V & G Polled Herefords v. Lloyd's Non-Marine Underwriters, Davies (Ken) & Associates Insurance Services Ltd. and McFadyen & Sons Agencies Ltd., (1986) 51 Sask.R. 81 (QB)

• Judge: Hrabinsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 08, 1986
• Jurisdiction: Saskatchewan
• Citations: (1986), 51 Sask.R. 81 (QB)

V&G Polled Herefords v. Lloyd's (1986), 51 Sask.R. 81 (QB)

MLB headnote and full text

Garnet Keller, carrying on business under the name of V & G Polled Herefords v. Non-Marine Underwriters at Lloyd's designated in Canada as J.A. Mandill in his quality as Attorney in Canada for Non-Marine Underwriters Members of Lloyd's London England, Ken Davies & Associates Insurance Services Ltd., and McFadyen & Sons Agencies Ltd.

(Q.B. No. 41 A.D. 1984 J.C.M.)

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 Queen's Bench

Judicial Centre of Melville

Hrabinsky, J.

September 8, 1986.

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 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.

Insurance - Topic 515

Agents - Liability of - Negligence - Duty of agent to insurer as principal - A bull tested positive for leucosis, 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 Queen's Bench held that the non-disclosure by the agent of the positive leucosis 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 leucosis played no part in the animal's death - See paragraphs 14 to 43.

Insurance - Topic 3139

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - Claims - Notice and proof of loss - The plaintiff claimed under an insurance policy for the loss of a bull, but did not disclose to the insurer in the proof of loss that the bull was encumbered by a security agreement - After the bull died, the insurer denied liability because of the non-disclosure - The Saskatchewan Court of Queen's Bench held firstly, that the bull was not the subject of a security agreement, and, even if it was, the court would have granted relief from forfeiture under s. 109 of the Saskatchewan Insurance Act, where there was no prejudice to the insurer - See paragraphs 44 to 53.

Insurance - Topic 3140

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - Limitation period - The plaintiff's insured bull died on September 20, 1983 - A proof of loss was filed on October 5, 1983, which was not satisfactory to the insurer - The plaintiff completed other proofs of loss on December 5, 1983 and March 6, 1984 - The plaintiff commenced court action on March 9, 1984 - The insurer argued that the action was premature because the Insurance Act, s. 114, precluded actions until the expiration of 60 days after proof of loss - The Saskatchewan Court of Queen's Bench noted that the first two proofs of loss were in the hands of the insurer more than 60 days before the court action was commenced - The court granted relief from forfeiture and allowed the plaintiff to proceed with its action - See paragraphs 54 to 69.

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 Queen's Bench held 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 non-disclosure were also without merit - The Saskatchewan Court of Queen's Bench held that the insured was entitled to interest - See paragraphs 86 to 95.

Cases Noticed:

Herrington v. City of Hamilton, [1964] S.C.R. 70, dist. [paras. 8,9].

Kennedy Ross and Velanoff v. Canadian General Insurance Co., 22 D.L.R.(2d) 687 (Ont. C.A.), dist. [paras. 8, 10].

Milliken v. Young, [1929] 1 W.W.R. 213, dist. [paras. 8, 12].

Carter v. Boehm, 97 E.R. 1162, refd to. [para. 39].

McCammon v. Alliance Assurance Company Limited, [1931] 2 W.W.R. 621; [1931] 4 D.L.R. 811 (Sask. C.A.), refd to. [para. 40].

Kallos v. Saskatchewan Government Insurance, [1984] 2 W.W.R. 183, refd to. [para. 51].

Melanson v. Dominion of Canada General Insurance, [1934] 2 D.L.R. 459; 7 M.P.R. 1 (N.B.C.A.), dist. [paras. 66, 67].

Hatton v. Provincial Insurance Company (1858), 7 U.C.C.P. 555 (Ont. C.A.), dist. [paras. 66, 67].

Caldwel v. Stadacona Fire & Life Insur. Co. (1883), 11 S.C.R. 212, refd to. [para. 69].

Shepard v. Br. Dominions General Insur. Co., [1919] 2 W.W.R. 440; 58 S.C.R. 551; 47 D.L.R. 133, reversing [1918] 2 W.W.R. 985; 11 Sask. L.R. 259; 42 D.L.R. 746, refd to. [para. 69].

Westside Construction Co. Ltd. v. Saskatchewan Government Insurance Office (1959), 18 D.L.R.(2d) 285, refd to. [para. 69].

Piedmontese Breeding Co-Operative Limited v. Madill, [1985] 5 W.W.R. 289; 40 Sask.R. 144 (Sask. C.A.), refd to. [para. 92].

Statutes Noticed:

Queen's Bench Act, R.S.S. 1978, c. Q-1 [para. 86].

Saskatchewan Insurance Act, R.S.S. 1978, c. S-26, sect. 103(6) [para. 41]; sect. 109 [paras. 50 to 52]; sect. 114 [para. 54].

Authors and Works Noticed:

Bowstad On Agency (13th Ed.), p. 373 [para. 82].

Canadian Encyclopedic Digest (Western)(2nd Ed.), vol. 1, p. 271 [para. 82].

Counsel:

M. Fisher and K. Bell, for the plaintiff;

H.R. Kloppenberg, for the defendants, Non-Marine Underwriters at Lloyd's and Ken Davies & Associates Insurance Services Ltd.;

M.O. Laprairie, for the defendant, McFadyen & Sons Agencies Ltd.

This case was heard before Hrabinsky, J., of the Saskatchewan Court of Queen's Bench, who delivered the following decision on September 8, 1986: