V & G Polled Herefords v. Lloyd's Non-Marine Underwriters, Davies (Ken) & Associates Insurance Services Ltd. and McFadyen & Sons Agencies Ltd., (1988) 68 Sask.R. 214 (CA)

• Judge: Vancise, Wakeling and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 13, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 68 Sask.R. 214 (CA)

V&G Polled Herefords v. Lloyd's (1988), 68 Sask.R. 214 (CA)

MLB headnote and full text

Garnet Keller (plaintiff/respondent) v. Non-Marine Underwriters of Lloyd's (defendants/appellants), Ken Davies & Associates Insurance Services Ltd. (defendant/appellant) and McFadyen & Sons Agencies Ltd. (defendant/respondent)

(No. 9282)

Indexed As: V & G Polled Herefords v. Lloyd's Non-Marine Underwriters, Davies (Ken) & Associates Insurance Services Ltd. and McFadyen & Sons Agencies Ltd.

Saskatchewan Court of Appeal

Vancise, Wakeling and Sherstobitoff, JJ.A.

May 13, 1988.

Summary:

The plaintiff insured a bull in which it had a partial interest. The bull became ill and had to be slaughtered. The plaintiff commenced an action under a livestock insurance policy against (1) its agent, McFadyen & Sons Agencies Ltd., (2) Ken Davies & Associates Insurance Services Ltd., the firm which placed the policy with the insurer, Lloyd's of London, and (3) the insurer, Lloyd's of London.

The Saskatchewan Court of Queen's Bench, in a decision reported in 51 Sask.R. 81, dismissed the plaintiff's action against McFadyen & Sons Agencies Ltd. and Ken Davies & Associates Insurance Services Ltd. The court, however, allowed the plaintiff's action against the insurer, Lloyd's. Lloyd's and Ken Davies & Associates appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Insurance - Topic 515

Agents - Liability of - Negligence - Duty of agent to insurer as principal - A bull tested positive for leukosis, but never showed any other signs of the disease - The owners informed their insurance agent of the test - The agent placed insurance with Lloyd's through Ken Davies & Associates (Davies) - The agent did not inform Davies of the test - The Saskatchewan Court of Appeal affirmed that the nondisclosure by the agent of the positive leukosis test was not a material circumstance rendering the policy void - The court noted that there was no evidence to show that had Davies or Lloyd's been informed of the test that insurance would have been refused or a higher premium charged - The court also noted that leukosis played no part in the animal's death - See paragraphs 14 to 43.

Insurance - Topic 3258

Payment of insurance proceeds - Actions - Parties - Status to maintain action - The plaintiff and Wildcat Ranch each owned an interest in a bull - Their insurer issued one policy on the bull naming both parties as insureds - The bull died - The plaintiff sued the insurer - The insurer argued that the policy was enforceable by both insureds only, not by one alone - The Saskatchewan Court of Appeal affirmed that the plaintiff had status to sue on its own, where the parties did not request one policy, they each had a distinct interest in the bull (not joint ownership), they were not in partnership, and each were billed for their respective shares of the total premium - See paragraphs 3 to 13.

Interest - Topic 5304

As damages - Interest on payment of money or debt withheld - Amount due under an insurance contract - An insurer withheld payment from an insured, alleging, inter alia, that the insured's claim was fraudulent - The allegations were totally unfounded and the claim of fraud was abandoned before trial - Other reasons for nonpayment such as an allegation of a material nondisclosure were also with out merit - The Saskatchewan Court of Appeal affirmed that the insured was entitled to interest - See paragraphs 86 to 95.

Cases Noticed:

McCammon v. Alliance Assurance Company Limited, [1931] 2 W.W.R. 621; [1931] 4 D.L.R. 811 (Sask. C.A.), refd to. [para. 5].

Piedmontese Breeding Co-operative Limited v. Madill, [1985] 5 W.W.R. 289; 40 Sask.R. 144 (Sask. C.A.), appld. [para. 7].

Statutes Noticed:

Insurance Act, R.S.S. 1978, c. S-26, sect. 103(6) [para. 5].

Counsel:

H. Kloppenburg and M. Kobrynsky, for the appellant;

M. Fisher and K.J. Bell, for the respondent Keller;

M. Laprairie, for the respondent McFadyen & Sons.

This appeal was heard before Vancise, Wakeling and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal, whose decision was delivered orally by Vancise, J.A., on May 13, 1988.