Levesque and Levesque v. Smith and Co-Operative Fire and Casualty Co., (1979) 25 N.B.R.(2d) 560 (CA)

• Judge: Hughes, C.J.N.B., Limerick and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 09, 1979
• Jurisdiction: New Brunswick
• Citations: (1979), 25 N.B.R.(2d) 560 (CA)

Levesque v. Smith (1979), 25 N.B.R.(2d) 560 (CA);

    25 R.N.-B.(2e) 560; 51 A.P.R. 560

MLB headnote and full text

Sommaire et texte intégral

Levesque and Levesque v. Smith and Co-Operative Fire and Casualty Company Limited (third party)

Indexed As: Levesque and Levesque v. Smith and Co-Operative Fire and Casualty Co.

Répertorié: Levesque and Levesque v. Smith and Co-Operative Fire and Casualty Co.

New Brunswick Court of Appeal

Hughes, C.J.N.B., Limerick and Ryan, JJ.A.

May 9, 1979.

Summary:

Résumé:

This case arose out of the plaintiff homeowners' claim against the defendant for damages to their house caused by a compressor, which came loose from the truck by which it was being towed and struck the house. The truck driver's motor vehicle liability policy provided coverage for trailers. The plaintiffs' brought an action against the truck driver for damages and the truck driver added his insurer as third party, which refused to indemnify him, because the compressor was not a trailer within the meaning of the policy. The question whether the compressor was a trailer was referred to the New Brunswick Court of Queen's Bench, which in a judgment reported 23 N.B.R.(2d) 711; 44 A.P.R. 711, held that the compressor was not a trailer and dismissed the claim against the insurer. The truck driver appealed.

The New Brunswick Court of Appeal dismissed the appeal and held that the compressor was not a trailer within the meaning of the policy. See paragraphs 5 to 13. Limerick, J.A., dissenting, would have allowed the appeal on the ground that the term "trailer" in the policy was ambiguous and should be construed against the insurer to include the compressor. See paragraphs 15 to 22.

Insurance - Topic 1851

Contract - Rules of Interpretation - General - The New Brunswick Court of Appeal held that the words of an insurance policy should be construed in their ordinary and popular sense in a way most favourable to the insured - See paragraphs 4 and 20.

Insurance - Topic 1861

Contract - Rules of Interpretation - Contra proferentem rule - The New Brunswick Court of Appeal held that any ambiguity in the words of an insurance policy should be construed strongly against the insurer, which prepared the contract - See paragraphs 4 and 20.

Insurance - Topic 4008

Automobile insurance - Risk - Liability policy - Trailer - Defined - An insured rented a compressor, which was mounted on wheels and built to be hitched to another vehicle and towed - The insured towed the compressor with his truck, the insurance on which covered trailers - The compressor came loose and caused damage - The insurer refused to indemnify the insured under his policy, because the compressor was not a trailer and was not covered - The New Brunswick Court of Appeal held that the compressor was not a trailer and that the insured was not covered for damage caused by the trailer - See paragraphs 5 to 13.

Cases Noticed:

Guimond v. Fidelity-Phenix Fire Ins. Co. (1912), 47 S.C.R. 216, appld. [para. 4].

Bowering v. Mutual Life Assurance Co. of Canada, [1975] I.L.R. 1-719; 7 Nfld. & P.E.I.R. 117; 3 A.P.R. 117, appld. [para. 4].

North West Commercial Travellers v. London Guarantee & Accident Co. (1895), 10 Man. L.R. 537, appld. [para. 4].

Sklar v. Saskatchewan Government Insurance Office, [1965] I.L.R. 689, appld. [para. 4].

R. v. Vulcan Asphalt & Supply Co. Ltd. [1964] 1 C.C.C. 198, folld. [para. 10].

Thompson v. Sharpe (1977), 77 D.L.R.(3d) 55, consd. [para. 11].

Statutes Noticed:

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

Authors and Works Noticed:

Black's Law Dictionary (Revised 4th Ed.) [para. 6].

Corpus Juris Secundum, vol. 60, p. 165 [para. 8]; vol. 87, p. 885 [para. 7].

Oxford English Dictionary [para. 5].

Random House Dictionary of the English Language [para. 5].

Counsel:

Peter Dykeman, for the defendant, appellant;

Richard J. Tingley, for the third party respondent.

This case was heard on February 28, 1979, at Fredericton, N.B., before HUGHES, C.J.N.B., LIMERICK and RYAN, JJ.A., of the New Brunswick Supreme Court, Appeal Division.

On May 9, 1979, the judgment of the Appeal Division was delivered and the following opinions were filed:

HUGHES, C.J.N.B. - see paragraphs 1 to 14;

LIMERICK, J.A., dissenting - see paragraphs 15 to 22.

RYAN, J.A., concurred with HUGHES, C.J.N.B.