Fridays With Rogers Partners
Two of our articling students presented very interesting insurance cases this morning at our muffin meeting.
$500,000 Ring Stolen on a Beach
Micah Pirk O’Connell addressed a case involving an insurance claim for a stolen ring.
In Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, the plaintiff was at a resort in the Dominican Republic. He was reportedly wearing a ring that was appraised at over $500,000.
According to the plaintiff, while taking a late night walk on a beach, a man approached him and stole the ring.
The plaintiff submitted an insurance claim to AIG. The previous year, he had made an insurance claim to a different insurer for another very valuable ring.
AIG denied the claim on the basis that the circumstances of the stolen ring were suspicious.
The plaintiff succeeded on a summary judgment motion. The motion judge ordered AIG to pay the claim and to also pay punitive damages and substantial indemnity costs.
The motion judge did not consider the suspicious circumstances that were raised by AIG because AIG did not plead that the claim was fraudulent. The Court of Appeal held that this was an error.
Although the suspicious circumstances may have been relevant to a plea of fraud, they were also directly relevant to whether the plaintiff could prove his loss.
By ignoring the suspicious circumstances, the Court of Appeal stated that the motion judge reversed the burden of proof.
In addition, the motion judge erred by not permitting the insurer to amend its statement of defence to plead fraud.
As a result, AIG was successful in its appeal. The Court of Appeal held that the credibility of the claim and of the claimant is squarely in issue and requires a trial.
Abuse During Airplane Ride
Matthew Umbrio discussed an insurance coverage decision involving alleged abusive conduct by an employee.
In Southside Muay Thai Academy Corporation v. Aviva Insurance Company of Canada, 2019 ONSC 6086, Southside Muay Thai Academy and one of its employees were sued.
The plaintiff, who is a minor, alleged that, while on a flight back from Thailand following a training trip, the employee touched her in a sexual manner without her consent.
Aviva denied coverage to Southside and to the employee under an abuse exclusion in the insurance policy. On a coverage application, Justice Sossin ruled in favour of Southside.
One of the plaintiff’s allegations was that “Southside Muay Thai Academy was negligent in its failure to supervise the Plaintiff, ensure she was safe while on their premises and under their care and control, in particular on the flight from Thailand on or about May 1, 2017″.
Since the plaintiff pled negligent supervision against Southside for settings outside of the flight from Thailand, Justice Sossin held that there is a possibility that Southside could be liable for breaching a duty of care in situations not arising directly or indirectly from the alleged abuse.
As there was a possibility of coverage for a portion of the claim, Justice Sossin held that Aviva owes Southside a duty to defend.
