Mahoney v. Cumis Life Insurance Co., (2011) 301 N.S.R.(2d) 302 (CA)

• Judge: Saunders, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 16, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 301 N.S.R.(2d) 302 (CA);2011 NSCA 31

Mahoney v. Cumis Life (2011), 301 N.S.R.(2d) 302 (CA);

    953 A.P.R. 302

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MR.061

Mary Isobel Mahoney (appellant) v. Cumis Life Insurance Company (respondent)

(CA 327577; 2011 NSCA 31)

Indexed As: Mahoney v. Cumis Life Insurance Co.

Nova Scotia Court of Appeal

Saunders, Hamilton and Fichaud, JJ.A.

March 30, 2011.

Summary:

Mr. Mahoney had a heart condition for several years. After being in a motor vehicle accident, he had a heart attack and died. His widow sued Mr. Mahoney's life insurer for benefits under an accidental death policy. The insurer moved under Civil Procedure Rule 12 for a determination that Mr. Mahoney's death was not an "accidental death" as defined in the policy or, alternatively, that coverage was excluded by the policy because Mr. Mahoney's death was caused, directly or indirectly, by infirmity, illness or disease. The chambers judge decided Mr. Mahoney's death was not "accidental" under the policy because of his pre-existing condition, and, alternatively, coverage would be excluded. The chambers judge dismissed Ms. Mahoney's action. Ms. Mahoney appealed. She argued that rule 12 authorized a determination of only an issue of law, and did not permit the judge to decide an issue of fact, namely the cause of Mr. Mahoney's death.

The Nova Scotia Court of Appeal held that rule 12 entitled the insurer to an interpretation of the policy's unambiguous terms and there was no error in the judge's interpretation of the policy. However, Mr. Mahoney's cause of death was a question of fact, it was not an issue of law to be determined under rule 12. Further, the judge's order dismissed Ms. Mahoney's action when rule 12 only authorized the determination of a point of law. The court allowed the appeal in part and replaced the chambers judge's order with an order that, if it was determined that Mr. Mahoney's pre-existing heart condition even partially contributed to his death, then the terms of the insurance policy would deny coverage or exclude Ms. Mahoney's claim.

Insurance - Topic 7223

Life insurance - Defences and exclusions - Preexisting illness - [See Insurance - Topic 7232.1 ].

Insurance - Topic 7232.1

Life insurance - Defences and exclusions - Death due to disease or sickness (accidental death policy) - Mr. Mahoney had a heart condition for several years - After being in a motor vehicle accident, he had a heart attack and died - His widow sued Mr. Mahoney's life insurer for benefits under an accidental death policy - The insurer moved under Civil Procedure Rule 12 for a determination that Mr. Mahoney's death was not an "accidental death" as defined in the policy or, alternatively, that coverage was excluded by the policy because Mr. Mahoney's death was caused, directly or indirectly, by infirmity, illness or disease - The chambers judge decided Mr. Mahoney's death was not "accidental" under the policy because of his pre-existing condition, and, alternatively, coverage would be excluded - The chambers judge dismissed Ms. Mahoney's action - Ms. Mahoney appealed - The Nova Scotia Court of Appeal held that rule 12 entitled the insurer to an interpretation of the policy's unambiguous terms and there was no error in the judge's interpretation of the policy - However, Mr. Mahoney's cause of death was a question of fact, it was not an issue of law to be determined under rule 12 - Further, the judge's order dismissed Ms. Mahoney's action when rule 12 only authorized the determination of a point of law - The court allowed the appeal in part and replaced the chambers judge's order with an order that, if it was determined that Mr. Mahoney's pre-existing heart condition even partially contributed to his death, then the terms of the insurance policy would deny coverage or exclude Ms. Mahoney's claim.

Insurance - Topic 7250

Life insurance - Payment of proceeds - Accidental death - What constitutes an accident - [See Insurance - Topic 7232.1 ].

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - [See Insurance - Topic 7232.1 ].

Cases Noticed:

Frank v. Purdy Estate (1995), 142 N.S.R.(2d) 50; 407 A.P.R. 50 (C.A.), refd to. [para. 11].

A.B. v. Bragg Communications Inc. et al. (2011), 301 N.S.R.(2d) 34; 953 A.P.R. 34; 2011 NSCA 26, refd to. [para. 11].

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 11].

Turner v. Halifax (Regional Municipality) et al. (2009), 283 N.S.R.(2d) 239; 900 A.P.R. 239; 2009 NSCA 106, refd to. [para. 11].

Seacoast Towers Services Ltd. v. MacLean (1986), 75 N.S.R.(2d) 70; 186 A.P.R. 70 (C.A.), refd to. [para. 15].

Dalhousie University v. Aylward (2011), 300 N.S.R.(2d) 393; 950 A.P.R. 393; 2011 NSCA 20, affing. (2010), 289 N.S.R.(2d) 81; 916 A.P.R. 81; 2010 NSSC 65, refd to. [para. 21].

Ristow v. National Bank Financial Ltd. - see National Bank Financial Ltd. v. Potter et al.

National Bank Financial Ltd. v. Potter et al. (2010), 296 N.S.R.(2d) 32; 940 A.P.R. 32; 2010 NSCA 79, refd to. [para. 21].

Brill v. Nova Scotia (Attorney General) (2010), 294 N.S.R.(2d) 307; 933 A.P.R. 307; 2010 NSCA 69, refd to. [para. 21].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 12 [para. 14].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Daniel J. MacIsaac, for the appellant;

Karen N. Bennett-Clayton and Matthew W. Pierce, for the respondent.

This appeal was heard on March 16, 2011, at Halifax, N.S., before Saunders, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on March 30, 2011.