the plaintiff’s pleadings against TGA, but rather on the terms of the Certificate, which stated that Riocan was covered for claims arising out of work performed by TGA on Riocan’s behalf. There was an unbroken causation link between the alleged delicts of Riocan and the alleged personal injury to the claimant. There was no independent fault alleged against Riocan that would support an action in negligence absence the activities of TGA. Nothing in the Certificate operated to exclude defence coverage for Riocan in the event that allegations of liability were jointly made against both Riocan and TGA.

Riocan Holdings Inc. v Intact Insurance Co., [2017] A.J. No. 188, Alberta Court of Appeal, M.S. Paperny, F.L. Schutz JJ.A. and J. Strekaf J. (ad hoc), March 3, 2017. Digest No. TLD-Apr102017007