Parsons et al. v. Wall et al., (2006) 253 Nfld. & P.E.I.R. 320 (NLTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 20, 2006
• Jurisdiction: Newfoundland and Labrador
• Citations: (2006), 253 Nfld. & P.E.I.R. 320 (NLTD)

Parsons v. Wall (2006), 253 Nfld. & P.E.I.R. 320 (NLTD);

    759 A.P.R. 320

MLB headnote and full text

Temp. Cite: [2006] Nfld. & P.E.I.R. TBEd. JA.019

Stephen Parsons, by His Guardian Ad Litem, Louise Parsons (plaintiff) v. Peter T. Wall (first defendant), John Wayne Robinson (second defendant), Lawrence J. Tucker (third defendant), Lawrence Tucker (fourth defendant) and M.J. Oppenheim, C.A., Attorney- in-fact for Lloyds Non-Marine Underwriters (third party)

(1998 St. J. No. 0290)

Larry Tucker (plaintiff) v. Peter T. Wall (first defendant), John Wayne Robinson (second defendant) and M.J. Oppenheim, C.A., Attorney-in-fact for Lloyds Non-Marine Underwriters (third party)

(1998 St. J. No. 1066)

Scott Lewis (plaintiff) v. Peter T. Wall (first defendant), John Wayne Robinson (second defendant), Lawrence J. Tucker (third defendant), Lawrence Tucker (fourth defendant) and M.J. Oppenheim, C.A., Attorney-in-fact for Lloyds Non-Marine Underwriters (third party)

(1998 St. J. No. 2737)

Paul Mahoney (plaintiff) v. Larry Tucker Senior (first defendant), Larry Tucker Junior (second defendant), Peter Wall (third defendant), John Wayne Robinson (fourth defendant) and M.J. Oppenheim, C.A., Attorney-in-fact for Lloyds Non-Marine Underwriters (third party)

(1999 St. J. No. 1897)

(2006 NLTD 12)

Indexed As: Parsons et al. v. Wall et al.

Newfoundland and Labrador Supreme Court

Trial Division

Adams, J.

January 20, 2006.

Summary:

Robinson and Wall were defendants in several actions arising out of a motor vehicle accident. Robinson's automobile insurer (Lloyds) refused to defend him and was named as a third party. Robinson applied for an order that Lloyds had a duty to defend him. Lloyds applied for an order that the insurers of Wall, who was the registered owner of the car Robinson was operating, provide a defence for Robinson.

The Newfoundland and Labradror Supreme Court, Trial Division, allowed Robinson's application. Lloyds had a duty to defend Robinson and Robinson was entitled to independent counsel funded by Lloyds. The court dismissed Lloyds' application.

Insurance - Topic 723

Insurers - Duties - Duty where insurer's interest at variance with insured - Robinson and Wall were defendants in several actions arising out of motor vehicle accident - Robinson had an automobile insurance policy with Lloyds that covered all vehicles owned by him - The vehicle Robinson was operating was not named in the policy nor was it registered in Robinson's name on the day of the accident - The vehicle was actually registered in Wall's name - Robinson claimed that Wall sold the vehicle to him the day before the accident - Lloyds refused to defend Robinson and was named as a third party - The Newfoundland and Labrador Supreme Court, Trial Division, held that Lloyds had a duty to defend Robinson - From the outset of the litigation, Lloyds had taken the position that the vehicle was not owned by Robinson, that the sale was a sham conspired by Wall and Robinson to commit fraud and that Robinson had committed other significant policy breaches - The court held that given the incongruity of Lloyds' position with that of Robinson and its hostility toward Robinson, he was entitled to independent counsel funded by Lloyds - See paragraphs 31 to 40.

Insurance - Topic 725

Insurers - Duties - Duty to defend - Robinson and Wall were defendants in several actions arising out of a motor vehicle accident - Robinson had an automobile insurance policy with Lloyds that covered all vehicles owned by him - The vehicle Robinson was operating was not named in the policy nor was it registered in Robinson's name on the day of the accident - The vehicle was actually registered in Wall's name - Robinson claimed that Wall sold the vehicle to him the day before the accident - Lloyds refused to defend Robinson and was named as a third party - Robinson applied for an order that Lloyds had a duty to defend him - Lloyds argued that an application was not a proper forum to make findings of fact and that the duty to defend arose from the pleadings, notably the statement of claim and that they stated that Wall was the owner of the vehicle - The Newfoundland and Labrador Supreme Court, Trial Division, allowed Robinson's application - It was not necessary to make a finding of fact that Robinson was the actual owner of the vehicle - It was sufficient to ground the duty to defend if the pleadings, read with the widest latitude, presented the mere possibility that the claim fell into coverage under the policy and might succeed - See paragraphs 14 to 30.

Insurance - Topic 725

Insurers - Duties - Duty to defend - [See Insurance - Topic 723 ].

Insurance - Topic 3081

Payment of insurance proceeds - Actions - General - Insured's right to control defence or appoint counsel - [See Insurance - Topic 723 ].

Cases Noticed:

Longo v. Maciorowski et al. (2000), 137 O.A.C. 159; 50 O.R.(3d) 595 (C.A.), appld. [para. 14, footnote 1].

Veillieux v. Chambers et al. (1995), 25 O.R.(3d) 538 (Gen. Div.), not folld. [para. 15, footnote 2].

Colitti v. Popp et al. (1998), 65 O.T.C. 148; 20 C.P.C.(4th) 363 (Gen. Div.), not folld. [para. 15, footnote 2].

Drane v. Optimum Frontier Insurance Co. (2004), 272 N.B.R.(2d) 241; 715 A.P.R. 241; 2004 NBCA 52, appld. [para. 18, footnote 3].

Morrison v. Co-operators General Insurance Co. (2004), 273 N.B.R.(2d) 361; 717 A.P.R. 361; 2004 NBCA 62, appld. [para. 18, footnote 3].

Parlee v. Pembridge Insurance Co. (2005), 283 N.B.R.(2d) 75; 740 A.P.R. 75; 2005 NBCA 49, refd to. [para. 18, footnote 3].

Twin Cities Mechanical and Electrical Inc. v. Progress Homes Inc. - see Progress Homes Inc. v. Newton Engineering Ltd. et al.

Progress Homes Inc. v. Newton Engineering Ltd. et al. (2004), 239 Nfld. & P.E.I.R. 224; 709 A.P.R. 224; 2004 NLSCTD 157, affd. (2004), 241 Nfld. & P.E.I.R. 342; 716 A.P.R. 342; 2004 NLCA 69, appld. [para. 19, footnote 4].

Nichols v. American Home Assurance Co. et al., [1990] 1 S.C.R. 801; 107 N.R. 321; 39 O.A.C. 63, refd to. [para. 26].

Roman Catholic Episcopal Corp. of St. George's v. Insurance Corp. of Newfoundand (2003), 232 Nfld. & P.E.I.R. 65; 690 A.P.R. 65; 2003 NLCA 65, refd to. [para. 26].

Zurich of Canada v. Renaud & Jacob, [1996] R.J.Q. 2160 (C.A.), refd to. [para. 37, footnote 5].

Statutes Noticed:

Automobile Insurance Act, R.S.N.L. 1990, c. A-22, sect. 28(14), sect. 28(15) [para. 32 et seq.].

Counsel:

Augustine F. Bruce, for the applicant; John Wayne Robinson;

Terry Rowe, for the first defendant/respondent, Peter Wall;

Todd S. Newhook, for the third party/applicant, M.J. Oppenheim, C.A.

These applications were heard at St. John's, Nfld. and Lab., by Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on January 20, 2006.