Torchia v. Royal & SunAlliance Insurance Company of Canada Royal & SunAlliance Insurance Company of Canada v. Torchia et al. [Indexed as: Torchia v. Royal & SunAlliance Insurance Co. of Canada]
71 O.R. (3d) 511
[2004] O.J. No. 2316
Docket No. C40213
Court of Appeal for Ontario,
Doherty, Goudge and Simmons JJ.A.
June 3, 2004
*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs February 3, 2005 (Major, Fish and Abella JJ.).
Insurance -- Exclusion clause -- Plaintiff was named insured under homeowner's policy and sole owner of house and her husband was person insured by policy -- Policy excluding coverage for loss or damage resulting from intentional or criminal acts of any person insured by policy -- Plaintiff's husband convicted of arson after house was destroyed by fire -- Exclusion clause unambiguous -- Exclusion clearly not confined to loss suffered by insured who commits intentional or criminal act -- Exclusion clause applying despite plaintiff's lack of involvement in arson.
The plaintiff was the sole owner of a house and the named insured under a homeowner's policy. Her husband was a person insured under the policy. The policy excluded loss or damage resulting from the intentional or criminal acts of "any person insured by this policy". The plaintiff's husband was convicted of arson with intent to defraud the insurer after the house was destroyed by fire. The plaintiff's claim under the homeowner's policy was denied. She brought an action against the defendant insurer. A motion by the defendant for summary judgment dismissing the claim was granted on the basis that the claim was excluded by the exclusion clause. The plaintiff appealed, arguing that the exclusion clause was ambiguous as it could exclude either the loss of any insured resulting from the intentional or criminal act of a person insured by the policy or only a loss suffered by the person who committed the act.
Held, the appeal should be dismissed.
The exclusion clause was clear and unambiguous. It excluded losses suffered by any person insured by the policy which resulted from the intentional or criminal acts of an insured person. There was no language to suggest that the exclusion was confined to a loss suffered by the insured who committed the intentional or criminal act. That meaning could be achieved only by adding limiting words to the exclusion clause. The plaintiff was not entitled to recover under the policy.
APPEAL from a summary judgment of Sanderson J., dated October 20, 2003, dismissing an action. [page512]
Snaak (Litigation Guardian of) v. Dominion of Canada General Insurance Co. (2002), 2002 44897 (ON CA), 61 O.R. (3d) 230, [2002] O.J. No. 1438, [2002] I.L.R. Â1-4088 (C.A.), affg [2001] I.L.R. Â1-4000 (Ont. S.C.J.), distd Other cases referred to Godonoaga (Litigation Guardian of) v. Khatambakhsh (2000), 2000 5737 (ON CA), 49 O.R. (3d) 22, [2000] O.J. No. 2172, 188 D.L.R. (4th) 706, [2000] I.L.R. Â1-3864, 2 C.C.L.T. (3d) 1 (C.A.), supp. reasons (2000), 2000 16891 (ON CA), 50 O.R. (3d) 417, 191 D.L.R. (4th) 221, [2001] I.L.R. Â1-3913 (C.A.), revg [1999] I.L.R. Â1-3733 (Ont. S.C.J.)
Alfred M. Kwinter, for appellant. Jamieson Halfnight and Christopher McKibbin, for respondent.
The judgment of the court was delivered by
Background
1GOUDGE J.A.: -- The appellant Andrea Torchia and her husband Angelo Torchia lived in Rockwood, Ontario, in a house which was destroyed by fire on February 28, 1997. The appellant was the sole owner of the house.
2As a result of the fire, Mr. Torchia was convicted of arson with intent to defraud the insurer on February 28, 2000. There is nothing in the material to suggest that the appellant had anything to do with her husband's actions.
3When the appellant's claim under her homeowner's policy was denied by the respondent Royal & SunAlliance Insurance Company of Canada, she commenced this action. Sanderson J. allowed the respondent's motion for summary judgment, finding that the exclusion clause in the property damage section of the policy was clear and unambiguous and that it excluded the appellant's claim because the loss resulted from the intentional or criminal act of her husband who was a person insured by the policy.
4For the reasons that follow, I agree with this conclusion.
5The appellant is the named insured under the policy. Her husband is not a named insured.
The Policy Provisions
6The following provisions of the policy are relevant to this dispute:
DEFINITIONS OF TERMS
USED THROUGHOUT THE POLICY
You and your mean the person(s) named as Insured on the Coverage Summary page and, while living in the same household:
-- his or her wife or husband[.]
7In the Property Coverages section of the policy, the insured perils are described as follows:
You are insured against All Risks of direct physical loss or damage subject to the exclusions and conditions of this policy[.]
8In the same section the relevant portion of the exclusion clause is this:
We do not insure loss or damage:
- resulting from the intentional or criminal acts of, or the failure to act by, [page513]
(a) any person insured by this policy, or
(b) any other person at the direction of any person insured by this policy[.]
9In this court the appellant conceded that Mr. Torchia is a person insured by this policy. Because of the policy's definition of "you" that concession is appropriate.
The Appellant's Position
10However, the appellant argues that there is an ambiguity in the exclusion clause which must be interpreted against the insurer. The clause could exclude either the loss of any insured resulting from the intentional or criminal act of a person insured by the policy or only a loss suffered by the person who committed the act. The latter interpretation would put the loss suffered by Mrs. Torchia beyond the reach of the exclusion clause and Mrs. Torchia would be entitled to recover under the policy.
11In making this argument, the appellant relies heavily on Snaak (Litigation Guardian of) v. Dominion of Canada General Insurance Co. (2002), 2002 44897 (ON CA), 61 O.R. (3d) 230, [2002] O.J. No. 1438á(C.A.).
Analysis
12In my view, the appellant's argument cannot succeed given the wording of the exclusion clause.
13There is no doubt that exclusion clauses are to be construed narrowly and that any ambiguity must be construed against the insurer. However, this clause is clear and unambiguous. It excludes losses suffered by any person insured by the policy which result from the intentional or criminal acts of an insured person. There is no language to suggest that the exclusion is confined to a loss suffered by the insured who commits the intentional or criminal act. That meaning could be achieved only by adding limiting words to the exclusion clause. There is no ambiguity in the wording of this exclusion clause. Since the appellant has advanced no other basis for departing from its clear meaning, the exclusion clause must be given effect as written.
14Nor, in my view, is Snaak of any assistance to the appellant. In that case the question was whether the homeowners were protected against damage caused by the intentional act of their son who was also insured under the policy. This court found the exclusion clause in that case to be ambiguous, excluding either coverage for all insureds for damage caused by the intentional act of one insured or excluding only coverage for the insured committing the intentional act.
15There were two bases for the finding of ambiguity. First, the policy contained a "separate coverage" provision in these [page514] terms: "Coverage applies separately to each person who is insured". As found by this court in Godonoaga (Litigation guardian of) v. Khatambakhsh (2000), 2000 5737 (ON CA), 49 O.R. (3d) 22, [2000] O.J. No. 2172 (C.A.), such a clause could lead an insured to expect coverage except where his loss was due to his own intentional or criminal act.
16Second, this court in Snaak relied on the wording of the exclusion clause itself. In that case it read as follows:
This policy does not apply to
- INTENTIONAL OR CRIMINAL ACTS, meaning bodily injury or property damage resulting from:
-- an intentional or criminal act by any person or any named insured who is insured by this policy, . . . .
17In both respects, Snaak is different from this case. Neither basis for ambiguity exists in this case. First, there is no "separate coverage" provision applicable to the property coverage in the appellant's policy.
18Second, the exclusion clause in Snaak focuses first on the nature of the act and the actor triggering the exclusion. This may leave the possible implication that only the coverage accorded to that actor but to no other insured is excluded. The exclusion clause in this case is differently worded. It focuses first on the loss or damage excluded. It does so in language which can leave no implication that only the loss of the particular insured who commits the intentional or criminal act is excluded.
19Thus, I conclude that the exclusion clause here is clear and unambiguous and that Snaak is of no assistance to the appellant.
Disposition
20I would therefore dismiss the appeal with costs to the respondent on a partial indemnity basis fixed at $5,000 inclusive of disbursements and GST.
Appeal dismissed. [page515]