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Insurer must defend where pleadings leave possibility of covered negligence claim.
The applicant sought a declaration that his insurer had a duty to defend him in a civil action arising from an altercation that resulted in an assault conviction and alleged personal injuries to the plaintiff.
The insurer denied coverage relying on policy exclusions for intentional or criminal acts.
The court applied duty‑to‑defend principles and held that where pleadings include a potentially independent negligence claim, an insurer must defend if there is a possibility that the claim could fall within coverage.
Because the underlying statement of claim pleaded both assault and negligence and it remained possible that liability could be established on a non‑intentional basis, the exclusion provisions could not yet be conclusively applied.
The insurer was therefore required to defend the action, except with respect to punitive or exemplary damages which were expressly excluded.
Plaintiffs awarded full indemnity costs against primary insurer for breach of duty to defend; Bullock order denied.
Following a summary judgment decision where the plaintiffs successfully obtained a declaration that the primary insurer was required to advance defence costs under a D&O policy, the court determined costs and pre-judgment interest.
The plaintiffs were awarded full indemnity costs against the primary insurer due to the breach of the duty to defend.
The court declined to issue a Bullock or Sanderson Order, finding it was the plaintiffs' decision to continue their claim against the excess insurers, who were awarded partial indemnity costs payable by the plaintiffs.
