Hornburg and Hornburg v. Toole, Peet & Co. Ltd., Canadian Home Assurance Co., Marklinger and Smith, (1980) 28 A.R. 546 (QB)

• Judge: Power, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 22, 1980
• Citations: (1980), 28 A.R. 546 (QB)

Hornburg v. Toole, Peet & Co. (1980), 28 A.R. 546 (QB)

MLB headnote and full text

Hornburg and Hornburg v. Toole, Peet & Co. Ltd., Canadian Home Assurance Co., Marklinger and Smith

(No. 138488)

Indexed As: Hornburg and Hornburg v. Toole, Peet & Co. Ltd., Canadian Home Assurance Co., Marklinger and Smith

Alberta Court of Queen's Bench

Judicial District of Calgary

Power, J.

August 22, 1980.

Summary:

The plaintiffs brought an action against an insurance company, an insurance agency, and two employees of the agency, for loss sustained as a result of a fire. The plaintiffs occupied their home only on a casual basis during weekends at the time a home owner's policy was in force. No questions were asked by the agency regarding whether the residence was to be occupied on a full-time basis or as a seasonal or weekend dwelling.

The Alberta Court of Queen's Bench dismissed the plaintiffs' action against the insurance company and allowed the action against the insurance agency. The court held that there was a duty on the insurance agent to take some initiative or precautions to ensure that the client had adequate coverage.

Insurance - Topic 510

Agents - Liability of agent - Negligence - Obtaining adequate coverage - No questions were asked by an insurance agent regarding whether or not a home was to be occupied on a fulltime basis or on a seasonal or weekend basis - A standard home owner's policy issued and the building was subsequently destroyed by fire when it was used only on a casual basis - The Alberta Court of Queen's Bench held that there was a duty on an insurance agent to take some initiative or precautions to ensure that the client had adequate coverage - See paragraph 31.

Interest - Topic 5304

Interest as damages - Interest on payment of money or debt withheld - Amount due under insurance contract - The Alberta Court of Queen's Bench awarded interest on damages at 12% per annum from the date of filing of the proof of loss to the date payment was received - See paragraphs 35 and 36.

Practice - Topic 7155

Costs - Party and party costs - Sanderson order - Liability for costs of successful defendant - The Alberta Court of Queen's Bench held that because it was reasonable for the plaintiff to join the successful defendant as a party, the costs of the successful defendant were to be paid directly by the unsuccessful defendant - See paragraphs 37 to 42.

Cases Noticed:

McKay v. Norwich Union Insur. Co. (1896), 27 O.R. 251, consd. [para. 23].

Smith v. City of London Insur. Co. (1887), 14 O.A.R. 328; [1889] 15 S.C.R. 69, consd. [para. 24].

Fine Flowers Ltd. v. General Accident Assurance Co. (1977), 17 O.R.(2d) 529 (C.A.), consd. [para. 29].

Lahey v. Hartford Fire Ins. Co., [1968] 1 O.R. 727, consd. [para. 30].

Neil's Tractor and Equipment Ltd. v. Butler, Maveety & Maryland Casualty Company, 2 Alta. L.R.(2d) 187; 5 A.R. 91 (Alta.S.C.), consd. [para. 30].

Peter Unruh Construction Co. Ltd. v. Kelly-Lucy & Cameron Adjusters Ltd., Swift & J.A. Burniston Insurance, [1976] 4 W.W.R. 419, consd. [para. 30].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1963] 2 All E.R. 575, consd. [para. 30].

Canadian National Fire Insurance Company v. Colonsay Hotel Co., [1923] S.C.R. 688, consd. [para. 34].

Chenier v. Madill (1974), 43 D.L.R. (3d) 50, consd. [para. 35].

MacLeod v. Great West Distributors Limited and Whyte & Company Limited, [1941] 3 W.W.R. 827, consd. [para. 39].

Authors and Works Noticed:

Orkin, The Law of Costs, pp. 32 and 33 [para. 38].

Counsel:

J.A. Sutherland, for the plaintiffs;

G.N. McDermid, for the defendants Toole & Co., Adrian Marklinger and Thelma Smith;

T.H. Ferguson and H.R. Norman, for Canadian Home Assurance Co.

This case was heard before POWER, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary.

The judgment of POWER, J., was delivered on August 22, 1980.