Miller Estate v. Co-operators General Insurance Co., 2005 NSSC 260

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 20, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 260;(2005), 237 N.S.R.(2d) 33 (SC)

Miller Estate v. Co-op General (2005), 237 N.S.R.(2d) 33 (SC);

    754 A.P.R. 33

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. OC.006

Robert Joseph Miller and Margaret Miller, as Executors of the Estate of Robert Bruce Miller, deceased (plaintiffs) v. The Co-operators General Insurance Company (defendant)

(S.K. No. 248634; 2005 NSSC 260)

Indexed As: Miller Estate v. Co-operators General Insurance Co.

Nova Scotia Supreme Court

Warner, J.

September 27, 2005.

Summary:

Miller, a single person, died as a result of a head-on collision between the vehicle in which he was a passenger and another vehicle. His estate claimed under the Section B (no-fault Accident Benefits) portion of his driver's auto insurance policy for "incurred funeral expenses" of $27,970 (including the service, coffin, monument, and other incidental expenses). The insurer tendered $1,000 in fulfilment of its obligation.

The Nova Scotia Supreme Court held that the insurer's obligation respecting funeral expenses was limited to $1,000.

Insurance - Topic 1853

The insurance contract - Interpretation of contract - Narrow construction against insurer - Miller, a single person, died as a result of a head-on collision between the vehicle in which he was a passenger and another vehicle - His estate claimed under the Section B (no-fault Accident Benefits) portion of his driver's auto insurance policy for "incurred funeral expenses" of $27,970 - The insurer tendered $1,000 in fulfilment of its obligation - The estate sued the insurer - The Nova Scotia Supreme Court held that the rule of interpretation that insurance coverage should be construed broadly and exclusions narrowly did not apply here - The doctrine had no application to legislatively mandated wording - See paragraph 22.

Insurance - Topic 1857

The insurance contract - Interpretation of contract - Statutory terms - [See Insurance - Topic 1853 and Insurance - Topic 1861 ].

Insurance - Topic 1861

The insurance contract - Interpretation of contract - Contra proferentem rule - Ambiguity construed against insurer - The Nova Scotia Supreme Court held that the doctrine of contra proferentem had no application to legislatively mandated wording - See paragraphs 16 to 21.

Insurance - Topic 1870

The insurance contract - Interpretation of contract - Broad construction in favour of coverage - [See Insurance - Topic 1853 ].

Insurance - Topic 4121

Automobile insurance - Accident benefits - General - The Nova Scotia Supreme Court held that in Nova Scotia, where the tort system still provided the primary basis for recovery of losses, Section B benefits were not intended to constitute more than a limited no-fault benefit, as opposed to full compensation for all actual losses - See paragraph 42.

Insurance - Topic 4131

Automobile insurance - Accident benefits - Death benefit - Funeral expenses - The Nova Scotia Supreme Court held that a reasonable expenditure on a marker, headstone, or monument, as an appurtenance to a burial, was a funeral expense - The reasonableness of an expense depended on the circumstances of the case, including the deceased's station in life and occupation - See paragraphs 48 to 61.

Insurance - Topic 4131

Automobile insurance - Accident benefits - Death benefit - Funeral expenses - The Automobile Insurance Contract Mandatory Conditions Regulations (Regulations) under Nova Scotia's Insurance Act set out the mandatory minimum coverage for Section B, or no-fault Accident Benefits, in automobile insurance policies - Paragraph 2 of Subsection 1, "Medical, Rehabilitation and Funeral Expenses", provided for payment of "Funeral expenses incurred up to the amount of $1,000 in respect of the death of any one person" - Paragraph 5 of Subsection 2, "Death Benefits and Loss of Income Payments", provided that "No amount is payable on death, other than incurred funeral expenses, if no head of the household or dependant survives the deceased by at least 30 days" - The Nova Scotia Supreme Court held that the phrase "other than incurred funeral expenses" in paragraph 5 was a superfluous, but not unreasonable, clarification that payment of funeral expenses was not affected by the absence of a surviving head of household or dependant - Paragraph 5 did not obligate the insurer to pay funeral expenses in addition to the $1,000 referred to in paragraph 2 of Subsection 1 - See paragraphs 1 to 47.

Cases Noticed:

Reeves Estates v. Phoenix Assurance Co. of Canada (1986), 59 Nfld. & P.E.I.R. 33; 178 A.P.R. 33; 1986 CarswellPEI 31 (C.A.), refd to. [para. 4].

Lunenburg Industrial Foundry and Engineering Ltd. et al. v. Commercial Union Assurance Co. of Canada et al. (2005), 230 N.S.R.(2d) 249; 729 A.P.R. 249; 2005 NSSC 23, refd to. [para. 8].

Trail Estate v. Commercial Union Assurance Co. of Canada (1995), 164 N.B.R.(2d) 114; 421 A.P.R. 114; 1995 CarswellNB 409 (T.D.), refd to. [para. 11].

MacLeod v. Lumberman Mutual Casualty Co. (1993), 121 N.S.R.(2d) 146; 335 A.P.R. 146 (S.C.), not folld. [para. 12].

McQueen v. General Accident Assurance Co. of Canada (1996), 152 N.S.R.(2d) 68; 442 A.P.R. 68 (S.C.), not folld. [para. 12].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 16].

Glykis v. Hydro-Québec (2004), 325 N.R. 369; 2004 SCC 60, folld. [para. 17].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488, refd to. [para. 18].

Brissette v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; 142 N.R. 104; 58 O.A.C. 10, refd to. [para. 20].

Chapman v. Coates (1975), 21 N.S.R.(2d) 477; 28 A.P.R. 477 (T.D.), refd to. [para. 52].

Backman v. Scott and Prudential Assurance Co. (1975), 19 N.S.R.(2d) 140; 24 A.P.R. 140 (T.D.), refd to. [para. 52].

Workmen's Compensation Board (N.B.) et al. v. Shirley Estate (1978), 30 N.S.R.(2d) 246; 49 A.P.R. 246 (T.D.), refd to. [para. 52].

Eisan v. Bonang and Bonang (1958), 14 D.L.R.(2d) 750 (N.S.S.C.), refd to. [para. 54].

Statutes Noticed:

Automobile Insurance Contract Mandatory Conditions Regulation - see Insurance Act Regulations (N.S.).

Insurance Act Regulations (N.S.), Automobile Insurance Contract Mandatory Conditions Regulation, Reg. 181/2003, Schedule 2, stat. cond. 1(2), stat. cond. 5(2) [para. 2].

Authors and Works Noticed:

Brown, Craig, and Menezes, Julio, Insurance Law in Canada (2nd Ed. 1991), para. 1:1:2 [paras. 12, 35].

Brown, Craig, and Menezes, Julio, Insurance Law in Canada (Looseleaf), c. 17, pp. 1.1 [para. 44]; 17-1 [para. 40]; 17-15 [para. 41]; s. 17.3(d)(iv) [para. 15].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 5].

Hilliker, Gordon, Liability Insurance Law in Canada (3rd Ed. 2001), c. 4 [para. 39].

Waddams, Stephen M., The Law of Damages (4th Ed. 2004) (Looseleaf), c. 6, 12 [para. 57].

Counsel:

Michael R. Brooker, Q.C., for the applicant;

Pamela Large Moran, for the respondent.

This action was heard at Kentville, N.S., on September 20, 2005, by Warner, J., of the Nova Scotia Supreme Court, who delivered the following decision on September 27, 2005.