Battersby v. Lenhoco Enterprises Ltd. and Leniczek, (1980) 3 Sask.R. 112 (CA)

Judge:Woods, Brownridge and Bayda, JJ.A.
Court:Court of Appeal for Saskatchewan
Case Date:January 30, 1980
Jurisdiction:Saskatchewan
Citations:(1980), 3 Sask.R. 112 (CA)
 
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Battersby v. Lenhoco Ent. Ltd. (1980), 3 Sask.R. 112 (CA)

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Battersby v. Lenhoco Enterprises Ltd. and Leniczek

(No. 6909)

Indexed As: Battersby v. Lenhoco Enterprises Ltd. and Leniczek

Saskatchewan Court of Appeal

Woods, Brownridge and Bayda, JJ.A.

January 30, 1980.

Summary:

This case arose out of a claim by a mortgagee to the proceeds of a fire insurance policy. The policy was purchased by an assignee of the mortgagor. The assignee had not contractual or statutory duty to the mortgagee to insure the building. The insured building was destroyed by fire and the mortgagee claimed part of the insurance proceeds. The Saskatchewan Court of Queen's Bench allowed the mortgagee's action - see [1978] 2 W.W.R. 30. The assignee appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal dismissed the appeal.

Insurance - Topic 5542

Fire insurance - The contract - Intention to insure whole value of property, where insured has a limited interest - Trust respecting surplus funds - An assignee of a mortgagor purchased a fire insurance policy to cover the mortgaged building - Any loss under the policy was payable to the assignee and not the mortgagee - The assignee had no contractual or statutory duty to the mortgagee to insure the building - The building was destroyed by fire and the mortgagee claimed part of the insurance proceeds - The Saskatchewan Court of Appeal held that although the assignee had a limited interest in the building, the assignee intended to insure the whole value of the building - The Saskatchewan Court of Appeal allowed the mortgagee's action and held that the assignee held any funds in excess of the assignee's actual loss in trust for the mortgagee - The Court of Appeal stated that the mortgagee's right to the insurance proceeds vested on the date the fire occurred - See paragraphs 25 to 27.

Cases Noticed:

Waters v. Monarch Fire & Life Assur. Co. (1856), 5 E. & B. 870; 119 E.R. 705; [1843-60] All E.R. Rep. 654, refd to. [para. 14].

London and North Western Ry. Co. v. Glyn (1859), 1 E. & E. 652; 120 E.R. 1054, refd to. [para. 14].

Castellain v. Preston (1882-83), 11 Q.B.D. 338, refd to. [para. 14].

Hepburn v. A. Tomlinson (Hauliers) Ltd., [1966] 1 All E.R. 418, refd to. [para. 14].

Keefer v. The Phoenix Insurance Co. of Hartford (1902), 31 S.C.R. 144, refd to. [para. 14].

Commonwealth Construction Company Ltd. v. Imperial Oil Limited and Wellman-Lord (Alberta) Ltd., [1976] 6 W.W.R. 219, refd to. [para. 14].

Statutes Noticed:

Land Titles Act, R.S.S. 1965, c. 115, sect. 77(2) [para. 8].

Limitation of Civil Rights Act, R.S.S. 1965, c. 103, sect. 2 [para. 23]; sect. 6 [para. 21].

Authors and Works Noticed:

Laverty, The Insurance Law of Canada (2nd Ed.), p. 79 [para. 10].

Counsel:

J.R. Hoffart, for the (plaintiff) respondent;

M.K. Fisher, for the (defendants) appellants.

This appeal was heard by WOODS, BROWNRIDGE and BAYDA, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Saskatchewan Court of Appeal was delivered by BAYDA, J.A., at Regina, Saskatchewan, on January 30, 1980.

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