Elliot Seth Birnboim

The defendant insurer appealed a trial judgment finding that the plaintiff, an innocent purchaser of a stolen vehicle, had an insurable interest in the vehicle after it was subsequently stolen from him.

The plaintiff cross-appealed the quantum of damages.

The Divisional Court upheld the trial judge's finding that the plaintiff had a possessory interest constituting an insurable interest, applying the factual expectancy test.

The majority of the court allowed the cross-appeal on damages, increasing the award to $25,900 to reflect the fair market value of the vehicle and rental expenses, rather than limiting recovery to the cash amount paid.