Wawanesa Mutual Insurance Co. v. Hewson

• Jurisdiction: Saskatchewan
• Judge: Gerein
• Neutral Citation: 2003 SKQB 116
• Citation: (2003), 231 Sask.R. 83 (QB),2003 SKQB 116,231 SaskR 83,(2003), 231 SaskR 83 (QB),231 Sask.R. 83
• Date: 11 March 2003
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Wawanesa Mutual v. Hewson (2003), 231 Sask.R. 83 (QB)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. MR.063

The Wawanesa Mutual Insurance Company (plaintiff) v. Larry Hewson and Jean Hewson (defendants)

(2000 Q.B.G. No. 493; 2003 SKQB 116)

Indexed As: Wawanesa Mutual Insurance Co. v. Hewson

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Gerein, C.J.Q.B.

March 11, 2003.

Summary:

A father owned a farm. His son was injured when a hay bale fell on him. He sued his father. The father's insurer brought an action to determine whether it was bound to indemnify the father with respect to any liability by the father.

The Saskatchewan Court of Queen's Bench dismissed the insurer's action, holding that the insurer was required to indemnify the father with respect to his son's claim and to defend the action which had been brought.

Insurance - Topic 6823

Liability insurance - Homeowner's comprehensive policy - Exclusions - Residing in same household - A 17 year old was injured while moving hay on his father's farm - He sued his father - An exclusion clause in the father's insurance policy stated that "You are not insured for claims made or actions brought against you for: ... (3) bodily injury to you or to any person residing in your household other than an employee ..." - The Saskatchewan Court of Queen's Bench held that the policy did not preclude an insured from bringing a claim against another insured (coverage was joint, not several); the exclusion clause did not apply to an insured or a resident of an insured's household if that person was an employee of an insured; the exclusion clause did not apply here because the son, at the relevant time, was an employee of the insured, his father; and the insurer was required to indemnify the father with respect to his son's claim and to defend the action which had been brought.

Cases Noticed:

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. 15].

Derksen et al. v. 539938 Ontario Ltd. et al., [2001] 3 S.C.R. 398; 277 N.R. 82; 153 O.A.C. 310, refd to. [para. 15].

Appel v. Dominion of Canada General Insurance Co., [1998] 1 W.W.R. 592; 95 B.C.A.C. 122; 154 W.A.C. 122 (C.A.), refd to. [para. 16].

Rankin et al. v. North Waterloo Farmers Mutual Insurance Co. (1980), 100 D.L.R.(3d) 564 (Ont. C.A.), refd to. [para. 21].

Oshawa Group Ltd. v. Great American Insurance Co. et al. (1982), 132 D.L.R.(3d) 453 (Ont. C.A.), refd to. [para. 23].

Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445; 94 N.R. 261, consd. [para. 25].

Wigmore v. Canadian Surety Co. et al., [1996] 9 W.W.R. 406; 144 Sask.R. 285; 124 W.A.C. 285 (C.A.), folld. [para. 28].

Goffin v. Abbey Life Insurance Co. of Canada (1996), 144 Sask.R. 299; 124 W.A.C. 299 (C.A.), refd to. [para. 37].

Ellis v. Canada (Minister of National Revenue), [1993] T.C.J. No. 593, refd to. [para. 40].

Gilbert v. Canada (Minister of National Revenue), [1995] T.C.J. No. 1136, refd to. [para. 40].

Wiebe Door Services Ltd. v. Minister of National Revenue (1986), 70 N.R. 214; 87 D.T.C. 5025 (F.C.A.), refd to. [para. 40.].

Spill v. Friesen, [1994] M.J. No. 648, refd to. [para. 40].

Duquette v. Kent & Essex Mutual Insurance Co. (1992), 9 O.R.(3d) 436 (Gen. Div.), refd to. [para. 40].

Robitaille v. Vancouver Hockey Club Ltd. (1979), 19 B.C.L.R. 158 (S.C.), refd to. [para. 40].

McLeod and Kaiser v. Maloney (1992), 136 A.R. 219; 6 Alta. L.R.(3d) 379 (Q.B.), refd to. [para. 40].

Farm Bureau Mutual Insurance Company v. Weber (1976), 245 N.W.R.(2d) 238, refd to. [para. 40].

Counsel:

S.A. Busse, Q.C., for the plaintiff;

S.J. Demmans, for the defendants;

R.G. Kennedy, Q.C., for Dayton Hewson, as an intervenor.

This action was heard by Gerein, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following decision on March 11, 2003.