Tench v. Erskine et al.,

• Jurisdiction: Nova Scotia
• Judge: Wright, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Citation: (2006), 244 N.S.R.(2d) 55 (SC),2006 NSSC 115
• Date: 29 March 2006

Tench v. Erskine (2006), 244 N.S.R.(2d) 55 (SC);

    774 A.P.R. 55

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. AP.021

Lawrence Oliver Tench (plaintiff) v. Wesley Erskine (defendant) and Graham Bowlby (third party) and Economical Mutual Insurance Company & Federation Insurance Company of Canada (fourth parties)

(S.H. 174012; 2006 NSSC 115)

Indexed As: Tench v. Erskine et al.

Nova Scotia Supreme Court

Wright, J.

April 12, 2006.

Summary:

The defendant's motor vehicle rear-ended the plaintiff's motor vehicle. The plaintiff's statement of claim alleged that his injuries were caused solely by the defendant's negligence. The defendant third partied Bowlby, alleging that Bowlby exited his father's vehicle in which he was a passenger and assaulted the defendant who had cut them off, causing the defendant to lose control and rear end the plaintiff. Bowlby applied for an order requiring his auto insurer (Economical) and his homeowner's insurer (Federation) to defend him at their expense, by independent defence counsel of his choice. As ancillary relief, Bowlby sought an order requiring Economical and Federation to pay his solicitor-client costs incurred to date through independent legal counsel of his choice, as well as those to be incurred in future.

The Nova Scotia Supreme Court held that Economical had no duty to defend the third party claim. The court held that Bowlby was entitled to be defended by independent counsel of his choice at Federation's expense.

Insurance - Topic 725

Insurers - Duties - Duty to defend - The defendant rear-ended the plaintiff - The plaintiff's statement of claim alleged that his injuries were caused solely by the defendant's negligence - The defendant third partied Bowlby, alleging that Bowlby exited his father's vehicle, in which he was a passenger, and assaulted the defendant who had cut them off, causing the defendant to lose control and rear end the plaintiff - Bowlby applied for an order requiring his auto insurer (Economical) and his homeowner's insurer (Federation) to defend him at their expense, by independent defence counsel of his choice - The Nova Scotia Supreme Court held that Economical had no duty to defend the third party claim - The assault did not arise from the "use or operation" of a motor vehicle - See paragraphs 1 to 37.

Insurance - Topic 725

Insurers - Duties - Duty to defend - The defendant rear-ended the plaintiff - The plaintiff's statement of claim alleged that his injuries were caused solely by the defendant's negligence - The defendant third partied Bowlby, alleging that Bowlby exited his father's vehicle, in which he was a passenger, and assaulted the defendant who had cut them off, causing the defendant to lose control and rear end the plaintiff - Bowlby applied for an order requiring his homeowner's insurer (Federation) to defend him at its expense, by independent defence counsel of his choice - Federation took the position that it would provide a defence to Bowlby while reserving its rights respecting its ultimate obligation to indemnify because it believed that any injuries sustained by the plaintiff resulted from an intentional tort, an excluded risk under the policy - The Nova Scotia Supreme Court held that Bowlby was entitled to be defended by independent counsel of his choice at Federation's expense because the reservation of rights regarding the coverage issue raised a reasonable apprehension of a conflict of interest - See paragraphs 38 to 50.

Insurance - Topic 725.1

Insurers - Duties - Duty to defend - Costs of defence and other expenses - [See second Insurance - Topic 725 ].

Insurance - Topic 3811

Automobile insurance - The contract - Particular terms - Use or operation - What constitutes - [See first Insurance - Topic 725 ].

Cases Noticed:

Nichols v. American Home Assurance Co. et al. (1990), 107 N.R. 321; 39 O.A.C. 63; 68 D.L.R.(4th) 321 (S.C.C.), refd to. [para. 17].

Neary v. Wawanesa Mutual Insurance Co. (2003), 216 N.S.R.(2d) 219; 680 A.P.R. 219 (C.A.), refd to. [para. 24].

Hamel Construction Inc. v. Lombard Canada Ltd. (2005), 232 N.S.R.(2d) 138; 737 A.P.R. 138 (C.A.), refd to. [para. 25].

Amherst (Town) et al. v. Coronation Insurance Co. et al. (1995), 138 N.S.R.(2d) 68; 394 A.P.R. 68 (C.A.), refd to. [para. 26].

Amos v. Insurance Corp. of British Columbia (1995), 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1; 127 D.L.R.(4th) 618 (S.C.C.), refd to. [para. 29].

Lefor v. McClure et al. (2000), 133 O.A.C. 160; 49 O.R.(3d) 557 (C.A.), refd to. [para. 30].

Vytlingam v. Farmer et al. (2005), 199 O.A.C. 136; 76 O.R.(3d) 1 (C.A.), refd to. [para. 30].

Itani v. Poulsen (Stan) Trucking Ltd. et al. (2002), 320 A.R. 375; 288 W.A.C. 375 (C.A.), refd to. [para. 30].

Duval v. Alberta Motor Association Insurance Co. (2000), 259 A.R. 195 (Q.B.), folld. [para. 31].

Holdbrook et al. v. Emeneau et al. (2000), 204 N.S.R.(2d) 96; 639 A.P.R. 96; 2000 NSCA 48, refd to. [para. 34].

Brockton (Municipality) v. Cowan (Frank) Co. et al. (2002), 154 O.A.C. 125; 57 O.R.(3d) 447 (C.A.), refd to. [para. 40].

Zurich of Canada v. Renaud & Jacob, [1996] R.J.Q. 2160 (Que. C.A.), refd to. [para. 40].

Roman Catholic Episcopal Corp. of St. George's v. Insurance Corp. of Newfoundland (2003), 232 Nfld. & P.E.I.R. 65; 690 A.P.R. 65 (N.L.C.A.), refd to. [para. 42].

Morrison v. Co-operators General Insurance Co. (2004), 273 N.B.R.(2d) 361; 717 A.P.R. 361 (C.A.), refd to. [para. 42].

Parlee v. Pembridge Insurance Co. (2005), 283 N.B.R.(2d) 75; 740 A.P.R. 75 (C.A.), refd to. [para. 42].

Counsel:

Robert Carter (watching brief only), for the plaintiff;

Dennise Mack (watching brief only), for the defendant;

Jane Lenehan, for the third party;

Colin Piercey, for Economical Mutual Insurance Co.;

Alain Robichaud, for Federation Insurance Co. of Canada.

This application was heard in Halifax, N.S., on March 29, 2006, by Wright, J., of the Nova Scotia Supreme Court, in Chambers, who delivered the following decision on April 12, 2006.