William Colin Empke

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The court considered whether the removal of an underground storage tank by the plaintiff, Fleetway Fuels Inc., was a “voluntary removal” under Endorsement No. 10 of an insurance policy issued by Liberty Mutual Insurance Company.

The court found that the removal was voluntary, as it was undertaken as a result of a contractual obligation in a commercial lease, not due to compulsion by law or governmental order.

The exclusion in the policy therefore applied, and the insurer was not required to indemnify the plaintiff for environmental cleanup costs discovered during the removal.

This is an appeal concerning the interpretation of a pollution exclusion clause in a commercial general liability insurance policy.

The appellant insurer argued that the clause applied to property damage caused by a liquid chlorine leak from the respondents' premises, asserting that the storage of chlorine constituted a known pollution risk.

The Court of Appeal upheld the application judge's finding that the exclusion did not apply, agreeing that for the clause to be triggered, the irritant or contaminant must enter the natural environment and necessitate clean-up costs.

The court concluded that the claim was essentially for negligence in the course of regular business, not an inherent pollution risk, and therefore the insurer had a duty to defend.

The plaintiffs sought court approval of a Pierringer agreement with the City of Ottawa and leave to amend their statement of claim.

The non-settling defendant, United Petroleum, opposed the agreement, arguing it would suffer prejudice by potentially bearing the insolvent co-defendant's share of damages due to joint and several liability.

The court approved the Pierringer agreement, finding the alleged prejudice speculative and emphasizing the policy objective of promoting settlements.

The court also granted leave to amend the pleading but required the City of Ottawa to remain in the style of cause with its original allegations for apportionment of fault.

This appeal concerned the limitation period for an underinsured motorist claim.

The appellant insurer sought summary judgment, arguing the claim was statute-barred, asserting that a demand for indemnification was made in April 2016.

The motion judge, relying on *Schmitz v. Lombard General Insurance Company of Canada*, found that the first valid demand for compensatory damages was made in February 2019, thus the limitation period began running in February 2019, making the action timely.

The Court of Appeal upheld the motion judge's decision, finding no basis to interfere with the factual findings or the application of *Schmitz*.

Intact Insurance brought a motion for leave to intervene as an added party defendant in an action arising from alleged water damage caused by its insured, Lucas Roofing.

Intact had previously defended the insured under a reservation of rights but denied coverage after the insured repeatedly failed to cooperate with the investigation and discovery process.

The plaintiff opposed the motion, arguing Intact would take a position adverse to its insured.

The court granted the motion, finding that Intact had a clear interest in the outcome under s. 132(1) of the Insurance Act and that no true prejudice would result to the existing parties.

This appeal concerned an insurer's duty to defend its insured, Panasonic Eco Solutions Canada Inc., against two breach of contract claims in an arbitration.

The professional errors and omissions policy excluded contractual liability unless the liability would exist in the absence of the contract.

The application judge found a duty to defend one claim (Engineering Agreement) but not the other (Proceeds Agreement).

The Court of Appeal allowed the insurer's appeal and dismissed the insured's cross-appeal, finding no duty to defend either claim.

The court held that the liquidated damages claim under the Engineering Agreement was purely contractual and the sole remedy, thus falling within the exclusion.

The claim under the Proceeds Agreement was for a contractual debt, and related negligent misrepresentation and unjust enrichment claims were also not covered by the policy.

The insured discovered water damage to its commercial premises on January 31, 2013 and reported it to its insurer the same day.

The insurer made certain payments under the policy and engaged in settlement discussions while continuing to investigate.

On July 22, 2013, the insurer denied the claim due to policy violations and exclusions.

The insured commenced an action on April 22, 2015.

The insurer moved for summary judgment arguing the action was statute-barred under the two-year limitation period.

The motion judge dismissed the motion, finding the limitation period did not begin to run until July 2013 when the insurer formally denied the claim.

The Court of Appeal allowed the appeal, holding that the motion judge erred in using the insurer's conduct after notification to displace the statutory presumption that the insured knew a proceeding was an appropriate means to remedy its loss as of February 1, 2013.

The court granted summary judgment dismissing the action as statute-barred.

The applicant, an umbrella insurer, sought reimbursement from the respondent, the primary insurer, for defence costs incurred in a U.S. trademark infringement lawsuit against their mutual insured.

The respondent had denied coverage based on "expected or intended advertising injury" and "intellectual property law or right" exclusions.

The court found that trademark infringement does not necessarily require intent to injure, and the claim included allegations of unintentional conduct.

It also determined that the intellectual property exclusion did not clearly apply because the advertising injury claim was a free-standing claim separate from other intellectual property claims.

The court concluded that the exclusions did not clearly and unambiguously preclude coverage, thus triggering the respondent's duty to defend.

The applicants sought a declaration that their homeowner's insurer had a duty to defend them in an underlying personal injury action.

The underlying action arose when a tree fell on a man at an uninsured property owned by the applicants.

The plaintiffs in the underlying action alleged the applicants were negligent in failing to hire a competent contractor to remove the tree.

The court held that this allegation could potentially fall within the 'personal actions anywhere in the world' coverage of the policy for the applicants' insured home, triggering the duty to defend.

The court ordered the insurer to defend the action with appropriate safeguards to avoid conflicts of interest, finding the request for independent counsel premature.

The appellant, Goodyear Canada Inc., appealed a motion judge's decision declining to adopt the American 'Stonewall Principle' into Ontario law.

Goodyear sought to hold its insurers liable for asbestos-related injuries occurring after 1985, when it could no longer obtain liability insurance for such risks.

The Court of Appeal dismissed the appeal, finding that the insurance policies unambiguously limited coverage to occurrences during the policy periods.

The Court held that adopting the Stonewall Principle would unfairly shift the risks of Goodyear's business decisions to the insurers, contrary to the express terms of the policies and public policy.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The insured was involved in a motor vehicle accident while impaired and in breach of a police undertaking to abstain from alcohol.

His insurer denied coverage, arguing the breach meant he was not 'authorized by law' to drive under Statutory Condition 4 of the automobile insurance policy.

The application judge declared the insurer was required to defend and indemnify the insured.

The Court of Appeal dismissed the insurer's appeal, holding that 'authorized by law' refers to the validity and terms of a driver's licence, not to personal undertakings given to police.

The appellants appealed an order dismissing their application for a declaration that the respondent insurance company had a duty to defend a third party claim.

The claim involved property damage allegedly caused by pollution from dry cleaner tenants at the appellants' shopping plaza.

The Court of Appeal upheld the application judge's finding that the claims asserted were either outside the scope of coverage or fell within the policy's pollution and owned-property exclusions.

The appeal was dismissed.

The appellant roofing company appealed a declaration that its insurer had no duty to defend an action brought by a motorcyclist who was injured when a ladder flew off the appellant's truck.

The insurer denied coverage based on an automobile exclusion in a rider to the commercial general liability policy.

The Court of Appeal dismissed the appeal, finding that the insurer was entitled to rely on the rider, which excluded coverage for bodily injury with respect to which a motor vehicle liability policy is required by law to be in effect.

The court held that loading and storing the ladder constituted the use or operation of an automobile, and the underlying claim did not allege concurrent non-automobile-related negligence.

The insurer appealed a motion judge's order requiring it to defend the insured against a claim for bodily injury arising from mould and bacteria exposure, and allowing the insured to choose its own counsel.

The Court of Appeal dismissed the appeal, finding that the policy's concurrent exclusion clause for mould did not clearly and unambiguously narrow the duty to defend where non-excluded perils (bacteria) were also alleged.

The Court also upheld the insured's right to choose its own counsel at the insurer's expense due to a reasonable apprehension of conflict of interest regarding the coverage issue.

The plaintiff was seriously injured in a motor vehicle accident in Ontario and later moved to Alberta, where she received further hospital care.

Alberta Health asserted a subrogated claim for the cost of her hospital expenses in Alberta.

The Court of Appeal held that while Alberta Health had a valid subrogated right under the Alberta Hospitals Act, the claim was barred by section 267(1)(b) of the Ontario Insurance Act, which prevents a plaintiff from recovering damages for payments received under a hospitalization plan.

Because the plaintiff's claim was barred, Alberta Health's derivative subrogated claim was also barred.

The appeal was dismissed.