Winch v. Keogh et al., (2006) 214 O.A.C. 23 (CA)

• Judge: Simmons, Armstrong and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 26, 2006
• Jurisdiction: Ontario
• Citations: (2006), 214 O.A.C. 23 (CA)

Winch v. Keogh (2006), 214 O.A.C. 23 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AU.020

Lori Winch (plaintiff) v. Francis Kedgh, Aragon Distilleries and CAA Insurance Company (appellant/defendants) and Royal & Sun Alliance Insurance Company Hogtown Brewing Company Inc., CGU Insurance Company of Canada, Bruce Stewart and Spriggs Insurance Brokers Limited (respondent/third parties)

(C44535)

Indexed As: Winch v. Keogh et al.

Ontario Court of Appeal

Simmons, Armstrong and LaForme, JJ.A.

August 4, 2006.

Summary:

A plaintiff sued for damages for injuries suffered in a motor vehicle accident. At the time of the accident, the defendant was driving a cube van with a manufacturer's gross weight rating of more than 4,500 kilograms. The defendant's insurance policy provided coverage for other vehicles driven by the insured but excluded vehicles with a manufacturer's gross weight rating of more than 4,500 kilograms. A motion was commenced to determine a point of law respecting the operation of s. 258 of the Ontario Insurance Act.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 953, held that the insurer was not obliged under s. 258(1) to compensate the plaintiff. The plaintiff's insurer appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 3162

Payment of insurance proceeds - Actions - By judgment creditor against debtor's insurer - When available - A plaintiff obtained judgment against the defendant for damages for injuries suffered in a motor vehicle accident - Under s. 258 of the Ontario Insurance Act, a person with a judgment against an insured could have the money payable under an insurance contract applied in satisfaction of the judgment - The defendant's insurer asserted that the defendant's policy excluded coverage because the defendant had been driving a vehicle with a manufacturer's gross weight rating of more than 4,500 kilograms - The Ontario Court of Appeal affirmed that there was no third party recovery under s. 258(1) because the insured would not have been entitled to recover under the policy - Section 258(1) was triggered only where a person had a claim against an insured for which indemnity was provided - Section 258(4) and 258(5) did not preclude the insurer from raising the exclusion defence against the plaintiff - Those sections applied only after the possibility of indemnity to the insured was established.

Insurance - Topic 5147

Automobile insurance - Compulsory government schemes - Third party claims - Defence by insurer respecting extent or validity of coverage or policy - [See Insurance - Topic 3162 ].

Cases Noticed:

Walker v. Allstate Insurance Co. of Canada, [1989] O.J. No. 710 (C.A.), refd to. [para. 4].

Campanaro v. Kim (1998), 112 O.A.C. 171 (C.A.), refd to. [para. 10].

Ashton v. Tu et al. (1998), 110 O.A.C. 283 (C.A.), refd to. [para. 10].

Joachin et al. v. Abel et al. (2003), 170 O.A.C. 294 (C.A.), refd to. [para. 10].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 258(1), sect. 258(4), sect. 258(5) [para. 6].

Counsel:

James M. Regan, for the appellant CAA Insurance Co.;

Saiyed F. Ahmed, for the respondent, Royal & Sun Alliance Insurance Company.

This appeal was heard on June 26, 2006, by Simmons, Armstrong and Laforme, JJ.A., of the Ontario Court of Appeal. The court released the following judgment on August 4, 2006.