State Farm Fire and Casualty Co. v. Royal Insurance of Canada, (1998) 115 O.A.C. 388 (CA)

• Judge: Carthy, Doherty and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 26, 1998
• Jurisdiction: Ontario
• Citations: (1998), 115 O.A.C. 388 (CA)

State Farm Fire v. Royal Ins. (1998), 115 O.A.C. 388 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. NO.037

State Farm Fire and Casualty Company (appellant) v. Royal Insurance of Canada (respondent)

(C28162)

Indexed As: State Farm Fire and Casualty Co. v. Royal Insurance of Canada

Ontario Court of Appeal

Carthy, Doherty and Feldman, JJ.A.

October 30, 1998.

Summary:

Reid allegedly shot Paquette in a hunting accident. Paquette asserted a claim against Reid. State Farm insured Reid under a homeowner's insurance policy. Royal Insur­ance also insured Reid under a commercial general liability policy. Each policy con­tained provisions which limited the insurer's obligations to indemnify where the insured had other insurance available. The court was asked to decide whether both insurers were liable to contribute rateably to defend and or to indemnify Reid, or whether the Royal policy was excess to the State Farm policy.

The Ontario Court (General Division), in a decision reported at 40 O.T.C. 161, held that the State Farm policy was primary and that the Royal policy was excess in response to any claim advanced against Reid in relation to the hunting accident. State Farm appealed.

The Ontario Court of Appeal allowed the appeal. The court declared that the Royal policy would share in accordance with para­graph 9(c) of that policy with the policy issued by State Farm.

Insurance - Topic 725

Insurers - Duties - Duty to defend - [See Insurance - Topic 785 ].

Insurance - Topic 785

Insurers - Liability - Where two or more policies cover risk - Primary v. excess insurance - Reid allegedly shot Paquette in a hunting accident - Paquette asserted a claim against Reid - State Farm insured Reid under a homeowner's insurance pol­icy - Royal Insurance also insured Reid under a commercial general liability policy - Each policy contained provisions which limited the insurer's obligations to indem­nify where the insured had other insurance available - At issue was whether both insurers were liable to contribute rateably to defend and or to indemnify Reid, or whether the Royal policy was excess to the State Farm policy - The Ontario Court of Appeal declared that the Royal policy would share in accordance with paragraph 9(c) of that policy with the policy issued by State Farm.

Counsel:

Robin J. Cumine, Q.C., for the appellant;

Craig Anderson, for the respondent.

This appeal was heard on October 26, 1998, before Carthy, Doherty and Feldman, JJ.A., of the Ontario Court of Appeal. The following endorsement of the Court of Appeal was delivered on October 30, 1998.