PUBLICATIONS AND CONFERENCESPublications
Stein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2011-10-01Me Jocelyn Aucoin
FAILURE TO DISCLOSE A LATENT DEFECT:
AN OMISSION THAT CAN DESTINE A REMEDY FOR FAILURE
INTACT COMPAGNIE D’ASSURANCE V. MAPP, 2011 QCCS 3929
The building owned by Intact Insurance Company’s insureds was completely destroyed by fire on June 29, 2007. On March 18, 2010, Intact filed a subrogatory remedy against Françoise Mapp, the seller of the building, her insurer, and Julie Charrette, the previous owner who had allegedly done faulty do-it-yourself work on the electrical system. By its action, Intact claimed the $211,231.02 indemnity it had paid its insureds.
In turn, Mapp and her insurer filed an action in warranty against Charrette. On March 22, 2011, Charrette filed an action in warranty and previous warranty against the people who had sold her the building, namely Bernard Ouellette...
Publication : 19 septembre 2011 Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2011-07-13Me Marie-Hélène Bétournay
DOES A REINSURER HAVE A RIGHT OF ACTION AGAINST THOSE RESPONSIBLE FOR THE CASUALTY?
This is the question the Court of Appeal answered in Boiler Inspection and Insurance Company of Canada v. H.A. Simons Ltd. 2011 QCCA 1194.
Domtar was covered by all-risk insurance policy with American Home Insurance Company (American) which in turn had taken out a reinsurance contract with Boiler Inspection and Insurance Company of Canada (Boiler). After a washing machine malfunctioned, American indemnified Domtar for close to $10,000,000.
In its original statement of claim in 1997, Boiler stated that:
| - | Domtar was insured by American; |
| - | American paid Domtar $8.5M; |
| - | Boiler reimbursed $8.5M to American under its reinsurance contract; |
| - | Boiler was legally and contractually subrogated in the... |
Stein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2011-06-01Me Henri Renault
125057 Canada Inc. v. Rondeau, 2011 QCCS 94
A BROKER’S ADVISORY DUTY: Ignorance does not excuse everything
A fire ravaged the premises of Tricots L.G. Ltée (“Tricots”) and the policy limits turned out to be insufficient for the additional rebuilding costs due to regulatory requirements, the value of the inventory, the value of the equipment and the loss of profits. Tricots blamed its broker for failing in his duty to advise and inform.
The defendant, who had been Tricots’ broker since the company was founded, met with the company manager every year to review the insurance file when it came time to renew the policy. The court bore in mind that [TRANSLATION] “[…] an insurance broker has a duty to inform and advise his client so the client can make informed and intelligent decisions.”
The...
Publication : 1er juin 2011 Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2011-03-28Me Catherine Cloutier
DAVIGNON V. SAVARIA, 2011 QCCA 446, 2010 QCCS 6443.
PUNITIVE DAMAGES FOR LATENT DEFECTS
The Court of Appeal recently dismissed an appeal from a Superior Court judgment ordering a seller to pay punitive damages for failing to disclose fungal contamination in a building sold without legal warranty in October 2008.
Some time after she moved in, Savaria learned from a former tenant that the building was contaminated with fungi. The tenant had had her lease cancelled in August 2007 after her doctor wrote a letter confirming a rapid decline in her state of health due to the contamination of the apartment. The letter also stated that the dwelling was unsanitary and required major repairs.
Troubled by the doctor’s letter and the deterioration in her own health since she had moved in, Savaria had a...
Publication : 28 mars 2011 Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2010-12-14Me Geneviève Allen
AN EXCEPTION TO THE WAIVER OF SUBROGATION STEMMING FROM THE ISSUANCE OF A WRAP-UP LIABILITY POLICY
Last October 15th, in the case of Intact, Compagnie d’Assurances v. Pétrifond Fondation Compagnie Ltée, 2010 QCCS 4916, Madam Justice Geneviève Marcotte of the Superior Court rendered an interesting decision dismissing the motions for dismissal of an action in subrogation instituted by Intact Insurance Company (Intact). In its action, Intact alleged that it was subrogated in the rights of EBC Inc. (EBC), the general contractor for the project in question, in view of the payment of an indemnity under a wrap-up liability insurance policy.
Justice Marcotte found that although the insurance policy which had been issued covered the defendants’ civil general liability and accordingly implied a...
Publication : 1er décembre 2010 Texte completSUPREME COURT RULES…CONSTRUCTION DEFECTS: PROPERTY DAMAGE? ACCIDENT?
2010-10-07Me Maud Rivard
In the decision in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, rendered last September 23rd, the Supreme Court looked at an insurer’s obligation to defend its insured, a general contractor, which had been sued by an owner alleging construction defects. The owner alleged that there were construction defects in the building’s shell that caused major damage from water infiltration (rot, infestation and general deterioration of the buildings). Progressive, whose liability insurer, Lombard, had denied coverage on the ground that the claim did not involve property damage due to an occurrence or accident under the terms of the policy, applied to the courts for a declaration that its insurer owed it a duty to defend. The lower courts of British Columbia...
Publication : Le 7 octobre 2010 Texte completTHE COURT’S POWER TO IMPOSE SANCTIONS FOR IMPROPER USE OF PROCEDURE
2010-08-19Me Antoine P. Beaudoin
GARANTIE DES BÂTIMENTS RÉSIDENTIELS NEUFS DE L’APCHQ INC. VS. 9083-5745 QUÉBEC INC., 2010 QCCS 3013.
Recently, in the context of the filing of a motion under Articles 54.1 and following of the Code of Civil Procedure (“C.C.P.”) for the dismissal of the defendants’ defence and completed file declaration, the Superior Court clarified the scope of the court’s power to sanction procedural impropriety. On July 6, 2010, Madam Justice Julien held that in Quebec there is no absolute right to go to court and that the opposing parties have a duty to be reasonably diligent in organizing and prosecuting their case.
In the said case, the defendants had decided to use dilatory tactics. For instance, in their defence pleadings, they made a blanket denial of all the facts alleged by the plaintiff, for...
Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2010-06-05Me Dominique E. Gagné
L’UNION CANADIENNE, COMPAGNIE D’ASSURANCES C. QUINTAL, 2010 QCCA 921.
IS A REMEDY IN SUBROGATION AGAINST A TENANT WHO CAUSED A FIRE IN A BUILDING UNDERMINED BY THE FACT THAT THE TENANT WAS PAYING THE PREMIUMS ON THE INSURANCE POLICY TAKEN OUT BY THE LANDLORD?
Mrs. Quintal, the tenant of a single-family dwelling, obtained permission from the landlady to install a slow-combustion wood stove. When the landlady saw how her insurer’s premiums rose as a result, she made a verbal request to the tenant for reimbursement of the difference, and the tenant acquiesced.
A fire destroyed the house and it was established that it was caused by the negligence of the tenant’s daughter, who had placed some wood too close to the stove.
The Superior Court dismissed the action in subrogation brought against...
Stein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2010-02-01Me Jocelyn Aucoin
HARVEY v. COMPAGNIE D’ASSURANCES ING DU CANADA, 2009 QCCS 2871
The Superior Court recently clarified the scope of the vacancy concept when applying a damage insurance exclusion
After a house was damaged by water, the insurer refused to indemnify the insured, alleging that the house had been left vacant. Since this condition constituted an exclusion, the insurer had to show under the balance of probabilities, that it applied.
To determine whether the exclusion applied to the house, which was under renovation, the Court reviewed the relevant jurisprudence on the concept of vacancy and reiterated the following statements of principle:
A residence is unoccupied, but not vacant, if that state is only temporary and is directly related to its occupancy or use by the person who lives or will be...
Stein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2009-12-12Me Jacques Blanchard
ELOPAK CANADA INC. v. CASCADES CANADA INC. 2009 QCCS 4981
THE DUTY TO DEFEND
Cascades Canada Inc. was sued by Elopak Canada Inc. for having manufactured contaminated milk cartons. The plaintiff sold milk cartons to Aurora Organic Dairy. Elopak alleged that the milk was contaminated due to the presence of benzophenone in the lacquer Cascades utilized to process the cartons. Having had to indemnify Aurora for its damages, Elopak sued Cascades. Cascades denied any liability and called Kelstar Enterprises Inc. in warranty, maintaining that the fault had been committed by that company as the supplier of the ink and lacquer utilized to manufacture the milk cartons. Cascades also called the distributor, Artega Kelstar Canada Inc., in warranty as well as its insurer. Artega’s insurer refused to...
Publication : Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2009-08-05Me Henri Renault
Basque vs. Alpha Compagnie d’Assurances, 2009 QCCA 739;
Caron vs. Alpha Compagnie d’Assurances, 2009 QCCA 740 and
Pellerin vs. Alpha Compagnie d’Assurances, 2009 QCCA 744.
LOSS OF BUILDING DUE TO A LATENT DEFECT: THE COURT OF APPEAL CLARIFIES THE EXTENT OF THE DAMAGES THAT CAN BE CLAIMED
On November 13, 2000, a house insured by Alpha, Compagnie d’Assurances Inc. was heavily damaged by a fire caused by a construction defect in the chimney. After indemnifying its insureds, Alpha brought an action in subrogation against the successive sellers of the property, Jean-Marc Basque, Denis Caron and François Pellerin.
The sellers argued that their obligation to warrant against latent defects only pertained to the asset affected by the latent defect, namely the fireplace, and that therefore their...
Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2009-06-01Me Marie-Hélène Bétournay
Simard vs Dupuis & Al., 2009 QCCS 1564
THE REPRESENTATIVE'S DUTY TO ADVISE AND THE INSUFFICIENCY OF INSURANCE COVERAGE
Mr. Justice Normand Gosselin recently had to determine if an insurance representative and his employer failed in their duty to counsel Plaintiff Simard by not providing her with insurance coverage corresponding to her needs and more particularly, by not recommending an insurance coverage corresponding to the value of the apartment building she had acquired, which was destroyed by a fire.
The Defendants, while admitting that the insurance coverage was insufficient since the building was only insured for $216,000.00 whereas its reconstruction cost was $525,057.93, denied all liability for the reason that it was the Plaintiff who refused to increase the insurance coverage....
Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2009-04-01Me Dominique E. Gagné
OPTIMUM, SOCIÉTÉ D'ASSURANCES INC.
VS PLOMBERIE RAYMOND LEMELIN INC., 2009 QCCA 416
OR THE UNNAMED INSURED UNDER THE BUILDERS’ RISK INSURANCE POLICY
The contractor subscribed to a broad form of a builders’ risk insurance policy. He was the only named insured under the policy, and was covered for a year regardless of the number of projects undertaken. The premium had been calculated for only one insured. Following a water damage, possibly caused by a subcontractor’s negligence, the insurer indemnified and sued the subcontractor who, in turn, plead that he was an unnamed insured under the terms of the policy and that the insurer could not be subrogated against him. On March 5, 2009, the Court of Appeal, by a split judgment, agreed with the subcontractor's position.
Based on the leading...
Publication : Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2009-01-23Me Luc Rancourt
AXA ASSURANCES INC. V. GROUPE DE SÉCURITÉ GARDA INC., 2008 QCCS 6087
The Superior Court has recently decided that an employer was liable for the damages caused by its employee, a security agent who voluntarily lit up a fire in a building under his supervision.
The Court considered that the enterprise which creates a potentiality of damages by he use of its agent must be liable for such a risk and that it is necessary to motivate the employer to control the conduct of its agents.
In order to determine if the agent's intentional fault must be considered as committed in the performance of his duties as provided for in article 1463 C.C.Q., the Court outlines the following factors:
- The opportunity that the enterprise afforded the employee to abuse of his or her power;
- The extent to which the...
Stein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2008-12-01Me Maud Rivard
ST. LAWRENCE CEMENT INC. V. BARRETTE, 2008 SCC 64
The Supreme Court recently decided that liability in respect of neighborhood disturbances under section 976 Q.C.C. must be considered a no-fault liability
A class action based on neighborhood disturbances was instituted against a cement plant by residents living nearby that were complaining about problems with dust, odors and noise. They argued that these annoyances were interfering with the enjoyment of their property even if they had no consequences on their health or the integrity of their property. When the cement plant opened in the 50's, there were few houses built in that area. When the respondents moved, they apparently were not aware that they would be exposing themselves to such important annoyances. The cement plant operated...
Publication : Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2008-10-01Me Antoine P. Beaudoin
THE INSURER'S POWERS OF INVESTIGATION - THE IMPACT OF THE DECISION UTICA MUTUAL INSURANCE COMPANY VS ASPLER, GOLDBERG, JOSEPH LTD., 2008 QCCS 3811
May the insurer, while conducting its investigation, force its insured to participate in a «statutory examination»? On August 28, 2008, Ms. Justice Nantel of the Superior Court rendered a decision in which she specifies that the insured's refusal to submit to a statutory examination may not be qualified as a breach of its duty to cooperate provided for in article 2471 C.c.Q., which article requires the insured to furnish its vouchers and attest under oath to the truth of them.
In this case, the insurer has informed its insured that it wanted to proceed with a statutory examination of one of its representatives. The insured, based on its...
Publication : Texte completStein Monast Jurisprudence Bulletin - In Insurance and Civil Liability Matters
2008-07-18Me Claude Ouellet et Me Jean-Félix Brassard
GROUPE DMR INC. VS KANSA GENERAL INTERNATIONAL INSURANCE COMPANY LTD AZ-50488250, April 29, 2008 (C.A.)
Within the context of a professional liability action, the Court of Appeal has recently expressed its opinion on the concrete application of the Insurer's duty to defend where the alleged faults are partially covered by the insurance policy.
In order to determine if the duty to defend exists, the Motion to institute proceedings and its exhibits must be analyzed, the allegations must be considered and held to be proved and must be given the broader possible scope.
Four situations may occur:
- The claim appears totally covered by the policy. In that situation, the Insurer must defend its Insured.
- The claim clearly does not fall within the coverage or is specifically excluded from the...