Hogan v. Kolinsnyk and Security Mutual Casualty Co., (1983) 43 A.R. 17 (QB)

• Judge: Miller, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 01, 1983
• Citations: (1983), 43 A.R. 17 (QB)

Hogan v. Kolinsnyk (1983), 43 A.R. 17 (QB)

MLB headnote and full text

Hogan v. Kolinsnyk and Security Mutual Casualty Company

(third party)

Indexed As: Hogan v. Kolinsnyk and Security Mutual Casualty Co.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Miller, J.

February 1, 1983.

Summary:

The plaintiff recovered judgment against the defendant for damages arising from a motor vehicle accident. The defendant's insurer denied liability to indemnify the defendant in the following circumstances. The defendant and his wife worked for the wife's company. The insurer insured the company station wagon under a policy which was to expire on August 30, 1980. On August 25, the defendant and his wife traded in the station wagon on a half ton truck, which was registered in the defendant's name instead of that of the company for financing reasons. The company made the payments on the truck. On August 28 the defendant had the accident for which he was found libel to the plaintiff. Although the plaintiff was taken to hospital in an ambulance, the defendant did not think the claim would be made and did not notify the insurer of the accident until 28 days later upon receipt of the plaintiff's claim, further, the insurer was not notified within 14 days of the purchase of the truck as a replacement vehicle as provided in the policy. Also, the defendant and his wife did not intend to renew the policy and another insurer issued a policy on the truck on August 31. The insurer denied liability on the ground that it did not receive timely notice of the replacement or the accident and that the company was not the owner of the truck.

The Alberta Court of Queen's Bench held that the insurer was liable. The court held that the truck replaced the station wagon and coverage was automatic during the fourteen day replacement notification period, and the company was the owner, notwithstanding registration in the defendant. The court held that there was a duty to notify the insurer of the accident and that the notification of the accident was not given promptly as required. However, the court relieved the defendant from forfeiture, because his error in failing to notify was honest and the insurer was not prejudiced, particularly where the insurer denied liability on other grounds.

Insurance - Topic 3138

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - General - Insurance Act, R.S.A. 1980, c. I-5, ss. 205, 211 - The Alberta Court of Queen's Bench relieved an insured against forfeiture for failure to give timely notice of an accident under an automobile insurance policy, where the insured's failure was honest and the insurer was not prejudiced, particularly where the insurer denied liability on other grounds - See paragraphs 64 to 77.

Insurance - Topic 3139

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - Notice and proof of loss - The Alberta Court of Queen's Bench held that notice to an insurer of an accident falls within the term "proof of loss" in the relief against forfeiture provision of the Insurance Act The court relieved an insured from forfeiture for failure to give timely notice of an accident under an automobile insurance policy, where the insured's failure was honest and the insurer was not prejudiced particularly where the insurer denied liability on other grounds - See paragraphs 64 to 77.

Insurance - Topic 3801

Automobile insurance - Contract - Owner - Defined - What constitutes owner - Registration - Effect of - A wife's company traded a station wagon for a half ton truck - For financing purposes the truck was registered in the name of the husband - The truck was paid for by the company for which both the wife and husband worked - The Alberta Court of Queen's Bench held that the company was an owner of the truck, which the husband held on a resulting trust for the company - The court held that registration is only prima facie proof of ownership - See paragraphs 26 to 30.

Insurance - Topic 4011

Automobile insurance - Liability policy - Risk - Automobile defined - Newly acquired replacement - The Alberta Court of Queen's Bench set out the conditions for a newly acquired vehicle constituting a replacement vehicle under an insurance policy - The court held that the vehicle described in the policy must have been disposed of, with no control retained over it by the insured - The court stated that, if the described vehicle remains in the possession of the insured, it must be in an inoperable condition, so that both it and the replacement vehicle cannot be driven at the same time. The court held further that a lengthy period of time must not elapse between disposition or retirement of the described vehicle and acquisition of the new one - See paragraphs 21 to 25.

Insurance - Topic 4255

Automobile insurance - Statutory conditions - Notice to insurer of accident by insured - An insured driver struck a pedestrian, who was taken from the scene by ambulance - Believing that no claim would be made against him, the insured did not inform his insurer of the accident until 28 days later upon receipt of the pedestrian's claim - The Alberta Court of Queen's Bench held that there was a duty to notify the insurer, because a prudent insured could reasonably expect that a claim might be made - The court held that the notice was not made promptly, as required - See paragraphs 51 to 63.

Trusts - Topic 2101

Resulting trusts - Where property is transferred to one and the purchase price is paid by another - A wife's company traded a station wagon for a half ton truck - For financing purposes the truck was registered in the name of the husband - The truck was paid for by the company for which both the wife and husband worked - The Alberta Court of Queen's Bench held that the company was an owner of the truck, which the husband held on a resulting trust for the company - The court held that registration is only prima facie proof of ownership - See paragraphs 26 to 30.

Cases Noticed:

Wilson v. British Columbia Motorist Insurance Co. (1978), 8 B.C.L.R. 337 (S.C.), appld. [para. 21].

Lagace v. Switzerland General Insurance Co. Ltd. (1981), 37 A.R. 181 (Q.B.), appld. [para. 21].

Fraser v. Travelers Indemnity Company of Canada (1980), 33 A.R. 559; 130 D.L.R.(3d) 344 (Alta. Q.B.), appld. [para. 22].

Hill v. Co-operative Fire & Casualty Co., [1978] 1 W.W.R. 703 (B.C.S.C.), appld. [para. 22].

Wolfe v. Oliver (1974), 8 N.S.R.(2d) 313 (N.S.C.A.), consd. [para. 23].

Bois v. McDonald et al., [1975] 5 W.W.R. 739 (Alta. C.A.), appld. [para. 26].

Hayduk v. Pidoborozny (1972), 29 D.L.R.(3d) 8 (S.C.C.), appld. [para. 26].

Jessett v. Conacher (1981), 30 A.R. 489 (Q.B.), appld. [para. 26].

Dyer v. Dyer (1788), 2 Cox 92; 30 E.R. 42, consd. [para. 27].

Re Scottish Equitable Life Assurance Society, [1902] 1 Ch. 282, consd. [para. 27].

Pascoe v. Provincial Treasurer of Manitoba (1958), 26 W.W.R.(N.S.) 640, appld. 27 W.W.R.(N.S.) 393, [para. 34].

Pannenbecker v. Dominion of Canada General Insurance Co. (1978), 13 A.R. 487; 93 D.L.R.(3d) 450 (Alta. C.A.), consd. [para. 35].

Fraser v. Travellers Indemnity Co. of Canada (1981), 33 A.R. 559; 130 D.L.R.(3d) 344 (Alta. Q.B.), not folld. [para. 35].

Cauchon v. Fidelity Phenix Insurance Company, [1967] C.S. 185, appld. [para. 37].

General Security Insurance Company of Canada v. Belanger and Highway Victims Indemnity Funds, [1977] 1 S.C.R. 802; 10 N.R. 355, appld. [para. 38].

Halifax Insurance Co. v. Judgment Recovery (N.S.) Ltd. (1977), 77 D.L.R.(3d) 107; 21 N.S.R.(2d) 420; 28 A.P.R. 420 (sub nom Lane v. Young), appld. [para. 41].

Lane v. Young (1977), 77 D.L.R.(3d) 107; 21 N.S.R.(2d) 420; 28 A.P.R. 420, appld. [para. 41].

Hill v. Co-operative Fire & Casualty Company, [1978] 1 W.W.R. 703 (B.C.S.C.), appld. [para. 42].

Quaderer v. Intergrity Mutal Insurance Company (1962), 116 N.W.(2d) 605 (Minn. S.C.), appld. [para. 43].

Hall v. State Farm Mutual Automobile Insurance Company (1966), 268 F. Supp. 995, affd. 378 F. 2d 371 (C.A. 4th Cir.), appld. [para. 44].

Glacier General Assurance Company v. State Farm Mutual Automobile Insurance Company (1968), 436 P. 2d 533 (Montana S.C.), appld. [para. 45].

Wilson and Wilson v. B.C. Motorist Insurance Company and Wilson et al., 8 B.C.L.R. 377, appld. [para. 46].

W. Schoeler Trucking Ltd. v. Markel Insurance Company of Canada, [1980] I.L.R. 781; 19 A.R. 196; 9 Alta. L.R. 232, appld. [paras. 53, 66, 69].

Marcoux v. Halifax Fire Insurance Co., [1948] 4 D.L.R. 143 (S.C.C.), appld. [para. 54].

Glenburn Dairy Ltd. v. Canadian General Insurance Co., [1953] I.L.R. 527, ref'd to. [para. 55].

Duchene v. General Accident Assurance Co. (1926), 31 O.W.N. 59, consd. [para. 59].

North Lethbridge Garage Ltd. v. Continental Casualty Company, [1930] 1 W.W.R. 491, (Alta. C.A.), consd. [paras. 59, 68, 71 and 74].

Filiatrault v. Zurich Insurance Co., [1981] I.L.R. 5486 (B.C.S.C.), consd. [para. 59].

Prairie City Oil Co. v. Standard Insurance Co. (1910), 44 S.C.R. 40, appld. [para. 65].

Bodnorchuck v. Union Marine and General Insurance Co. Ltd., [1957] I.L.R. 235 (Sask. C.A.), appld. [paras. 65, 73].

Canadian Equipment Sales & Service Co. Ltd. v. Continental Insurance Co. (1975), 9 O.R.(2d) 7, appld. [paras. 66, 75].

Petrisor v. Gore District Mutual Fire Insurance Co., [1960] I.L.R. 833 (Ont. C.A.), affd. [1960] I.L.R. 887 (S.C.C.), C.), consd. [para. 67].

Rissling v. British America Assurance Co., [1957] I.L.R. 277 (Man. Q.B.), consd. [para. 67].

National Juice Co. Ltd. v. Dominion Insurance Co. (1976), 70 D.L.R.(3d) 677 (Ont. C.C.), consd. [para. 67].

Cunningham v. Western Union Insurance Co., [1980] I.L.R. 797, consd. [para. 71].

Markus v. Western Union Insurance Co. (1964), 48 W.W.R.(N.S.) 428 (Alta. C.A.), consd. [para. 73].

Statutes Noticed:

Insurance Act, R.S.C. 1980, c. I-5, sect. 205, sect. 211 [para. 65]; sect. 320 [para. 17].

Authors and Works Noticed:

Appleman, Insurance Law and Practice (1942), vol. 8, para. 4742 et seq. [para. 53].

Couch on Insurance (2nd Ed.), vol. 12, [para. 45]; 200 [para. 43].

Snell's Principles of Equity (27th Ed. 1973), p. 175 [para. 27].

Waters, The Law of Trusts in Canada (1974), pp. 281 [para. 27]; 282 [para. 28].

Counsel:

G.A. Hardy, for the plaintiff;

T.R. Croll, for the defendant;

H.B. Madill, for the third party.

This case was heard at Edmonton, Alberta, before MILLER, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 1, 1983: