Fialkow v. Personal Insurance Co., 2006 ABCA 383

• Judge: Martin, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 06, 2006
• Citations: 2006 ABCA 383;(2006), 401 A.R. 222 (CA)

Fialkow v. Personal Ins. (2006), 401 A.R. 222 (CA);

      391 W.A.C. 222

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. DE.055

Albert Fialkow (respondent/plaintiff) v. The Personal Insurance Company (appellant/defendants)

(0501-0381-AC; 2006 ABCA 383)

Indexed As: Fialkow v. Personal Insurance Co.

Alberta Court of Appeal

Martin, Watson and Slatter, JJ.A.

December 8, 2006.

Summary:

The defendant realtor was holding an open house in the plaintiffs' home. The realtor started a fire in the fireplace, which ended up causing significant smoke damage to the home's interior. At the time, the realtor was insured by a personal home owner's policy issued by the defendant insurance company. It provided that "[you are covered for] legal liability for unintentional bodily injury or property damage arising out of your personal actions anywhere in the world. You are not insured for claims made against you arising from: ... - damage to property you own, use, occupy or lease; - damage to property in your care, custody or control. ... ". The chambers judge found that the realtor was not "in the care, custody and control" of the plaintiffs' house. Therefore he was entitled to a defence under the policy. The insurer appealed.

The Alberta Court of Appeal allowed the appeal, holding that the realtor had the care, custody or control of the house at the time of the fire. Therefore his activities were excluded from coverage under the policy and the insurer had no duty to defend.

Insurance - Topic 5607

Fire insurance - Exclusions - Temporary locations owned, rented or controlled by insured - The defendant realtor was holding an open house in the plaintiffs' home - The realtor started a fire in the fireplace, which ended up causing significant smoke damage to the home's interior - At the time, the realtor was insured by a personal home owner's policy issued by the defendant insurance company - It provided that "[you are covered for] legal liability for unintentional bodily injury or property damage arising out of your personal actions anywhere in the world. You are not insured for claims made against you arising from: ... - damage to property you own, use, occupy or lease; - damage to property in your care, custody or control. ..." - The Alberta Court of Appeal held that the realtor had the care, custody or control of the house at the time of the fire - Therefore his activities were excluded from coverage under the policy.

Insurance - Topic 6623

Multi-peril property insurance - Household or homeowner's policies - Premises insured - [See Insurance - Topic 5607 ].

Insurance - Topic 6812.2

Liability insurance - Homeowner's comprehensive policy - Personal liability coverage - [See Insurance - Topic 5607 ].

Cases Noticed:

Excel Cleaning Service v. Indemnity Insurance Co. of North America, [1954] S.C.R. 169, dist. [para. 8].

Kenting Drilling Ltd. v. General Accident Assurance Co. of Canada, [1979] 5 W.W.R. 68; 26 A.R. 90 (T.D.), affd. [1985] 3 W.W.R. 286 (Alta. C.A.), dist. [para. 62].

Acadia Road Contractors Ltd. v. Canadian Surety Co. (1977), 27 N.S.R.(2d) 605; 41 A.P.R. 605; 88 D.L.R.(3d) 287 (C.A.), dist. [para. 9].

Interprovincial Pipe Line Co. v. Seller's Oil Field Service, [1976] 3 W.W.R. 31 (Man. C.A.), dist. [para. 9].

Counsel:

M.A. Harris, for the appellant;

T.S. Meagher, for the respondent.

This appeal was heard on December 6, 2006, by Martin, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on December 8, 2006.