Conrad v. Wawanesa Mutual, 2015 NBQB 14

Judge:Grant, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:September 25, 2014
Jurisdiction:New Brunswick
Citations:2015 NBQB 14;(2015), 431 N.B.R.(2d) 186 (TD)
 
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Conrad v. Wawanesa Mutual (2015), 431 N.B.R.(2d) 186 (TD);

    431 R.N.-B.(2e) 186; 1124 A.P.R. 186

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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: [2015] N.B.R.(2d) TBEd. FE.009

Renvoi temp.: [2015] N.B.R.(2d) TBEd. FE.009

Rosalind Elizabeth Conrad (plaintiff) v. Wawanesa Mutual Insurance Company (defendant)

(S/C/100/13; 2015 NBQB 14; 2015 NBBR 14)

Indexed As: Conrad v. Wawanesa Mutual Insurance Co.

Répertorié: Conrad v. Wawanesa Mutual Insurance Co.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Grant, J.

January 12, 2015.

Summary:

Résumé:

The plaintiff's motor vehicle rear-ended another vehicle. The plaintiff's friend was driving and under the influence of intoxicating liquor. The defendant insurer denied coverage for the damage to the plaintiff's vehicle. At issue was: (a) whether the defendant was entitled to deny coverage; and (b) if not, what were the plaintiff's damages?

The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was entitled to coverage. The court allowed the plaintiff's claims for $20,435.73 for repairs, towing and storage, all of which were supported by invoices, as well as $1,000 for transportation costs over two years (no receipts). The court found no evidence warranting an award of damages for bad faith. The court awarded the plaintiff $1,430 in interest.

Contracts - Topic 3524

Performance or breach - Breach - Bad faith - The plaintiff's motor vehicle rear-ended another vehicle - The plaintiff's friend was driving and under the influence of intoxicating liquor - The defendant insurer (Wawanesa) denied coverage for the damage to the plaintiff's vehicle - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was entitled to coverage, but denied her claim for bad faith damages - The court stated that "there is no evidence that would support a finding that Wawanesa handled [the plaintiff]'s claim with bad faith. The fact that ... [Wawanesa] did not correctly interpret the policy in light of the facts does not lead to that conclusion, particularly where, as here, there was both evidence of intoxication and conflicting evidence. They made a judgment call with which I disagree after reviewing the evidence, but that does not amount to bad faith in my view." - See paragraphs 40 to 42.

Damage Awards - Topic 499

Injury and death - General damage awards - Transportation - The plaintiff sued her insurer for payment for damages to her vehicle - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was entitled to coverage under her policy - The court allowed the plaintiff's claim of $20,435.73 for repairs, towing and storage, all of which were supported by invoices - The plaintiff also claimed "more than a thousand dollars" for taxis in the two years since the date of the accident - The insurer disputed this claim because the plaintiff had provided no receipts - The court allowed $1,000 for transportation costs over two years, which was less than $10/week - This was a reasonable claim - See paragraphs 37 and 38.

Insurance - Topic 4250

Automobile insurance - Statutory conditions - Exclusions - Driving while intoxicated - The plaintiff's motor vehicle rear-ended another vehicle - The plaintiff's friend (Rideout) was driving and under the influence of intoxicating liquor - The plaintiff's insurer denied coverage for the damage to her vehicle - The New Brunswick Court of Queen's Bench, Trial Division, held that impairment by intoxicating liquor did not, by itself satisfy the test under the exclusion in the policy - Rather, the ultimate question was whether or not the impairment was to such an extent as to render the driver incapable of proper control of the vehicle - If so, the insurer would also have to prove that when the plaintiff gave permission to Rideout to drive, it was reasonably foreseeable that Rideout would be incapable of proper control of the vehicle by reason of her impairment - The court found that the evidence did not establish that Rideout was incapable of proper control of the vehicle any more than it proved driver inattention which was negligence, the very reason for having insurance - The plaintiff was entitled to coverage - See paragraphs 1 to 34.

Insurance - Topic 4250

Automobile insurance - Statutory conditions - Exclusions - Driving while intoxicated - The plaintiff's motor vehicle rear-ended another vehicle - The plaintiff's friend (Rideout) was driving and under the influence of intoxicating liquor - The plaintiff's insurer (Wawanesa) denied coverage for the damage to her vehicle - The New Brunswick Court of Queen's Bench, Trial Division, held that Wawanesa had not met the test under the exclusion in the policy - The court also rejected Wawanesa's argument that it would be contrary to public policy to allow the plaintiff to circumvent the exclusion because she was too intoxicated to ascertain Rideout's level of impairment - The court stated that "That may or may not be so but that is not my finding. My finding is that she did ascertain Ms. Rideout's level of impairment based on the facts that were within her knowledge and her past association with Ms. Rideout. Wawanesa also says it would be against public policy not to apply the exclusion here ... Public policy has nothing to do with the interpretation of this contract and it can't be conscripted by the insurer to re-write it." - See paragraphs 35 and 36.

Insurance - Topic 4566

Automobile insurance - Actions by insured against insurer - Defences - Public policy - [See second Insurance - Topic 4250 ].

Assurance - Cote 4250

Assurance automobile - Conditions légales - Exclusions - Conduite en état d'intoxication - [Voir Insurance - Topic 4250 ].

Assurance - Cote 4566

Assurance-automobile - Action par l'assuré contre l'assureur, moyens de défense - Ordre public - [Voir Insurance - Topic 4566 ].

Contrats - Cote 3524

Exécution ou rupture - Rupture - Mauvaise foi - [Voir Contracts - Topic 3524 ].

Évaluation des dommages-intérêts - Cote 499

Blessures et décès - Évaluation des dommages-intérêts généraux - Transports - [Voir Damage Awards - Topic 499 ].

Cases Noticed:

Theriault v. Fidelity Insurance Co. of Canada (1984), 52 N.B.R.(2d) 236; 137 A.P.R. 236 (C.A.), refd to. [para. 17].

Hand v. Halifax Insurance Co. (1975), 7 O.R.(2d) 194 (C.A.), refd to. [para. 22].

Walsh v. Nicholls et al. (2004), 273 N.B.R.(2d) 203; 717 A.P.R. 203; 2004 NBCA 59, refd to. [para. 40].

Veno v. United General Insurance Corp. (2008), 330 N.B.R.(2d) 237; 845 A.P.R. 237; 2008 NBCA 39, refd to. [para. 41].

Counsel:

Avocats:

Jean-Yves Bernard, for the plaintiff;

Bruce D. Grant, for the defendants.

This case was heard on September 25, 2014, by Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on January 12, 2015.

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