The moving party, a self-represented defendant in a motor vehicle negligence action, brought a motion seeking an order that the insurer of the vehicle's owner had a duty to defend him and was required to appoint and fund independent defence counsel of his choosing.
The insurer denied coverage on the basis that the moving party operated the vehicle without the owner's consent, while simultaneously funding and directing the defence of the vehicle's owner, whose defence asserted that the moving party lacked consent.
The court held that the duty to defend is triggered by the mere possibility that a claim falls within the policy, and that the consent issue remained live and unresolved on the pleadings; extrinsic interview evidence relied upon by the insurer was inadmissible as premature.
The court further found a reasonable apprehension of conflict of interest arising from the insurer's simultaneous denial of coverage to the moving party and defence of the co-defendant on an adverse theory.
The motion was granted in its entirety; the insurer was ordered to defend the moving party through independent counsel of his choosing at the insurer's expense.
