Wong Estate et al. v. Liberty Mutual Insurance Co. et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Verville, J.
• Citation: (2009), 479 A.R. 383 (QB),2009 ABQB 324
• Date: 14 May 2009
• Subject Matter: INSURANCE

Wong Estate v. Liberty Mutual Ins. (2009), 479 A.R. 383 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.028

Tony Wong, Administrator of the Estate of Nicole Wong, Deceased, Tony Wong, Loretta Wong and Her Majesty The Queen in Right of Alberta, as represented by the Minister of Health (applicants/plaintiffs) v. Liberty Mutual Insurance Company, Liberty Insurance Company of Canada and TD Home and Auto Insurance Company (respondents/defendants)

(0703013254; 2009 ABQB 324)

Indexed As: Wong Estate et al. v. Liberty Mutual Insurance Co. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

May 25, 2009.

Summary:

Lam operated a daycare. An infant in her care died. Lam was convicted of criminal negligence causing death. The plaintiff parents obtained a consent judgment against Lam. Lam's daycare was insured by Liberty under a homeowner's policy. The plaintiffs sued to enforce a claim under the policy. Liberty denied coverage on the basis of a clause excluding "bodily injury ... caused by any criminal act or wilful negligence by the insured". The issue was before the court by way of motion under rule 221.

The Alberta Court of Queen's Bench held that coverage was excluded under the exclusion clause as the claim was based on bodily injury caused by Lam by a criminal act. The court held that Liberty failed to prove coverage would have been excluded by wilful negligence.

Insurance - Topic 3303

Payment of insurance proceeds - Actions - Defences - Criminal act by insured to bring about loss or damage - [See Insurance - Topic 6638.1 ].

Insurance - Topic 6638.1

Multi-peril property insurance - Household or homeowner's policies - Exclusions - Damage from intentional or criminal acts - Lam's daycare was insured by Liberty under a homeowner's policy which excluded coverage (clause 10) for "bodily injury ... caused by any criminal act or wilful negligence by the insured" - An infant in Lam's care died - Lam was convicted of criminal negligence causing death - Consent judgment was obtained against her - The sole issue was whether the infant's death was caused by "any criminal act or wilful negligence" and thereby excluded - Section 529(2) of the Insurance Act provided that unless the insurance contract "provides otherwise", a criminal act by an insured did not vitiate coverage unless the criminal act was intentional - The infant's estate claimed that clause 10 did not exclude coverage because Lam's act of criminal negligence was unintentional - The Alberta Court of Queen's Bench held that clause 10 excluded coverage - The loss resulted from a criminal act by Lam - The court rejected the submission that clause 10 was ambiguous and should be read to exclude only "intentional" criminal acts - Further, since clause 10 of the insurance policy "provides otherwise", s. 529(2) did not apply and it did not matter whether the criminal act was intentional or unintentional - The court opined that coverage would not be excluded for "wilful negligence", as Lam's criminal act was found not to be deliberate.

Cases Noticed:

R. v. Lam (M.), [2003] A.R. Uned. 722; 60 W.C.B.(2d) 84; 2003 ABQB 1017, refd to. [para. 5].

R. v. Lam (M.) (2004), 351 A.R. 335; 2004 ABQB 78, refd to. [para. 5].

Brissette v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; 142 N.R. 104; 58 O.A.C. 10; 96 D.L.R.(4th) 609, refd to. [para. 34].

Iaquone v. Constitution Insurance Co. of Canada, [1985] I.L.R. 7127; 9 C.C.L.I. 293 (Ont. H.C.), refd to. [para. 35].

Devlin v. Co-operative Fire & Casualty Co. et al. (1978), 11 A.R. 271; 90 D.L.R.(3d) 444 (C.A.), refd to. [para. 36].

Gamblin v. O'Donnell et al. (2001), 244 N.B.R.(2d) 102; 634 A.P.R. 102; 207 D.L.R.(4th) 469; 2001 NBCA 109, disagreed with [para. 37].

Sansalone v. Wawanesa Mutual Insurance Co. et al. (1998), 106 B.C.A.C. 268; 172 W.A.C. 268; 158 D.L.R.(4th) 385 (C.A.), refd to. [para. 37].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2001 SCC 24, refd to. [para. 37].

R.E. et al. v. Wawanesa Mutual Insurance Co. et al. (2007), 221 O.A.C. 1; 278 D.L.R.(4th) 15; 2007 ONCA 92, leave to appeal denied (2007), 376 N.R. 396; 245 O.A.C. 397 (S.C.C.), refd to. [para. 37].

Bultar v. Safeco Insurance Co. (1986), 30 D.L.R.(4th) 762; 21 C.C.L.I. 135 (B.C.S.C.), refd to. [para. 37].

Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445; 94 N.R. 261; 59 D.L.R.(4th) 660, refd to. [para. 37].

Insurance Corp. of British Columbia v. Kraiger (2002), 172 B.C.A.C. 291; 282 W.A.C. 291; 2002 BCCA 521, refd to. [para. 38].

Kolta et al. v. State Farm Fire & Casualty Co. et al. (1981), 122 D.L.R.(3d) 126; 32 O.R.(2d) 515 (H.C.), refd to. [para. 38].

Royal Bank of Canada v. Got (W.) & Associates Electric Ltd. et al. (1997), 196 A.R. 241; 141 W.A.C. 241; 47 C.B.R.(3d) 1 (C.A.), affd. [1999] 3 S.C.R. 408; 247 N.R. 1; 250 A.R. 1; 213 W.A.C. 1; 178 D.L.R.(4th) 385, refd to. [para. 38].

Littlefield v. Acadian Insurance Co. (2004), 392 F.3d 1 (1st Cir.), refd to. [para. 38].

Clansmen Resources Ltd. v. Toronto-Dominion Bank (1990), 43 B.C.L.R.(2d) 273; 47 B.L.R. 54 (C.A.), refd to. [para. 50].

Statutes Noticed:

Insurance Act, R.S.A. 2000, c. I-3, sect. 529(2) [para. 26]; sect. 530 [para. 27].

Authors and Works Noticed:

Brown, Craig, Insurance Law in Canada (2007 Looseleaf Update), pp. 18-181 to 18-183 [para. 44].

Counsel:

Gordon W. Sharek, Q.C. (Sharek Logan Collingwood van Leenen LLP), for the applicants/plaintiffs;

Elizabeth M. MacInnis (Weir Bowen LLP), for the respondents/defendants.

This matter was heard on May 14, 2009, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 25, 2009.