Canadian Universities Reciprocal Insurance Exchange v. Gan Canada Insurance Co., (1999) 84 O.T.C. 288 (GD)

• Judge: C. Campbell, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 01, 1999
• Jurisdiction: Ontario
• Citations: (1999), 84 O.T.C. 288 (GD)

Univ. Reciprocal Ins. v. Gan Can. Ins. (1999), 84 O.T.C. 288 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. AP.103

Canadian Universities Reciprocal Insurance Exchange (applicant) v. Gan Canada Insurance Company (respondent)

(Court File No. 98-CV-161889)

Indexed As: Canadian Universities Reciprocal Insurance Exchange v. Gan Canada Insurance Co.

Ontario Court of Justice

General Division

C. Campbell, J.

April 15, 1999.

Summary:

The plaintiffs sued Canadian Universities Reciprocal Insurance Exchange ("CURIE") and two universities for allegedly misappropriating a patented invention, seeking damages and royalty payments. Gan Canada Insurance Co. defended the action for the universities. CURIE refused to pay any of Gan's defence costs. CURIE sought a declaration that Gan had no duty to defend the universities and was not entitled to subrogate the defence costs. CURIE asserted that under the policy the plaintiffs' claim was not an "occurrence" and the plaintiffs alleged loss of royalties was not "property damage". Gan asserted that the CURIE policy defined "property" to include both tangible and intangible property, which included the plaintiffs' claim.

The Ontario Court (General Division) held that Gan had no duty to defend and was not entitled to reimbursement or indemnity of defence costs incurred from CURIE. Neither the Gan or CURIE policy covered the plaintiffs' defence costs. The alleged interference with the plaintiffs' intellectual property rights did not come within the definition of "occurrence" or "property damage" as defined in the CURIE policy. The "property damage" was broader than just tangible property. However, there was no "injury to" or "destruction of" patent rights. The court distinguished between a right to property, such as a patent which might have been damaged, and a right to recover royalties under a patent. If the Gan policy covered wrongful interference with patent rights, explicit words would have been used. The court discussed the word "title" within the context of advertising liability coverage.

Insurance - Topic 6864

Liability insurance - Business - Comprehensive policy - Damage to property - What constitutes - See paragraphs 1 to 37.

Insurance - Topic 6866

Liability insurance - Business - Comprehensive policy - Extent of coverage - Defence costs - See paragraphs 1 to 46.

Insurance - Topic 6870

Liability insurance - Business - Comprehensive policy - "Occurrence" - What constitutes - See paragraphs 1 to 35.

Insurance - Topic 6966

Liability insurance - Liability of two or more insurers respecting same risk - Payment of costs of defence - See paragraphs 1 to 46.

Words and Phrases

Occurrence - The Ontario Court (General Division) discussed the meaning of the word "occurrence" as found in a liability insurance police - See paragraphs 10 to 35.

Words and Phrases

Property damage - The Ontario Court (General Division) discussed the meaning of the phrase "property damage" as found in a liability insurance policy - See paragraphs 10 to 37.

Words and Phrases

Title - The Ontario Court (General Division) discussed the meaning of the word "title" in the context of advertising liability coverage - See paragraph 43.

Cases Noticed:

Wisebrod et al. v. Home American Insurance Co. (1997), 104 O.A.C. 229; 35 O.R.(3d) 733 (C.A.), refd to. [para. 15].

Cummings v. Budget Car Rentals Toronto Ltd. et al. (1996), 91 O.A.C. 174; 29 O.R.(3d) 1 (C.A.), refd to. [para. 16].

Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; 147 N.R. 44; 83 Man.R.(2d) 81; 36 W.A.C. 81, refd to. [para. 17].

Kitchener Silo Inc. v. Cigna Insurance Co. of Canada, [1991] I.L.R. 1-2764 (Ont. Gen. Div.), refd to. [para. 20].

Tsubaki of Canada Ltd. v. Standard Tube Canada, [1993] O.J. No. 1855 (Gen. Div.), refd to. [para. 23].

Carleton Iron Works Ltd. v. Ellis-Don Construction Ltd. et al., [1996] I.L.R. 4221; 8 O.T.C. 287 (Gen. Div.), refd to. [para. 24].

Canadian Gypsum v. Gypsum, Lime & Alabastine Can. Ltd., [1931] Ex. C.R. 180, refd to. [para. 28].

Canadian Equipment Sales & Service Co. v. Continental Insurance Co., [1975] I.L.R. 1-680 (Ont. C.A.), refd to. [para. 32].

Greenwood Forest Products Ltd. v. United States Fire Insurance Co. (1982), 133 D.L.R.(3d) 486 (B.C.S.C.), refd to. [para. 32].

Privest Properties Ltd. v. Foundation Co. of Canada Ltd., [1992] I.L.R. 1-2737 (B.C.S.C.), refd to. [para. 33].

Grayson et al. v. Wellington Insurance Co., [1998] I.L.R. 1-3516; 95 B.C.A.C. 103; 154 W.A.C. 103 (C.A.), refd to. [para. 40].

Atlantic Mutual Insurance Co. v. Brotech Corp. (1994), 857 F. Supp. 423 (E.D.P.A.), affd. (1995), 60 F.3d 813 (3rd Cir.), refd to. [para. 43].

Gencor Industries Inc. v. Wausau Underwriters' Insurance Co., 857 F. Supp. 1560 (E.D.), refd to. [para. 44].

Authors and Works Noticed:

Lichty, Mark C., and Snowden, Marcus B., Annotated Commercial General Liability Policy (1998), p. 26 A-11 [para. 43].

Counsel:

Philip Spencer and Marcus B. Snowden, for the applicant;

Larry J. Kielbowich, for the respondent.

This application was heard on April 1, 1999, before C. Campbell, J., of the Ontario Court (General Division), who released the following judgment on April 15, 1999.