Co-Operative Fire and Casualty Co. v. Ferguson, (1984) 59 N.B.R.(2d) 299 (TD)

• Judge: Boisvert, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 13, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 59 N.B.R.(2d) 299 (TD)

Co-op Fire v. Ferguson (1984), 59 N.B.R.(2d) 299 (TD);

    59 R.N.-B.(2e) 299; 154 A.P.R. 299

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Co-Operative Fire and Casualty Company v. Ferguson and Ferguson

(No. B/C/76/83)

Indexed As: Co-Operative Fire and Casualty Co. v. Ferguson

Répertorié: Co-Operative Fire and Casualty Co. v. Ferguson

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

Boisvert, J.

November 27, 1984.

Summary:

Résumé:

The insured recovered damages from a motor vehicle driver in a negligence action reported (1982), 37 N.B.R.(2d) 643; 97 A.P.R. 643, including damages for lost wages. The insurer, who had paid the insured's claim for lost wages under the automobile insurance policy, brought a subrogated action against the insured to recover the amount paid under the claim.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action.

Insurance - Topic 2876

Subrogation - Defined - The New Brunswick Court of Queen's Bench, Trial Division, stated that subrogation meant that "if an insurer pays under the provisions of an insurance contract, and the insured subsequently is in receipt of a payment or benefit with respect to this same loss, which together with the insurance money is more than the loss suffered, he must by the doctrine of subrogation account to the insurer for the excess up to the amount paid by the insurer" - See paragraph 13.

Insurance - Topic 2885

Subrogation - Action by insured - Liability for costs of action - An insured brought a motor vehicle negligence action against a defendant - The insurer allowed the insured to initiate and conduct the action at the insured's cost - The New Brunswick Court of Queen's Bench, Trial Division, held that it was only fair that the insurer contribute $500.00 towards the cost of the action - See paragraph 16.

Insurance - Topic 2898

Subrogation - Action by insurer for payments to insured by third party - The insured received benefits for lost wages from their insurer under an automobile insurance policy - The insured subsequently recovered damages for lost wages in a motor vehicle negligence action - The New Brunswick Court of Queen's Bench, Trial Division, held that the insurer was entitled to recover the benefits paid to the insured, to avoid the insured receiving double compensation for their loss - See paragraphs 4 to 16.

Limitation of Actions - Topic 2050

Actions in contract - Actions for debt - General - An insured received benefits for lost wages under an automobile insurance policy - Subsequently, the insured recovered damages for lost wages in a motor vehicle negligence action - The New Brunswick Court of Queen's Bench, Trial Division, held that the insurer's subrogated action for the return of the benefits was an action in debt, not an action arising out of the operation, care or control of a motor vehicle - See paragraph 11.

Limitation of Actions - Topic 2052

Actions in contract - Actions for debt - When time begins to run - In 1977, an insured received insurance benefits for lost wages resulting from a motor vehicle accident - In 1982, the insured recovered damages for lost wages from the other motor vehicle driver - The insurer brought an action against the insured to recover the benefits - The New Brunswick Court of Queen's Bench, Trial Division, held that the limitation period began to run in 1982, not 1977, because the cause of action arose in 1982 - See paragraph 9.

Limitation of Actions - Topic 3040

Actions in tort - Motor vehicle accidents - Actions arising out of the operation, care or control of a motor vehicle - An insured received benefits for lost wages under an automobile insurance policy - Subsequently, the insured recovered damages for lost wages in a motor vehicle negligence action - The New Brunswick Court of Queen's Bench, Trial Division, held that the insurer's subrogated action for the return of the benefits was an action in debt, not an action arising out of the operation, care or control of a motor vehicle - See paragraph 11.

Cases Noticed:

Ferguson and Ferguson v. Matchette and C. & J. Enterprises Ltd. (1982), 37 N.B.R.(2d) 643; 97 A.P.R. 643, refd to. [para. 5].

National Fire Insurance Co. v. McLaren (1886), 12 O.R. 682, refd to. [para. 6].

Dufferin Paving & Crushed Stone Ltd. v. Anger & Derbyshire, [1940] 1 D.L.R. 1 (S.C.C.), dist. [para. 9].

Kozoris v. Thederahn (1965), 47 D.L.R.(2d) 627, dist. [para. 9].

Volts v. Commercial Credit Corporation Ltd. (1967), 59 D.L.R.(2d) 742, dist. [para. 9].

Heppel v. Stewart et al. (1968), 69 D.L.R.(2d) 88, dist. [para. 9].

Edwards v. Motor Union, [1917] 1 K.B. 458, refd to. [para. 13].

King v. Victoria Insurance, [1896] A.C. 250, refd to. [para. 13].

Ironfield v. Eastern Gas Board, [1964] 1 W.L.R. 1125n, refd to. [para. 13].

Commercial Union v. Lister (1874), L.R. 9 Ch. 483, refd to. [para. 13].

Yorkshire Insurance v. Nisbet, [1962] 2 Q.B. 330, refd to. [para. 13].

Randal v. Cockran (1748), 1 Ves. 98, refd to. [para. 13].

Re Miller Gibb, [1957] 1 W.L.R. 703, refd to. [para. 13].

Orion Insurance Co. Ltd. v. Hicks et al. (1972), 32 D.L.R.(3d) 256 (Man. Q.B.), agreed with [para. 15].

Statutes Noticed:

Insurance Act, R.S.N.B. 1973, c. I-12, sect. 232(1) [para. 3].

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 5(1) [para. 8].

Authors and Works Noticed:

Porter, Law of Insurance (8th Ed.), pp. 1, 2 [para. 7].

Welford, Accident Insurance (2nd Ed.), pp. 5, 6 [para. 7].

Counsel:

Pierre T. Tremblay, for the plaintiff;

T.W. Riordon, Q.C., for the defendants.

This action was heard at Bathurst, New Brunswick, on November 13, 1984, before Boisvert, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on November 27, 1984: