DATE: 20060223
DOCKET: C44237
COURT OF APPEAL FOR ONTARIO
RE:
B. McCURDY TRUCKING INC. (Respondent) – and – SOUTHWESTERN EQUIPMENT INC., ZURICH INSURANCE COMPANY, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO BY THE MINISTRY OF TRANSPORTATION, WARD’S FARM EQUIPMENT LTD., 1377503 ONTARIO LIMITED, CANADIAN GENERAL INSURANCE, ING INSURANCE COMPANY OF CANADA, JOHN F. SMITH INSURANCE BROKERS (1982) INC., MIKE PULLES, ROBERT WARD, ROBERT SCOTT and ORR INSURANCE BROKERS LTD. (Appellants)
BEFORE:
CATZMAN, MOLDAVER and ARMSTRONG JJ.A.
COUNSEL:
John D. Strung
for the appellant
J. Sebastian Winny
for the respondent
HEARD & RELEASED ORALLY:
February 20, 2006
On appeal from the order of Justice R.D. Reilly dated September 16th, 2005.
E N D O R S E M E N T
[1] The respondent purchased two tractor-trailers which, apparently unknown to it, had been stolen. The respondent added the trailers to its fleet insurance with Zurich Insurance Company and paid the increased premium.
[2] Ultimately the tractors were seized by the police, and returned to their rightful owners. The respondent claimed for the loss of the trailers under its fleet insurance policy.
[3] In our view none of the perils listed in the policy provides coverage for this kind of loss. Even if the loss could be described as a loss due to theft, there is no coverage because the theft occurred before the respondent obtained the insurance for the two trailers.
[4] We therefore allow the appeal, and set aside the order of Justice Reilly. In its place we would:
a) grant Zurich’s motion for summary judgment and dismiss the action of the respondent against Zurich, and
b) dismiss the respondents’ motion for summary judgment.
[5] The appellant is entitled to its costs of the appeal and the costs of the proceedings below fixed in the total amount of $20,000 inclusive of disbursements and G.S.T.
“M.A. Catzman J.A.”
“M.J. Moldaver J.A.”
“R.P. Armstrong J.A.”