Capital Crane Ltd. v. Atlantic Fabricators and Erectors Ltd. and Tenneco Canada Inc., (1992) 94 Nfld. & P.E.I.R. 119 (NFTD)

• Judge: L.D. Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 15, 1992
• Jurisdiction: Newfoundland and Labrador
• Citations: (1992), 94 Nfld. & P.E.I.R. 119 (NFTD)

Capital Crane v. Atl. Fab. (1992), 94 Nfld. & P.E.I.R. 119 (NFTD);

    298 A.P.R. 119

MLB headnote and full text

Capital Crane Limited (plaintiff) v. Atlantic Fabricators and Erectors Limited (first defendant) and Tenneco Canada Inc. (second defendant)

Tenneco Canada Inc. (plaintiff) v. Capital Crane Limited (defendant) and Royal Insurance Company of Canada (third party)

(1987 St. J. No. 2043)

Indexed As: Capital Crane Ltd. v. Atlantic Fabricators and Erectors Ltd. and Tenneco Canada Inc.

Newfoundland Supreme Court

Trial Division

L.D. Barry, J.

January 15, 1992.

Summary:

After a crane tipped and dropped a ship-loader arm it was installing, the crane oper­ator consented to judgment in favour of the owner of the arm and sought to recover the damages payable from its insurer. The insurer denied recovery on the grounds that the crane was operated in excess of 85% of its tipping load and that the arm was within the care, custody and control of the crane operator within the meaning of policy exclu­sions.

The Newfoundland Supreme Court, Trial Division, allowed the action on the ground that the insurer failed to prove that 85% of the tipping load was exceeded and therefore the incident was covered.

Insurance - Topic 1112

Insurance contract - Formation of the contract - Special endorsements - The Newfoundland Supreme Court, Trial Divi­sion, held that an endorsement to an insur­ance policy which is not attached to the policy is inapplicable - See paragraphs 76 to 78.

Insurance - Topic 1858

Insurance contract - Interpretation - Am­biguity - Construction to produce a fair result - A crane tipped and dropped a shiploader arm it was installing - A liabil­ity policy covering the crane's operations excluded property damage to property in the care, custody and control of the insured and a rider to a concurrent policy excluded damage where the crane was operated in excess of 85% of the minimum tipping load - The Newfoundland Supreme Court, Trial Division, considered applying the contra proferentem rule to find that the arm was not within the crane operator's control and was therefore covered, but concluded that the tipping load rider indi­cated that the parties intended the rider, and not the control exclusion, to govern the situation - See paragraphs 63 to 74.

Insurance - Topic 1861

Insurance contract - Interpretation - Contra proferentem rule - Ambiguity construed against insurer - [See Insur­ance - Topic 1858 ].

Insurance - Topic 6906

Liability insurance - Business - Compre­hensive policy - Exclusions - Property in care, custody or control of insured - [See Insurance - Topic 1858 ].

Insurance - Topic 6920

Liability insurance - Business - Compre­hensive policy - Exclusions - Cranes - Exceeding tipping load - A crane tipped and dropped the shiploader arm it was installing - The insurer denied liability on the ground that the crane was operated in excess of 85% of its minimum tipping load - The Newfoundland Supreme Court, Trial Division, held the insurer liable after it failed to prove that 85% of the tipping load was exceeded - See paragraphs 12 to 60.

Insurance - Topic 6986

Liability insurance - Evidence - De­fences - Exclusions - Burden of proof - The Newfoundland Supreme Court, Trial Divi­sion, held that the onus was on the insurer in seeking to establish an exclusion under a policy to prove on a balance of the probabilities that the exclusionary provi­sions applied in the circumstances - See paragraph 9.

Cases Noticed:

Sun Construction Co. Ltd. v. Canadian Indemnity Co. (1986), 63 Nfld. & P.E.I.R. 91; 194 A.P.R. 91 (Nfld. T.D.), appld. [para. 9].

Indemnity Insurance Co. v. Excel Cleaning Service, [1954] 2 D.L.R. 721 (S.C.C.), appld. [para. 63].

Day & Ross (Nfld.) Ltd. v. Insurance Corporation of Newfoundland Ltd. (1987), 66 Nfld. & P.E.I.R. 304; 204 A.P.R. 304; 29 C.C.L.I. 112 (Nfld. C.A.), appld. [para. 64].

Neil's Trailer & Equipment Ltd. v. Butler, Maveety & Meldrum Ltd. and Maryland Casualty Co. (1977), 5 A.R. 91; 75 D.L.R.(3d) 151 (Alta. T.D.), consd. [para. 65].

Goswick v. Employer's Casualty Co. (1969), 440 S.W. Rep.(2d) 287 (Tex. S.C.), appld. [para. 68].

Consolidated Bathurst Export Ltd. v. Neu­tral Boiler & Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488; 112 D.L.R.(3d) 49; [1980] I.L.R. 1-1176, appld. [para. 71].

Statutes Noticed:

Insurance Contracts Act, R.S.N. 1970, c. 178, sect. 5(1) [para. 77].

Counsel:

Thomas O'Reilly, Q.C., and Reginald Brown, for Capital Crane Limited;

David Eaton and Paul G. Scott, for Royal Insurance Company of Canada.

This case was heard on April 30, May 1-4, 7-11, October 25, 29-31, November 1, 2, 6, 7, 1990, and February 14, 15, 1991, at St. John's, Nfld., before L.D. Barry, J., of the Newfoundland Supreme Court, Trial Divi­sion, who delivered the following judgment on January 15, 1992: