The estate of a deceased boat operator sought a declaration requiring the insurer to defend and indemnify it against a passenger's personal injury claim arising from a fatal boating accident.
The court held that no duty to defend arose because the policy language stating the insurer would settle or defend claims 'as we consider appropriate' did not create a binding obligation to defend every action.
The court further held that there was no duty to indemnify because the policy excluded coverage where the vessel was operated illegally, and the deceased had operated the vessel with a blood-alcohol level far above the legal limit under s. 253(1)(b) of the Criminal Code.
The application was dismissed and costs were awarded to the insurer.
