Dore v. General Insurance Corp. of New Brunswick, (1991) 115 N.B.R.(2d) 123 (TD)

• Judge: Russell, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 10, 1991
• Jurisdiction: New Brunswick
• Citations: (1991), 115 N.B.R.(2d) 123 (TD)

Dore v. General Ins. Corp. (1991), 115 N.B.R.(2d) 123 (TD);

    115 R.N.-B.(2e) 123; 291 A.P.R. 123

MLB headnote and full text

[French language version follows English language version]

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

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Gregory Dean Dore and Medley Dore (plaintiffs) v. General Insurance Corporation of New Brunswick (defendant) and Frederick Clark and Toby Clark (third parties)

(F/C/333/90)

Indexed As: Dore v. General Insurance Corp. of New Brunswick

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Russell, J.

April 10, 1991.

Summary:

An injured passenger sued the driver and the owner of the car.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment report­ed 85 N.B.R.(2d) 172; 217 A.P.R. 172, determined liability. The New Brunswick Court of Appeal affirmed the decision in a judgment reported 92 N.B.R.(2d) 210; 236 A.P.R. 210, leave to appeal to the Supreme Court of Canada refused, 94 N.B.R.(2d) 180; 239 A.P.R. 180.

The insurer alleged misrepresentation as to ownership and challenged the validity of the insurance policy. See 99 N.B.R.(2d) 421; 250 A.P.R. 421 (Q.B.); 102 N.B.R.(2d) 434; 256 A.P.R. 434 (C.A.).

The passenger obtained a consent judgment against the driver and the owner. He brought the present action against the insurer. The insurer denied coverage and claimed against the owner and driver in the event of judg­ment against it.

The New Brunswick Court of Queen's Bench, Trial Division, allowed both claims.

Insurance - Topic 4603

Automobile insurance - Actions by third parties against insurer - Defence by insurer respecting extent or validity of coverage or policy - A father insured a second vehicle claiming ownership - His son was the true owner - An injured pas­senger obtained judgment against the son as driver of the vehicle and the father as owner/insured - The insurer denied cover­age because of the misrepresentation about ownership - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 250(5) of the Insurance Act barred the insurer's defence against the passenger's claim - See paragraphs 6 to 24 - The father and son were liable for reimbursing the insurer for the amount of the judgment - See paragraph 35.

Interest - Topic 3964

Statutory interest - On insurance proceeds - Time for commencing payment - A passenger was rendered a paraplegic in a single-car accident - He sued the owner and driver in 1986 - The insurer joined in the action and also denied coverage because of misrepresentation as to owner­ship - The insurer unsuccessfully appealed the trial judge's finding of liability in 1988 and 1989 - Consent judgment respecting damages was taken on April 27, 1990 - The plaintiff sued the insurer for the policy limit and claimed prejudgment interest - The insurer denied coverage - The New Brunswick Court of Queen's Bench, Trial Division, awarded interest only from April 27, 1990, pursuant to the Insurance Act, s. 237(c).

Interest - Topic 5490

Interest as damages (prejudgment interest) - Insurance - [See Interest - Topic 3964 ].

Cases Noticed:

McNeil v. Cameron (1988), 86 N.S.R.(2d) 44; 218 A.P.R. 44, consd. [para. 12].

Bennett v. Thornhill, [1985] I.L.R. 1-1975; 55 Nfld. & P.E.I.R. 81; 162 A.P.R. 81, consd. [para. 12].

Bourgeois et al. v. Prudential Assurance Company, [1946] 1 D.L.R. 139, refd to. [para. 14].

Marshall v. Law Union and Rock Insur­ance Company Limited, 18 D.L.R.(2d) 442, folld. [para. 16].

Minister of Transport et al. v. London and Midland General Insurance Company, 19 D.L.R.(3d) 643, not folld. [para. 20].

Crawford et al. v. Employers Mutual Lia­bility Insurance Company of Wisconsin (1981), 35 N.B.R.(2d) 109; 88 A.P.R. 109, refd to. [para. 23].

Blair et al. v. Royal Exchange Assurance, 67 D.L.R.(2d) 420, refd to. [para. 23].

Bennett v. Thornhill, [1985] I.L.R. 1-1975, refd to. [para. 23].

Murphy v. Casualty Company of Canada (1987), 36 D.L.R.(4th) 87, refd to. [para. 23].

Wolfe v. Oliver et al. (1974), 8 N.S.R.(2d) 313, not folld. [para. 24].

Stevens v. Bowser et al. (1974), 18 N.S.R.(2d) 440; 20 A.P.R. 440, not folld. [para. 24].

Lawrence v. Powell et al. (1977), 28 N.S.R.(2d) 167; 43 A.P.R. 167, not folld. [para. 24].

MacNeil v. Cameron (1988), 86 N.S.R.(2d) 44; 218 A.P.R. 44, not folld. [para. 24].

Bourgeois v. Prudential Assurance Com­pany, [1946] 1 D.L.R. 139, refd to. [para. 27].

Stamper v. Finnegan et al. (1986), 75 N.B.R.(2d) 301; 188 A.P.R. 301, refd to. [para. 31].

Statutes Noticed:

Insurance Act, R.S.N.B. 1973, c. I-12, sect. 237(c) [para. 33]; sect. 250 [para. 6]; sect. 250(1), sect. 250(5) [para. 11]; sect. 250(13) [para. 35]; sect. 250(14) [para. 26].

Insurance Act, S.N.B. 1937, c. 44, sect. 183 [para. 15]; sect. 211(4) [para. 18].

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 1 [para. 9].

Counsel:

Allison Whitehead and Charles Bird, for the plaintiffs;

Barry R. Morrison, for the defendant.

This case was heard before Russell, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fred-ericton, who delivered the following judg-ment on April 10, 1991.