Brett (Lorne) Chevrolet Geo Oldsmobile Cadillac v. Desmond et al., (1997) 195 N.B.R.(2d) 133 (TD)

• Judge: Turnbull, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 21, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 195 N.B.R.(2d) 133 (TD)

Brett Chevrolet v. Desmond (1997), 195 N.B.R.(2d) 133 (TD);

    195 R.N.-B.(2e) 133; 499 A.P.R. 133

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1997] N.B.R.(2d) TBEd. DE.031

Lorne Brett Chevrolet Geo Oldsmobile Cadillac (plaintiff) v. Timothy M. Desmond and The Guardian Insurance Company of Canada (defendants) and The Guardian Insurance Company of Canada (third party)

(S/C/1038/93)

Indexed As: Brett (Lorne) Chevrolet Geo Oldsmobile Cadillac v. Desmond et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Turnbull, J.

December 5, 1997.

Summary:

Desmond's insurance agent issued Des­mond insurance coverage for a car owned by Walker. The car was involved in an accident. Walker signed for repairs. The garage ef­fected the repairs under the mis­taken belief that Desmond had signed the work order. Desmond's insurer denied cov­erage, as­serting that Desmond did not have an in­surable interest. The garage sued Desmond and the insurer for payment. Desmond com­menced a third party claim against the in­surer.

The New Brunswick Court of Queen's Bench, Trial Division, held that Walker acted as Desmond's agent in authorizing the repairs and Desmond was liable to the gar­age for the costs of the repairs. Alternative­ly, Desmond was estopped from denying that Walker acted as his agent. The court agreed that Desmond lacked an insurable interest, but held that the insurance agent was negli­gent and Desmond was entitled to judgment against the insurer.

Agency - Topic 323

Creation of relations - Parties - Who con­stitutes an agent - Desmond's insurance agent issued Desmond insurance coverage for a car owned by Walker - The car was involved in an accident - Walker signed for repairs - The garage effected the re­pairs under the mistaken belief that Des­mond had signed the work order - Des­mond's insurer denied coverage - The garage sued Desmond for breach of con­tract - The New Brunswick Court of Queen's Bench, Trial Division, allowed the action - Walker acted as Desmond's agent in authorizing the repairs - Alternatively, Desmond was estopped from denying that Walker acted as his agent - See para­graphs 1 to 10.

Agency - Topic 381

Creation of relations - Agency by estoppel - General - [See Agency - Topic 323 ].

Agency - Topic 5032

Relations between agent and third parties -Contracts - Where agent contracts on behalf of principal - [See Agency - Topic 323 ].

Contracts - Topic 9626

Contracts for work, materials and services - The contract - Estimates - Desmond's insurance agent obtained insurance cover­age for a car owned by Walker - The car was involved in an accident - Desmond's insurer worked in conjunction with a gar­age in preparing an appraisal of the dam­age - The garage effected the repairs - The insurer denied coverage on the basis that Desmond lacked an insurable interest - The garage sued, inter alia, the insurer for breach of contract - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, dismissed the action against the insurer, where the insurer had not author­ized the repairs - An appraisal was not authority to repair - See paragraph 11.

Contracts - Topic 9628

Contracts for work, materials and services - The contract - Liability for payment - [See Contracts - Topic 9626 ].

Contracts - Topic 9703

Contracts for work, materials and services - Contracts for services - What constitutes - [See Contracts - Topic 9626 ].

Contracts - Topic 9706

Contracts for work, materials and services - Contracts for services - Repairs - [See Contracts - Topic 9626 ].

Insurance - Topic 545

Agents - Liability of insurer for acts of agent - Negligence - Desmond advised an insurance agent that he wanted insurance coverage for Walker's car - The agent gave Desmond a letter which stated that for insurance purposes the car should be registered in Desmond's name - Desmond gave the letter to the Motor Vehicle Branch and had the car registered in his name - Desmond's insurance policy was amended to include the car - Desmond and the agent believed that the coverage was proper and legal - The car was involved in an accident - Desmond's insurer denied coverage on the grounds that Desmond lacked an insurable interest - The New Brunswick Court of Queen's Bench, Trial Division, agreed that Desmond lacked an insurable interest, but held that the agent was negligent and Desmond was entitled to coverage - See paragraphs 12 to 18.

Insurance - Topic 2281

Insurable interest - What constitutes - General - [See Insurance - Topic 545 ].

Insurance - Topic 4555

Automobile insurance - Actions by insured against insurer - Defences - Mis­representa­tion by insured - Respecting ownership - [See Insurance - Topic 545 ].

Restitution - Topic 62

Unjust enrichment - General - What consti­tutes - Desmond's insurance agent issued Desmond insurance coverage for a car owned by Walker, but registered in Des­mond's name - The car was involved in an accident - A garage effected repairs - Desmond's insurer denied coverage on the basis that Desmond lacked an insurable interest - The garage sued Desmond, claiming unjust enrichment - The New Brunswick Court of Queen's Bench, Trial Division, held that Desmond was not unjustly enriched, where he did not own the car - See paragraph 8.

Cases Noticed:

Johnson Van & Storage Ltd. v. Guardian Insurance Co. of Canada and Imperial Insurance Services Ltd.; Knowlton v. Johnson Van & Storage Ltd. et al. (1982), 40 N.B.R.(2d) 421; 105 A.P.R. 421 (T.D.), refd to. [para. 13].

Authors and Works Noticed:

Brown, Craig, and Menezes, Julio, Insur­ance Law in Canada (2nd Ed. 1991), pp. 52 [para. 14]; 53 [paras. 14, 15]; 54 [paras. 14, 16].

Counsel:

Frederick A. Welsford, for the plaintiff;

Timothy M. Desmond, per se;

Paulette C. Garnett, for the defendant and third party, Guardian Insurance Co. of Canada.

This case was heard on October 21, 1997, before Turnbull, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision orally on December 5, 1997.