Richardson v. State Farm Mutual Automobile Insurance Co. et al., 2012 NBCA 75

• Judge: Bell, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 21, 2012
• Jurisdiction: New Brunswick
• Citations: 2012 NBCA 75;(2012), 393 N.B.R.(2d) 95 (CA)

Richardson v. State Farm (2012), 393 N.B.R.(2d) 95 (CA);

    393 R.N.-B.(2e) 95; 1017 A.P.R. 95

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. SE.045

Renvoi temp.: [2012] N.B.R.(2d) TBEd. SE.045

Robert B. Richardson and Sharon Richardson (plaintiffs/appellants) v. Derri Smith and State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (defendants/respondents)

(152-10-CA; 2012 NBCA 75)

Indexed As: Richardson v. State Farm Mutual Automobile Insurance Co. et al.

Répertorié: Richardson v. State Farm Mutual Automobile Insurance Co. et al.

New Brunswick Court of Appeal

Bell, Quigg and Green, JJ.A.

August 23, 2012.

Summary:

Résumé:

An "incendiary or deliberately set fire" destroyed the Richardsons' home, PT Cruiser and motor home. The insurer denied coverage on the bases that Mr. Richardson had deliberately set the fire. The Richardsons sued the insurer.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 364 N.B.R.(2d) 308; 937 A.P.R. 308, dismissed the action, finding that Mr. Richardson had set the fire. The Richardsons appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Insurance - Topic 6046

Fire insurance - Defences - Deliberate act by insured - General - An "incendiary or deliberately set fire" destroyed the Richardsons' home, PT Cruiser and motor home - Two days after the fire, Mrs. Richardson and their son Robert left for family comfort in Newfoundland, leaving Mr. Richardson to deal with matters - The insurer denied coverage on the bases that Mr. Richardson had deliberately set the fire - The Richardsons sued the insurer - The trial judge dismissed the action, finding, on a balance of probabilities, that Mr. Richardson had set the fire - The fire was deliberately set and Mr. Richardson had the opportunity to set it - The trial judge was satisfied that there was motive to set the fire given the family's problematic (but not ruinous) financial situation and the quick departure for Newfoundland - However, since the trial judge found as a fact that Mr. Richardson had set the fire, he was not sure that the issue of motive had to be predominant - The New Brunswick Court of Appeal upheld the decision, but for different reasons - The standard of proof in civil arson cases did not require the insurer to establish each of the three elements, namely incendiary origin, opportunity, and motive on a balance of probabilities - Instead, the proper test was to assess all of the evidence, and then determine, on a balance of probabilities, whether the insured had set the fire - If a court was satisfied, on a balance of probabilities, that the insured had set the fire, there was no need to establish motive - The trial judge had, in effect, applied the proper test - See paragraphs 1 to 34.

Insurance - Topic 6047

Fire insurance - Defences - Deliberate act by insured - Standard of proof - [See Insurance - Topic 6046 ].

Insurance - Topic 6048

Fire insurance - Defences - Deliberate act by insured - Elements of proof - [See Insurance - Topic 6046 ].

Assurance - Cote 6046

Assurance incendie - Moyens de défense - Acte délibéré de l'assuré - Généralités - [Voir Insurance - Topic 6046 ].

Assurance - Cote 6047

Assurance incendie - Moyens de défense - Acte délibéré de l'assuré - Norme de preuve - [Voir Insurance - Topic 6047 ].

Assurance - Cote 6048

Assurance incendie - Moyens de défense - Acte délibéré de l'assuré - Éléments de preuve - [Voir Insurance - Topic 6048 ].

Cases Noticed:

Rizzo v. Hanover Insurance Co., [1990] O.J. No. 475 (H.C.J.), affd. (1993), 64 O.A.C. 230 (C.A.), leave to appeal denied (1994), 167 N.R. 80; 68 O.A.C. 399 (S.C.C.), not folld. [para. 18].

Foss v. General Accident Assurance Co. of Canada, [1999] N.B.R.(2d) Uned. 148 (T.D.), consd. [para. 21].

Peddle v. General Accident Assurance Co. of Canada (1999), 218 N.B.R.(2d) 306; 558 A.P.R. 306 (T.D.), consd. [para. 21].

Savoie v. General Accident Assurance Co. (1999), 210 N.B.R.(2d) 74; 536 A.P.R. 74 (C.A.), consd. [para. 23].

Black and LaCourse v. State Farm Fire and Casualty Co. (1995), 170 N.B.R.(2d) 151; 435 A.P.R. 151 (C.A.), consd. [para. 24].

Thériault et Ringuette v. General Accident Assurance Co. of Canada (1992), 120 N.B.R.(2d) 285; 302 A.P.R. 285 (T.D.), consd. [para. 24].

Lancer Enterprises Ltd. v. Saskatchewan Government Insurance (2011), 366 Sask.R. 267; 506 W.A.C. 267; 2011 SKCA 28, consd. [para. 25].

Bezdziecki v. Allstate Insurance Co. of Canada, [1998] O.A.C. Uned. 501 (C.A.), consd. [para. 27].

Counsel:

Avocats:

Steven P. Gallagher, for the appellants;

Thomas G. O'Neil, Q.C., and Matthew T. Hayes, for the respondents.

This appeal was heard on March 21, 2012, by Bell, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered in both official languages on August 23, 2012, by Green, J.A.