Acadia Road Contractors Ltd. v. Canadian Surety Co., (1978) 27 N.S.R.(2d) 605 (CA)

• Judge: Cooper, Hart and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 21, 1978
• Jurisdiction: Nova Scotia
• Citations: (1978), 27 N.S.R.(2d) 605 (CA)

Acadia Road Cont. v. Cdn. Surety (1978), 27 N.S.R.(2d) 605 (CA);

    41 A.P.R. 605

MLB headnote and full text

Acadia Road Contractors Limited v. Canadian Surety Company

Indexed As: Acadia Road Contractors Ltd. v. Canadian Surety Co.

Nova Scotia Supreme Court

Appeal Division

Cooper, Hart and Pace, JJ.A.

June 21, 1978.

Summary:

This case arose out of a contractor's action against its insurer for indemnity after the contractor was found liable in negligence for damages to two cranes. The contractor, which was building a bridge, hired the two cranes to work on the bridge. The cranes were operated and maintained at all times by their owners. The contractor directed their work. The cranes were damaged as a result of the contractor's negligence, for which the contractor was found liable to the cranes' owners. The contractor claimed indemnity under its liability insurance, but the insurer refused payment, relying on an exclusion of liability for property used by the contractor or in the contractor's care, custody and control. Cowan, C.J.T.D., of the Nova Scotia Supreme Court, Trial Division, in a judgment reported at paragraphs 7-47 below and 81 D.L.R. (3d) 169 allowed the contractor's action. The insurer appealed.

The Nova Scotia Court of Appeal dismissed the appeal and affirmed the judgment of the Trial Division.

Insurance - Topic 6906

Liability insurance - Business - Comprehensive policy - Exclusions - Property in care, custody and control of insured - A contractor, which was building a bridge, hired two cranes to work on the bridge - The cranes were operated and maintained at all times by their owners - The contractor directed the cranes' work - The cranes were damaged as a result of the contractor's negligence, for which the contractor was found liable to the owners - The contractor claimed indemnity under its liability insurance, but the insurer refused payment, relying on an exclusion of liability for property in the care, custody and control of the contractor - The Nova Scotia Court of Appeal held that the cranes were not in the custody or control of the contractor and that the insurer was liable - See paragraphs 1 to 6, 34 to 41.

Insurance - Topic 6907

Liability insurance - Business - Comprehensive policy - Exclusions - Property used by insured - A contractor, which was building a bridge, hired two cranes to work on the bridge - The cranes were operated and maintained at all times by their owners - The contractor directed the cranes' work - The cranes were damaged as a result of the contractor's negligence, for which the contractor was found liable to the owners - The contractor claimed indemnity under its liability insurance, but the insurer refused payment, relying on an exclusion of liability for property used by the contractor - The Nova Scotia Court of Appeal held that the cranes were not being used by the contractor and that the insurer was liable - See paragraphs 1 to 33.

Words and Phrases

Care, custody and control - The Nova Scotia Court of Appeal discussed the meaning of the words "care, custody and control of the insured" in a liability insurance policy - See paragraphs 1 to 6, 34 to 41.

Words and Phrases

Used - The Nova Scotia Court of Appeal discussed the meaning of the words "property used by the insured" in a liability insurance policy - See paragraphs 1 to 33.

Cases Noticed:

Dominion Bridge Company Limited v. Toronto General Insurance Company, [1963] S.C.R. 362; 45 W.W.R.(N.S.) 125; [1963] I.L.R. 1-108; 40 D.L.R.(2d) 840, affirming 37 W.W.R.(N.S.) 673; [1962] 1 I.L.R. 1-063; 32 D.L.R.(2d) 374, which reversed 34 W.W.R.(N.S.) 289; [1961] I.L.R. 1-025; 27 D.L.R.(2d) 486, consd. [para. 22].

Watts v. Centennial Insurance Company, 62 W.W.R.(N.S.) 175; [1969] I.L.R. 1-220; 65 D.L.R.(2d) 529 (B.C.S.C.), consd. [para. 25].

Fraser River Pile Driving Company Limited v. Fidelity Insurance Company of Canada, [1973] I.L.R. 524 (B.C.S.C.), folld. [para. 26].

Hardware Mutual Casualty Company v. Mason-Moore-Tracy, Inc. (1952), 194 F.(2d) 173 (U.S.C.A. 2nd Cir.), dist. [para. 30].

Lee v. Aetna Casualty & Surety Co. (1949), 178 F.(2d) 750, dist. [para. 32].

Indemnity Insurance Co. v. Excel Cleaning Service, [1954] S.C.R. 169; [1954] 2 D.L.R. 721 (S.C.C.), consd. [para. 40].

Interprovincial Pipe Line Co. v. Seller's Oil Field Ltd. Lloyds of London et al. (1976), 66 D.L.R. (3d) 360 (Man. C.A.), consd. [para. 40].

Neil's Trailer & Equipment Limited v. Butler, Maveeti & Meldrum Limited et al, 5 A.R. 91, [1977] I.L.R. 1-864 (Alta. S.C.), consd. [para. 40].

McInnis, Meehan and Tramble v. Webb Real Estate Limited et al., (1977), 20 N.S.R.(2d) 6; 27 A.P.R. 6, consd. [para. 43].

Statutes Noticed:

Construction Safety Act, R.S.N.S. 1967, c. 52, sect. 6 [para. 36].

Authors and Works Noticed:

Couch on Insurance (2nd Ed.), vol. 12, pp. 13-19, 72 [para. 28].

Counsel:

J. D. MacIsaac and R. F. Larkin, for appellant;

J. M. Barker, for respondent.

This case was heard on June 6, 1978, at Halifax, Nova Scotia, before COOPER, HART and PACE, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On June 21, 1978, COOPER, J.A., delivered the following judgment for the Appeal Division: