Ritchie v. Sun Alliance Insurance Co., (1992) 122 N.B.R.(2d) 322 (TD)

• Judge: Jones, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 21, 1992
• Jurisdiction: New Brunswick
• Citations: (1992), 122 N.B.R.(2d) 322 (TD)

Ritchie v. Sun Alliance Ins. Co. (1992), 122 N.B.R.(2d) 322 (TD);

    122 R.N.-B.(2e) 322; 306 A.P.R. 322

MLB headnote and full text

[French language version follows English language version]

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

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Trevor Ritchie, a minor by his Litigation Guardian Daniel Doiron (plaintiff) v. Sun Alliance Insurance Co. (defendant)

(S/C/1088/90)

Indexed As: Ritchie v. Sun Alliance Insurance Co.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Jones, J.

March 11, 1992.

Summary:

The tenant vacated the premises. The owner arranged for the premises to be inspected each day. Shortly after the tenant vacated the premises, the heating pipes froze and caused water damage. The insurer sub­mitted that the loss was not covered because the premises were vacant. The owner claimed the premises were unoc­cupied, not vacant. Under the terms of the policy, co­verage would continue provided the unoc­cupied premises were inspected each day.

The New Brunswick Court of Queen's Bench, Trial Division, held that the insurer was liable for the loss.

Insurance - Topic 5587

Fire insurance - The risk or perils - Material misdescription and changes - Vacancy or failure to occupy - The tenant vacated the premises - Only the owner's fridge and stove, as well as a few minor furnishings, remained on the premises - The premises were inspected daily and the heat was set at 65 - The heating pipes froze and caused water damage - The insurer submitted that the loss was not covered because the premises were vacant - The owner claimed that the premises were unoccupied, not vacant - The New Brunswick Court of Queen's Bench, Trial Division, held that the insurer was liable for the loss - See paragraph 36.

Cases Noticed:

Chase and Chase v. Hudson Bay Insurance Co. and Abner B. Belyea and Son Ltd. (1977), 17 N.B.R.(2d) 614; 23 A.P.R. 23, dist. [para. 27].

Cormier and Cormier v. Economic Mutual Insurance Co. (1977), 20 N.B.R.(2d) 188; 34 N.B.R. 188, consd. 28].

Gagnon v. Commercial Union Assurance Co. of Canada and Assurance Roussel Ltée (1985), 60 N.B.R.(2d) 405; 157 A.P.R. 405, consd. [para. 29].

Cody v. Beaver Insurance Company, [1964] I.L.R. 1-130; 48 W.W.R.(N.S.) 178; 45 D.L.R.(3d) 531, consd. [para. 30].

Metcalfe v. General Accident Assurance Co of Canada, [1930] 2 D.L.R. 265; 65 O.L.R. 643, consd. [para. 33].

Golob et al. v. Dumfries Mutual Fire In­surance Co., [1979] I.L.R. 1-1126; 25 O.R.(2d) 65; 100 D.L.R.(3d) 737, consd. [para. 34].

Lewis v. Economical Mutual Insurance Company (1977), 16 N.B.R.(2d) 408; 21 A.P.R. 408, consd. [para. 37].

Counsel:

Stephen J. Ritchie and Maria Henheffer, for the plaintiff;

Brenda J. Lutz, for the defendant.

This matter was heard in Saint John, N.B., on February 21, 1992, by Jones, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following decision on March 11, 1992.