Gibraltar General Insurance Co. v. Yingst (L.E.) Co., (1990) 89 Sask.R. 93 (QB)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 14, 1990
• Jurisdiction: Saskatchewan
• Citations: (1990), 89 Sask.R. 93 (QB)

Gibraltar General Ins. v. Yingst Co. (1990), 89 Sask.R. 93 (QB)

MLB headnote and full text

Gibraltar General Insurance Company (plaintiff) v. L.E. Yingst Co. Ltd. (defendant)

(No. 2994 A.D. 1987)

Indexed As: Gibraltar General Insurance Co. v. Yingst (L.E.) Co.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McIntyre, J.

November 14, 1990.

Summary:

After an insurer was found liable as third party to indemnify its insured, a defendant contractor (See 54 Sask.R. 53), the insurer brought an action in negligence against its agent for failure to include the statutory conditions in the policy.

The Saskatchewan Court of Queen's Bench dismissed the action and held that, although the agent was negligent, the insurer would have been liable to the contractor even if the statutory conditions had been included in the policy.

Damages - Topic 201

Entitlement - Requirement of loss - An insurance agent negligently omitted statutory conditions from an insurance policy, including a statutory condition prescribing a limitation period for an action by the insured under the policy - The insurer was found liable to the insured and brought an action against the agent in negligence for failure to include the statutory conditions - The Saskatchewan Court of Queen's Bench dismissed the action, because even if the statutory conditions had been included in the policy, the insurer would have been liable, because the action against it was timely - See paragraphs 33 to 46.

Estoppel - Topic 377

Estoppel by record - Res judicata - As bar to subsequent proceedings - When applicable - In a negligence action the defendant added its insurer as third party - The insurer could have, but did not, add its agent as fourth party - After the insurer was found liable to indemnify the defendant, the insurer brought an action against its agent - The agent pleaded that it was not bound by the findings of fact and law in the prior action - The Saskatchewan Court of Queen's Bench agreed and held that the doctrine of res judicata was inapplicable, because while the issue in the prior action was the same and the judgment was final, the agent was not a party to it and had no interest in it - See paragraphs 23 to 26.

Insurance - Topic 515

Agents - Liability of agent - General - Negligence - Duty of agent to insure as principal - [See Damages - Topic 201].

Limitation of Actions - Topic 2324

Actions in contract - Insurance contracts - When time begins to run - A contractor was sued in negligence and found liable - The Saskatchewan Court of Queen's Bench held that for the purpose of a claim by the contractor against its insurer under its policy (a contract of indemnity) time began to run when the nature and amount of the claim against the contractor had been determined by judgment or settlement - See paragraphs 33 to 42.

Limitation of Actions - Topic 2344

Actions in contract - Contract of indemnity - When time begins to run - [See Limitation of Actions - Topic 2324].

Practice - Topic 7029.2

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Delay in raising issue - An insurer third party could have, but did not, add its agent as fourth party - Rather, after being found liable to indemnify the defendant, the insurer brought an action against its agent - The action was dismissed on the basis of a limitation period issue raised only late in the proceedings by the agent - The Saskatchewan Court of Queen's Bench refused to award the agent costs - See paragraph 47.

Cases Noticed:

Callaghan Contracting Ltd. v. Royal Insurance Co. of Canada (1989), 97 N.B.R.(2d) 381; 245 A.P.R. 381; 39 C.C.L.I. 65, appld. [paras. 9, 33, 36].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, appld. [para. 23].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R.(3d) 544, appld. [para. 24].

Bomac Construction Ltd. et al. v. Stevenson et al. (1986), 48 Sask.R. 62, appld. [para. 24].

Pound v. Nakonechny, Busch and Heinrich, [1984] 1 W.W.R. 289; 28 Sask.R. 222 (C.A.), appld. [para. 33].

98956 Investments Ltd. (Receivership) v. Fidelity Trust Co., [1988] 6 W.W.R. 427; 89 N.R. 151 (C.A.), appld. [para. 36].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 32; 75 N.S.R.(2d) 109; 186 A.P.R. 109, appld. [para. 36].

N.M. Paterson & Sons Ltd. v. St. Lawrence Corporation Limited, [1974] S.C.R. 31, appld. [para. 37].

Peterson Steels Inc. v. Artic Steamship Line et al.; Stora Kopparberg Corp. v. Artic Steamship Line et al. (1981), 114 D.L.R.(3d) 157 (Fed. T.D.), appld. [para. 38].

Statutes Noticed:

Saskatchewan Insurance Act, R.S.S. 1978, c. S-26, sect. 128(1) [para. 6]; sect. 128(1), stat. cond. 14 [paras. 5, 33].

Insurance Act (Sask.) - see Saskatchewan Insurance Act.

Authors and Works Noticed:

Canadian Encylopedic Digest (Ont.)(3rd. Ed.) vol. 19, p. 35, para. 70 [para. 36].

Halsbury's Laws of England (4th Ed.), vol. 28, para. 669 [para. 36].

Spencer-Bower and Turner, The Doctrine of Res Judicata (2nd Ed. 1969), para. 242 [para. 25].

Counsel:

P.J. Gallet, for the plaintiff;

R.D. Laing, Q.C., and D. McKashin, for the defendant.

This case was heard at Regina, Saskatchewan before McIntyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 14, 1990: