Chester Casimir Wydrzynski

The defendants (Insurers) moved for summary judgment to dismiss the plaintiff's (Freesen) claim for environmental property damage coverage.

The claim arose from an underground storage tank leak.

The Insurers denied coverage based on two exclusions: a storage tank exclusion and a non-compliance with statute exclusion.

The court granted summary judgment based on the storage tank exclusion, finding the policy's clear wording did not approve the tank as a covered location, despite disclosure in the application.

The court rejected the non-compliance exclusion argument due to insufficient evidence of willful non-compliance.

Costs were fixed at $17,500 for the defendants.

The defendant, Lloyd's Underwriters, brought a motion for summary judgment to dismiss an action by the plaintiff, 2689686 Ontario Inc., concerning a roof collapse at a property insured under a Builder's Risk policy.

The court found that the loss was caused by frost and heaving, a peril explicitly excluded by the policy.

The plaintiff failed to provide sufficient evidence to counter the defendant's expert opinion or establish an exception to the exclusion.

Consequently, the court granted summary judgment, dismissing the action against Lloyd's Underwriters.

The insurer brought a motion for summary judgment seeking a declaration that it owed no duty to defend or indemnify the insured vendor in an action alleging misrepresentation and breach of contract arising from the sale of a residential property with undisclosed prior fire damage.

The court applied established principles governing the duty to defend, including the “mere possibility” threshold and the requirement to determine the true nature of the claim rather than relying on the labels used in the pleadings.

Although the plaintiffs amended their statement of claim to remove the word “fraudulent” from the allegation of misrepresentation, the underlying facts necessarily implied deliberate deception because the vendor knew of a prior fire and an insurance payout.

The court held that the claim could only be characterized as intentional deceit, which fell outside the policy’s coverage for unintentional bodily injury or property damage.

Summary judgment was granted declaring that the insurer had no duty to defend or indemnify.

Following a jury trial arising from a motor vehicle accident involving an impaired driver, the plaintiff sought to sign judgment without applying the statutory deductible under s. 267.5 and s. 267.7 of the Insurance Act.

The plaintiff argued the tavern defendant had waived reliance on the deductible by objecting to proposed jury questions that would have apportioned liability solely between the driver and the tavern.

The court rejected the waiver argument, finding the jury’s answers effectively determined the tavern’s negligence at one percent and the driver’s responsibility at the balance.

Applying the principles in Sullivan Estate v. Bond, the court held that an unprotected defendant is liable only for its proportionate share of the statutory deductible.

Judgment was therefore to be signed with the tavern responsible only for one percent of the $30,000 deductible.

Following a jury verdict in a complex personal injury action arising from a motor vehicle accident involving a licensed establishment, the successful plaintiff sought partial indemnity costs exceeding $300,000.

The defendant argued that its offers to settle should affect the costs award and that the statutory deductible under s. 267.5(9) of the Insurance Act should be deducted from the damages when assessing whether settlement offers were exceeded.

The court held that the statutory deductible must not be subtracted when determining entitlement to costs, following appellate authority.

Although the defendant’s settlement offers did not comply with Rule 49.10 of the Rules of Civil Procedure, they remained relevant under Rule 49.13 as discretionary factors.

Considering proportionality, the complexity of the trial, the amount recovered compared to the amount claimed, and counsel conduct during trial, the court fixed costs at $150,000 plus HST and disbursements.