ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-17764
DATE: 2012-07-31
B E T W E E N:
Joey Boudreau, Lina Boudreau, Jessica Boudreau and Justin Boudreau
Lou Ferro, for Plaintiff/Respondent
Plaintiffs
- and -
Ontario Soccer Association, HKMB International Insurance Brokers Ltd. and Chubb Insurance Company of Canada
David E. Liblong, for Applicant, Defendant Chubb Insurance Company of Canada
Karen Chee, for Defendant, Ontario Soccer Association
Defendants
HEARD: at Hamilton June 14 th , 2012
LOFCHIK J.
[ 1 ] This is a motion brought under Rule 20 by the defendant Chubb Insurance Company of Canada for summary judgment dismissing the plaintiff’s action against Chubb.
[ 2 ] The plaintiff brings this action in respect of an accident which took place on or about February 26 th , 2008 in which he was rendered a paraplegic while playing soccer in a league operated by the Ontario Soccer Association (“The OSA”) at an indoor soccer field in Hamilton, Ontario. The field was owned and operated by HoJo Enterprises Inc. o/a Soccer World Hamilton.
[ 3 ] Chubb is a duly incorporated and licenced insurance company which carries on business as an underwriter of insurance policies. Chubb had issued a “Blanket Insurance Policy” to the OSA for a policy period of October 1, 2006 to October 1, 2007 which policy was subsequently renewed for a further 12 months to expire on October 1, 2008. Among the coverage afforded to the OSA members under the policy was a $40,000.00 for quadriplegia resulting from an accident occurring while the insured member was participating in a practice, game, exhibition game, tournament or other activities sanctioned by the OSA.
[ 4 ] Chubb received notice that the plaintiff, Joy Boudreau had sustained injuries, including a fractured neck rendering him a quadriplegic while participating in a soccer game on February 26 th , 2008. Chubb subsequently received invoices and receipts submitted by Mr. Boudreau for expenses incurred to perform renovations to his home to accommodate his condition and for chiropractic services. In compliance with the terms and conditions of the Policy which it had issued, Chubb made payment to Mr. Boudreau of $46,500.00 representing the maximum benefits provided under the Policy for quadriplegia, physical therapy, fracture and home renovation.
[ 5 ] The plaintiff alleges that Chubb was an insurance advisor and underwriter to the OSA and that as issuer of an insurance policy to the OSA it owed a duty to the plaintiff who was an insured person and the beneficiary of the coverage to “provide peace of mind as it is with any insurance company and insured person.”
[ 6 ] The plaintiff further alleges that Chubb entered into an advisory role to the OSA with respect to insurance coverage of its membership and sold a product which was “woefully inadequate to the risk.” It is alleged that Chubb entered into a legal relationship with the plaintiff as an insurer of the plaintiff’s risk of loss from the cost of healthcare and related services in the event of injury and issued a Policy that it knew or ought to have known was “woefully inadequate to the risk.”
[ 7 ] Counsel for the plaintiff argues that Chubb should have refused to put the Policy forward even if the OSA wanted to purchase the Policy as the Policy was “woefully inadequate”.
[ 8 ] The Statement of Claim also alleges that as a result of Chubb’s breach of duty to provide peace of mind, the plaintiff has suffered “unnecessary mental distress, anxiety, humiliation, fear of further loss, lack of sleep and anguish as it relates to his ability to pay for the much need care he requires for the rest of his life” and claims aggravated damages against Chubb. This claim for aggravated damages, however, was withdrawn by plaintiff’s counsel at the hearing of the motion.
[ 9 ] Plaintiff’s counsel argued that as Chubb and the OSA’s insurance broker, the defendant HKMB International Insurance Brokers Ltd. made a joint presentation to OSA, the owner of the insurance policy, on Chubb letterhead, this established a legal nexus between them making HKMB Chubb’s agent for whose negligence Chubb is liable.
[ 10 ] Chubb pleads that in August 2006 it was approached by a representative of the defendant HKMB International Insurance Brokers Ltd. (“HKMB”), to review existing accident death and dismemberment and excess medical benefits coverages provided to the OSA and its members by its existing insurer. Specifically, Chubb pleads that it was asked if it could provide higher limits for the same premium being paid by the OSA for coverage under the expiring policy. Chubb pleads that at all material times, HKMB acted as the broker and agent for the OSA and at no time prior to issuance of the Policy did anyone at Chubb meet or communicate directly with any OSA representatives of its members to discuss the OSA’s insurance needs. It also pleads that at no time was anyone at Chubb asked by any OSA representative to comment on whether the limits of coverage provided for accidental death and dismemberment and excess medical benefits under the expiring policy were adequate or appropriate for the OSA and its members.
[ 11 ] Chubb further pleads that it presented HKMB with a proposal for accident death and dismemberment and excess medical benefits coverage for the OSA and its members, which provided expanded coverage to that provided by the expiring policy at an annual premium of $75,000.00, which was consistent with the annual premium paid under the expiring policy. The limits of coverage which Chubb could provide for accident death and dismemberment and excess medical benefits was primarily influenced by the premium which the OSA wanted to pay for such coverage. Chubb further pleads that the terms and limits of coverage set out in the Chubb proposal were consistent with other group plans offered by the market to sports associations with significant youth membership.
[ 12 ] Chubb pleads that the OSA accepted the Chubb proposal and as a result Chubb issued a Blanket Accident Insurance Policy to the OSA for the policy period October 1, 2006 to October 1, 2007, which policy was subsequently renewed a further 12 months to expire on October 1, 2008. Among the coverages afforded to OSA members under the policy was a $40,000.00 benefit for quadriplegia resulting from an accident occurring while the insured member was participating in a practice, game, exhibition game, tournament or other activities sanctioned by the OSA.
[ 13 ] The motion record contains an affidavit of Kristen Ballentine which confirms under oath the facts surrounding the issuance of the Chubb policy which are in accordance with the facts as pleaded in the statement of defence filed on behalf of Chubb. There has been no cross-examination on this affidavit.
THE LAW
[ 14 ] The appropriate test to be applied in a motion pursuant to Rule 20 is whether the moving party has shown that there is no genuine issue requiring a trial and, therefore, summary judgment should be granted.
Rule 20.04(2) of the Rules of Civil Procedure
Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC) , [1999] 3 S.C.R. 423, at para. 27
[ 15 ] It is no longer sufficient that the plaintiff show there is a triable issue. The court must also consider whether a trial is the most appropriate forum to decide the issue or whether it is more appropriate that it be decided without a trial.
Mehdi-Pour v. Minto Developments Inc., 2010 ONSC 5414 () , [2010] O.J. No. 4948 (S.C.J.), aff’d [2001] O.J. No. 2845 (Div. Ct.) at para. 16
[ 16 ] Where the court finds that there is no genuine issue requiring trial, the moving party is entitled to summary judgment as a matter of law.
Rule 20.04(2) of the Rules of Civil Procedure
Irving Ungerman Ltd. and Karl Ungerman Ltd. v. Galnis and Haut , 1991 7275 (ON CA) , [1991] O.J. No. 1478 (Ont. C.A.), paras. 14 and 15
[ 17 ] Where the court is satisfied that the only genuine issue is a question of law, the court has authority to determine the question and grant judgment accordingly.
Rule 20.02(2) of the Rules of Civil Procedure
Dawson v. Rexcraft Storage and Warehouse Inc ., 1998 4831 (ON CA) , [1998] O.J. No. 3240 (C.A.) at para. 13
[ 18 ] A motions judge may now weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence in determining whether there is a genuine issue requiring a trial with respect to a claim or defence.
Combined Air Mechanical Services Inc. v. Flesch, 2001 O.N.C.A. 764 at para. 36
[ 19 ] The purpose of the new Rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case will provide an appropriate means for effecting fair and just resolution of the dispute before the court.
Combined Air Mechanical Services Inc. v. Flesch , supra at para. 38
[ 20 ] In order to determine if a trial is necessary, the motions judge must ask: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?
Combined Air Mechanical Services Inc. v. Flesch , supra at para. 50
[ 21 ] Rule 20.04 places an evidentiary burden on a responding party to go beyond mere allegations or denials in its pleadings and prove, in affidavit material or other evidence, “specific facts showing that there is a genuine issue for trial”. The respondent must “lead trump” or risk losing.
Rule 20.04 of the Rules of Civil Procedure
Dawson v. Rexcraft Storage and Warehouse Inc ., supra at paras. 7 and 17
1061590 Ontario Limited v . Ontario Jockey Club , 1995 1686 (ON CA) , [1995] O.J. No. 132 (C.A.), para. 35
[ 22 ] Faced with a summary judgment motion, the plaintiff must prove there is a genuine chance of success at trial by proving there is genuine evidence to support each element of the claim.
Mehdi-Pour v. Minto Developments Inc., supra at para. 18
[ 23 ] The motions judge is entitled to assume the record contains all the evidence the parties will present if there is a trial.
Dawson v. Rexcraft Storage and Warehouse Inc . , supra at para. 17
ANALYSIS
[ 24 ] The undisputed evidence before me is that, prior to issuance of the policy in question, no one at Chubb met or communicated directly with any OSA representatives or its members to discuss the OSA’s insurance needs, nor was anyone at Chubb asked by any OSA representative or member to comment on whether the limits of coverage provided for accident death and dismemberment and excess medical benefits under the expiring policy were adequate or appropriate to the OSA and its members. Chubb communicated only with the broker for OSA, which by the plaintiff’s own assertion at paragraph 28 in the statement of claim possessed “extensive expertise and experience in matters relating to sports injury facilities and risk in healthcare and related costs of players injury and in particular soccer as a sport activity.” Accordingly, the only evidence before this court is that Chubb did not “enter into an advisory role to OSA” with respect to placement of insurance coverage.
[ 25 ] When dealing with an experienced broker, the insurer owes no personal duty directly to the insured; the insurers only obligation to the insured is to issue a policy in accordance with the application submitted. In the present case Chubb’s only obligation to OSA was to issue a policy in accordance with the terms requested by OSA’s broker.
Drader v. Sebastian , 2009 SKCA 44 () , [2009] S.J. No. 214 (S.C.A) at paras. 48 and 60
Denys v. Saskatchewan Government Insurance , [2012] S.J. No. 53 (S.Q.B.) at para. 16
[ 26 ] The statement of claim baldly asserts that Chubb entered into an “advisory role to the OSA”. Bald assertions in the statement of claim are not evidence. The statement of claim further pleads that Chubb knew or ought to have known that the limits of the policy were “woefully inadequate”. The undisputed evidence establishes that the limits of coverage were primarily influenced by the premium the OSA wanted to pay for such coverage. In fact, the policy increased the coverage previously provided by the expiring policy for the same annual premium.
[ 27 ] The plaintiffs imply, but in no way support, the existence of a legal obligation imposed on an insurer represented by an experienced commercial broker to counsel an insured during contract negotiations regarding any perceived inadequacies of the requested insurance coverage. This argument has previously been rejected by way of summary judgment as disclosing no reasonable cause of action against an insurer.
Karamanolis et al. v. Prudential Insurance Co. Ltd. et al. (1983), 1983 1647 (ON SC) , 42 OR (2d) 752 (H.C.J.) at p. 4.
[ 28 ] The court is entitled to assume that the record before it contains all the evidence the parties will present if there is a trial. The plaintiff has not met the burden under Rule 20.02 to go beyond mere allegations in the statement of claim and to establish, by affidavit material or other evidence, that there is a genuine issue requiring a trial with respect to the claims asserted against Chubb. In my view there is no need for a trial to fully appreciate the issues and the evidence that pertain to these issues.
[ 29 ] Accordingly an order for summary judgment dismissing this action against the defendant Chubb Insurance Company of Canada will issue.
[ 30 ] So far as the issue of costs is concerned, I am prepared to receive written submissions according to the following timetable:
The defendant shall provide to the plaintiff a Bill of Costs together with brief written submissions not exceeding 5 pages within 2 weeks of this date.
The plaintiff is then to provide to the defendant submissions with respect to costs within a further 2 weeks.
The submissions of the plaintiff and the defendant shall then be filed with the court together with any reply submissions by the defendant by no later than 5 weeks from this date.
LOFCHIK J.
Released: July 31, 2012
COURT FILE NO.: 10-17764
DATE: 2012-07-31
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Joey Boudreau, Lina Boudreau, Jessica Boudreau and Justin Boudreau Plaintiffs - and – Ontario Soccer Association, HKMB International Insurance Brokers Ltd. and Chubb Insurance Company of Canada Defendants REASONS FOR JUDGMENT LOFCHIK J. TRL:mg
Released: July 31, 2012