§ 5. — Premiums, advances and reinstatement of the insurance 2427. In life insurance, the policyholder is entitled to 30 days for the payment of each premium, except the initial premium; the insurance remains in force during the 30 days, but failure to pay the premium within that period terminates the insurance.
The period runs concurrently with any other period granted by the insurer, but it may not be reduced by agreement.
1991, c. 64, a. 2427.
2428. When payment is made by bill of exchange, it is deemed made only if the bill is honoured when first presented.
The payment is also deemed made when the bill is not honoured by reason of the death of the person who issued the bill of exchange, subject to payment of the premium.
1991, c. 64, a. 2428.
2429. The premium does not bear interest during the period allowed for payment, except in group insurance.
Where the insurer is entitled to interest on a premium due, the interest may not be at a higher rate than that fixed by the regulations made to that effect by the Government.
1991, c. 64, a. 2429.
2430. No accident and sickness insurance contract that is in force may be cancelled for non-payment of the premium unless 15 day's prior notice in writing is given to the debtor.
1991, c. 64, a. 2430.
2431. The insurer is bound to reinstate individual life insurance that has been cancelled for non-payment of the premium if the policyholder applies to him therefor within two years from the date of the cancellation and establishes that the insured still meets the conditions required to be insured under the cancelled contract. The policyholder is bound in that case to pay the overdue premiums and repay the advances he has obtained on the policy, with interest at a rate not exceeding the rate fixed by the regulations made to that effect by the Government.
However, the insurer is not bound by the first paragraph if the surrender value has been paid or if the policyholder has elected for a reduction or extension of coverage.
1991, c. 64, a. 2431; I.N. 2014-05-01.
2432. Any amount payable for the reinstatement of a contract may be made out of advances receivable on the policy up to the sum stipulated in the contract.
1991, c. 64, a. 2432.
2433. The insurer may require the payment of overdue premiums when settling a claim under a group life insurance contract or an accident and sickness insurance contract.
The insurer may, for any individual insurance contract, deduct the amount of any overdue premium out of the benefits payable.
1991, c. 64, a. 2433; I.N. 2014-05-01.
2434. Upon the reinstatement of a contract of insurance, the two-year period during which the insurer may apply to have the contract annulled or the coverage reduced by reason of misrepresentation or concealment relating to the risk, or may have effect given to a clause that excludes coverage in case of the suicide of the insured, runs again.
1991, c. 64, a. 2434; I.N. 2014-05-01.
§ 6. — Performance of the contract of insurance 2435. The holder of an accident and sickness policy, or the beneficiary or insured is bound to give written notice of loss to the insurer within 30 days of acquiring knowledge of it. He shall also, within 90 days, transmit all the information to the insurer that he may reasonably expect as to the circumstances and extent of the loss.
The person entitled to the payment is not prevented from receiving it if he proves that it was impossible for him to act within the prescribed time, provided the information is sent to the insurer within one year of the loss.
1991, c. 64, a. 2435; I.N. 2014-05-01.
2436. The insurer is bound to pay the sums insured and the other benefits provided in the policy, in accordance with the conditions of the policy, within 30 days after receipt of the required proof of loss.
However, in accident and sickness insurance, the period is 60 days, unless the policy covers losses of income arising from disability.
1991, c. 64, a. 2436; I.N. 2014-05-01.
2437. Where the insurance covers losses of income arising from disability and the contract stipulates a waiting period, the 30 day period for payment of the first indemnity runs from the expiry of the waiting period.
Subsequent payments are made at intervals of not more than 30 days, provided that proof is furnished to the insurer on request.
1991, c. 64, a. 2437; I.N. 2014-05-01.
2438. The insured shall submit to a medical examination when the insurer is entitled to require it owing to the nature of the disability.
1991, c. 64, a. 2438.
2439. In accident and sickness insurance, where an aggravation of the occupational risk has lasted for six months or more, the insurer may reduce the indemnity provided under the policy to the sum payable for the new risk according to the premium stipulated in the policy.
Where there is a reduction of the occupational risk, the insurer is bound, from receipt of a notice to that effect, to reduce the rate of the premium or to extend the insurance by applying the rate corresponding to the new risk, as the client may elect.
1991, c. 64, a. 2439.
2440. The heirs of the beneficiary of an insurance contract may require the insurer to make a single lump sum payment to them of any sums payable by instalments.
1991, c. 64, a. 2440.
2441. The insurer may not refuse payment of the sums insured by reason of the suicide of the insured unless he expressly stipulated that coverage would be excluded in such a case and, even then, the stipulation is without effect if the suicide occurs after two years of uninterrupted insurance.
Any change made to a contract to increase the amount of coverage is, as regards the additional amount, subject to the initially stipulated exclusion clause for a period of two years of uninterrupted insurance beginning on the effective date of the increase.
2442. A contract of insurance for funeral expenses whereby a person undertakes, for a premium paid in a single payment or by instalments, to provide services or goods upon the death of another person, to pay funeral expenses or to set aside a sum of money for that purpose is null.
Only the person who paid the premium or instalments or the Autorité des marchés financiers acting on his behalf may bring an action for the annulment of the contract or recovery of the premium.
1991, c. 64, a. 2442; 2002, c. 45, s. 161; 2004, c. 37, s. 90.
2443. An attempt on the life of the insured by the policyholder entails, by operation of law, cancellation of the insurance and payment of the surrender value.
An attempt on the life of the insured by any person other than the policyholder entails forfeiture only with respect to that person's right to the coverage.
1991, c. 64, a. 2443; I.N. 2014-05-01.
2444. The benefits established in favour of a member of a mutual benefit association, or of his or her married or civil union spouse, ascendants or descendants are unseizable either for debts of the member or for debts of the beneficiaries.
1991, c. 64, a. 2444; 2002, c. 6, s. 55.
2457. Where the designated beneficiary of the insurance is the married or civil union spouse, descendant or ascendant of the policyholder or of the participant, the rights under the contract are exempt from seizure until the beneficiary receives the sum insured.
1991, c. 64, a. 2457; 2002, c. 6, s. 57.
2458. A stipulation of irrevocability binds the policyholder even if the designated beneficiary has no knowledge of it. As long as the designation remains irrevocable, the rights conferred by the contract on the policyholder, participant or beneficiary are exempt from seizure.
Insurance Law – May 13
rights of the policyholder
Advances
Surrender value
If the surrender value is part of the contract from the beginning, it is a continuous offer from the Insurer. If the policy holder accepts, it ends the contract.
If not mentioned in the contract, offer to purchase comes from Insured; when accepted by Insurer, end of contract.
“Disposition of interest in the policy” taxable under 148 (9) of the Income Tax Act.
If the insurance is cancelled for non-payment of the premium and then reinstated (must be within 2 years from date of cancellation), the 2 year delay within which the insurer can seek nullity for misrepresentation or concealment, or can invoke the suicide clause, “runs again”. (Article 2434).
insured is deemed to have survived the beneficiary
CCQ 2448: co-morientes
2448. Where the insured and the beneficiary die at the same time or in circumstances which make it impossible to determine which of them died first, the insured is, for the purposes of the insurance, deemed to have survived the beneficiary. Where the insured dies intestate, leaving no heir within the degrees of succession, the beneficiary is deemed to have survived the insured. In similar circumstances, the preceding policyholder is deemed to have survived the subrogated policyholder.
Irrevocable / revocable
Default position is revocable when in the will
Default position is revocable when not spouse
Irrevocable when spouse, unless consent or indicated otherwise
What if there is no beneficiary designated?
Where the policy holder is the insured. Death. Proceeds of life insurance go to estate (succession of the deceased)
Where the policy holder is not the insured. The policy holder dies, the insured is still alive. Who gets the rights in the policy?
To subrogated policy holder if there is one. If not, to heirs of policy holder.
Into the estate or not?
See her powerpoint slides and understand
relevance of revocable or irrevocable
unseizability of rights or proceeds arts 2457 and 2458
2457. Where the designated beneficiary of the insurance is the married or civil union spouse, descendant or ascendant of the policyholder or of the participant, the rights under the contract are exempt from seizure until the beneficiary receives the sum insured.
Exemption of seizure of the value that is accumulating in the policy. We are NOT talking about at death.
So where the beneficiary is a family member, it is exempt from seizure for realization to pay debts (until beneficiary receives the sum insured).
2458. A stipulation of irrevocability binds the policyholder even if the designated beneficiary has no knowledge of it. As long as the designation remains irrevocable, the rights conferred by the contract on the policyholder, participant or beneficiary are exempt from seizure.
Describes type of benefit
Where designation says beneficiary is irrevocable, the creditor cannot oblige the cash in of the insurance policy
Once again protecting a privileged / vulnerable class of persons
Insurance Law – May 14
insurance has been a big driving force in rules of interpretations in contracts
the general rules of contractual interpretation reflect exactly what’s going on in the leading case Consolidated Bathurst
exact mirror of the process of interpretation that is provided for in the code
situation of ambiguity can arise from specific the occurrence of specific elements outlined in the code
if there’s no ambiguity, the judge gives the normal meaning to the words
NOT the expert’s meaning
To interpret:
Look to the common intention of the parties
Look at the spirit of the law over the letter of the law
You don’t go too wide if the terms are general and on the flip side you shouldn’t be too restrictive to a clause intended to apply to a specific situation where the contract is intended to apply to general terms
If all the above does not yield a good result where there is an ambiguity, you apply the contra proferentem rule (against the stipulator)
Against the insurer
Only when there is ambiguity which isn’t resolved by the other interpretive methods
What if the ambiguity ends up being in the text that comes out of a statutory condition, or regulation enactment?
In principle, no
This is a CML question where there are statutes governing insurance / contracts
-Appellant is a manufacturer of paper products. They were required to shut down part of its facilities because of the failure of three heat exchangers and suffered loss of 158, 289$ of which 15 604$ was direct damage to the tubes in the heaters.
-The respondent is the insurer under a policy issued in respect of certain property including heat exchangers.
-Respondent resists claim by appellant because the damage was caused by corrosion of the tubes inside the heat exchangers and this risk was specifically excluded from the coverage provided by the policy.
Issue
Was the loss occasioned by the corrosion of the heat exchangers recoverable under the terms of the policy?
-Is consequential loss covered by the policy?
-Is the other loss that happened subject to the indemnity? Held: (2) Yes, otherwise the insured didn’t pay for anything. Appeal allowed.
Reasoning (Estey) The heart of the argument is that while the definition of accident in the policy does not include the event of corrosion or similar events, the defi nition does include, in the appellant's submission, events which succeed and which may be due to the event of corrosion.
The majority of the Supreme Court of Canada concluded that the issue before it was whether the corrosion exclusion clause was to be read, as saying that any cost resultant from corrosion was not covered by the insurance policy, or as saying that only the cost of making good the corrosion itself was excluded.
In interpreting an insurance contract, effect must first be given to the intention of the parties. Step two is the application, when ambiguity is found, of the contra proferentem doctrine by which any doubt as to the meaning and scope of the excluding or limiting term is to be resolved against the party who has inserted it and who is now relying on it.
The Courts look at other exclusion clauses in the contract and says where the insurer wanted to exclude consequences, the insurer uses the words directly and indirectly. For example: war damage. In definition of accident, that formulation is not used, so with respect to these kinds of accidents, there was no exclusion of consequences. Consequences of this type of event would be covered. Such specific language invoked the contra proferentem doctrine against the insurer.
Alternatively, the Courts said that the fairest interpretation applicable to the policy was not literal interpretation, but rather an interpretation that would use the normal rules of construction. Very insistent that intention of parties needs to be looked at in context of commercial relation. Wording has been reproduced in contract. You choose a result which promotes a sensible logical commercial result. Ask question: What did the insured pay for? (Think of Carter Boehm). He is looking at intentions of both parties. If we say there is no coverage for consequential loss, then insured didn’t buy any coverage at all. If the court were to accept the submissions of the respondent, that loss suffered by the insured by reason of the failure of a machine due to wear and tear and the consequential downtime of the plant was excluded by the definition of accident, then the insured would have purchased by its premiums, no coverage for what may well be the most likely source of loss or certainly a risk pervasive through much of the plant. Ritchie (Dissent)
Holds that there is no ambiguity. While the policy here covers damage to property other than the object itself, the coverage is limited to indemni ty in respect of loss or damage to property of the insured directly caused to an object by an accident as that word is defined in the policy. Therefore an interpretation which would result in affording coverage to the insured for consequential damages whether it was due to corro sion or otherwise cannot be adopted.
Rule
1) When interpreting insurance contracts, look to the common intentions of the parties. If ambiguity is found, contra proferentem doctrine applies.
2) Courts will favour an interpretation that gives the contract commercial effectiveness.
Class Notes Facts: There was an accident. Salt water was circulating in the pipes, which caused them damage. There was also damage to the machine. The business also was shut down (losses here). Thus, a number of things flowed from this corrosion in the pipes.
Issue: Is this loss covered?
Reasoning:
Where the insurer wanted to exclude consequential loss, it uses the terminology directly and indirectly
Look at the intention of the parties (especially the commercial reality). You choose the result that is the sensible commercial approach.
If the damage to the property is excluded, and the consequential losses are excluded (as the dissent suggests) then the insured is paying for nothing
Doesn’t think that contra proferentem even needs application in this case
General Notes:
The first judgment is the dissent on Canlii.
Definition of accident (p. 891): “accident shall not mean corrosion…”
But accident is not what we’re claiming for. We’re claiming for loss.
We know the direct damage to the pipe will not be covered because that was corrosion and this is specifically excluded
But what about the other loss?
The insuring agreement says “to pay the insured for loss of or damage to property of the Insured”
Dissent simply says that the policy was only intended to insure damage caused specifically to the property itself
In CML, you’ll find the same approach as in Consolidated Bathurst
Courts ask themselves the question: what was the insured contracting for?
Common intention of the parties
The additional thing that we have in the common law interpretive arsenal (that is coming now to QC) is the concept of reasonable expectation
To some extent, intent of parties reflect this idea but it is not just that
Kaperonis
The CML interpretative operation also requires that we distinguish statutory conditions from exclusions.
Insurer’s cannot have conditions harsher than statutory conditions. However, exclusions are different. The exclusions are the contractual part, where as the statutory conditions are brought in by the statute.
Often quite difficult to distinguish between conditions and exclusions
From insurer’s point of view, exclusion is better; from insured, condition
Exclusion would have to do with the object of insurance, with the property, the subject matter of the insurance, with the risk itself
If the restriction is an exclusion, than an exclusion really addresses what the insurer is prepared to take in its risk and what it’s not prepared to take in its risk
It is not with respect to some condition enshrined in the statute, it’s what the insurer is prepared to take on or not take on with respect to the risk itself
What is the meaning of accident?
Canadian Indemnity v Walken Machinery& Equipment [1976] 1 S.C.R. 309 - CML
Definition of Accident, criminality and directing mind; Negligence can be an accident.
Facts
-The principle action was instituted as a result of the collapse of one of two pintle cranes supplied by Washington. It was found that Washington and Walken omitted to warn the plaintiffs (Straits), and the act of returning the vessels to them in a state of inadequate repair was a breach of a duty.
-This action is an appeal of the B.C Court of Appeal decision condemning Canadian Indemnity (Appelants) to indemnify the respondent Walken against the losses incurred by it arising out of the actions instituted by Straits Towing and Straits Bridge against it. This is a third party victim claiming indemnity.
Issue
Was Walken’s negligence criminal? No
Was the collapse of the crane an “accident” within the meaning of the policy? Yes
Appeal dismissed
Reasoning (Pigeon)
Criminal Negligence:
-Criminal negligence can deny recovery of insurance based on public order. For example, in Lindal and Beattie v. Home Insurance Co a motorist had been driving in a state of intoxication was denied recovery from his insurer. This ground only avails when the illegality of the transaction is fully established.
-In this case there is no finding supported by evidence that established the commission of a crime. The only finding is one of negligence in a civil case. This supplies no basis for holding that it was criminal negligence.
-Also, consideration would have to be given that Walken is an incorporated company. A corporation is party to an offence only when the act is brought home to its directing mind. Here there is no finding that Walken himself was privy to the negligence of its servants as required to make it criminally responsible for it, assuming to be criminal.
“Accident”
-One must avoid the danger of construing that term as if it were equivalent to “inevitable accident.” That a mishap might have been avoided by the exercise of greater care and diligence does not automatically take it out of the range of accident. Expressed another way, “negligence and “accident” as here used are not mutually exclusive terms. They may co-exist.
-Accident is sometimes used to describe unanticipated or unavoidable occurrences, no dictionary need be cited to show that in every day use, the word is applied to any unlooked for mishap or occurrence. Thus, the proper test of deciding whether something is an accident is whether it was “an unlooked for mishap or occurrence”
-Negligence is by far the most frequent source of exceptional liability which a businessman has to contend with. Therefore, a policy which would not cover liability due to negligence could not properly be called comprehensive.
Ritchie in Dissent:
-Does not agree that the word “accident” as used in a comprehensive business liability insurance policy includes a calculated risk which appears to imply the very antithesis of an unlooked for mishap or occurrence.
Rule
An accident is any unlooked for mishap or occurrence. Class Notes Facts: W was doing repair to machinery. Knew of the dangerous condition of the crane but nonetheless pawned it off to an unsuspecting customer.
Issue: Does this fall within the ambit of an accident?
General:
this case was not a question of criminal negligence
the scope of accident clearly includes negligence because our negligence does not enter the domain of deliberateness or intentionality
scope of accident is fairly wide
even when there is foreseeability, there is still some uncertainty and does not take away the accidental quality
remember: intentional acts never are included. However, even this has been qualified.
so we’re concerned about consequential damages but we’re also concerned with how far is the insured’s action tolerated in terms of still accepting that this action fell under what the insurer is covering
Indemnity rejected to insured because of intentional fault; distinction between intentionality of act vs. injury, intent assessed objectively
Facts: Saindon (defendant/respondent) accuses Sirois (plaintiff) of cutting branches off his cherry tree. Sirois’ kid did the cutting, and Saindon walks over towards them with a lawnmower running and lifts the mower shoulder height to “scare” Sirois. In self-defence Sirois lifted his hands and had some fingers cut off and his wrist injured. Court awards Sirois 40K in damages but defendant’s insurer refuses indemnity. Overturned at CoA, and insurer ordered to pay.
Issue: Is the exclusion of indemnity clause applicable here? Did the insured intend to bring about the damages?
Held: Yes. Yes.
Reasoning (Ritchie J.)
Saindon claims coverage under his Comprehensive Personal Liability Policy, which reads:
COVERAGE A — (1) Comprehensive Personal Liability: To pay on behalf of the Insured all sums which the Insured shall become obligated to pay reason of the liability imposed by law upon the Insured, or the liability of others, assumed by the Insured under any written agreement relating to the premises, for damages, including damages for care and loss of services, because of bodily injury or property damage.
Insurer claims exemptions from having to pay on 2 basis (succeeds at trial and SCC, rejected by CoA):
Public Policy - S. 2 of the Insurance Act: Unless the contract otherwise provides, a violation of any criminal or other law shall not, render unenforceable a claim for indemnity under a contract of insurance except where the violation is committed with intent to bring about loss or damage.
Exclusion clause 6 of K: coverage does not apply "to bodily injury or personal damage caused intentionally by or at the direction of an insured"
Word “cause” in exclusion clause is to be interpreted using common sense interpretation. The defendant's act constituted criminal conduct which caused damage and the fact that the scare intended by the defendant had more serious consequences than he might have anticipated did not alter the fact that it was his threatening gesture which caused the damage. The act of picking up the lawnmower is such that he could not have intended otherwise than to cause the harm he did. Almost like deeming intentionality. There must be a substantial certainty that the injury would result.
Act and injury both must be intended, to an objective standard of reasonable person.
Insurance Act exemption applies - wilful and culpable act which has a result which the actor did not intend — which is both reckless and unlawful —surely does not entitle him to say that it was an accident.
K Exemption clause 6 applies - the personal damage sustained by Sirois was intentionally caused within the meaning of exclusion No. 6 in the policy and also that the insured's actions constituted a violation of the criminal law committed by him with intent to bring about loss or damage, although the precise damage was not anticipated
Insurance coverage should be denied as the defendant's actions constituted a violation of the criminal law committed by him with intent to bring about loss or damage.
Dissent (CJ Laskin)
Issue: simply whether the word "intentionally" in the exclusionary clause covers both intentional and reckless acts.
Exempting provision of an insurance policy are to be construed strictly against the insurer.
Not enough to show a likelihood, must show clear intent to cause these injuries.
K exemptions fails - The exclusion of the insurer's liability is expressed as applying only "to bodily injury or personal damage caused intentionally by or at the direction of an insured". The evidence does not support a finding of fact that the respondent intended to cause injury.
Criticizes the TJ for treating the original raising of the lawn mower as itself enough to establish intention to cause injury, doing so by importing a negligence concept into the assessment of the respondent's conduct.
Cites US cases to say the exemption clause only applies where the insured intended to inflict the actual injury, which is not the case here.
where intent to cause injury is relied upon by an insurer as an exclusion, it cannot succeed merely by showing that a deliberate act was involved which was not an accident, without also showing that there was an intent to cause the injury and not merely that there was a likelihood that injury might result from the act.
Rejects the exclusion clause 6 as grounds for refusing to pay indemnity.
Insurance Act fails - S. 2 - the question is whether a violation of law was committed by the insured "with intent to bring about loss or damage". The insurer's position is it is enough to show an intent to bring about damage of any kind, even if there be no intent to bring about the damage that actually resulted. Burden remains on the insurer, and again it fails.
Insurer fails to bring itself within the exclusion clause nor the exclusion of s. 2 of the Act, and therefore must pay the indemnity.
Ratio: Indemnity is not payable where insurer commits intentional fault. Intention imports in it notions of recklessness.
Comment: almost an equity issue of not wanting to benefit the defendant, but could have the result of leaving the innocent third party victim without chance of recovery.
Laskin’s argument is an effort to be able to compensate the victim.
This requirement of intent for act and injury is equally applicable in sexual assault cases. In sexual assault the harm is deemed to be within the very nature of the act. (See Scalera and Sansalone).
Class Notes
Facts: Branches were cut of Saindon’s cherry tree. Saindon confronts Sirois. Accident happens. Mr. Sirois is severly injured. Sirois sues Saindon. Saindon has 3rd party liability insurance. Tries to recover.
Issue: is this an intentional act the insurer is justified in excluding?
Reasoning: Majority said that: what else could this act have been? The act was so egregious, this act was such that the insured must have intended not only the act but also the injury that resulted. This insurer is thus justified in refusing the indemnity.
General:
exclusion in the policy says no coverage for intentional injuries caused by the insured. The violation of a criminal law also does not negate the policy unless the act is done with the intent to bring about the loss.
So you can see it goes pretty far on the intentional act side.
The code says that the resulting injury has to be part of the intention
Important dissent by J. Laskin: to invoke the exclusion, the insurer has to find not only that the act was committed but that these particular damages were committed intentionally. Laskin would have found the insurance ‘good’.
This is the test that is usually applied
There is an exception to this ‘intention’ in sexual assault cases. The harm is deemed to be an intended result.
so this intention bit. Is this a purely objective standard or is there some subjectivity in it?
where the act falls short of an illegitimate or criminal characterization
gross negligence still generates coverage under liability insurance as long as he was unaware of the inevitability of the damage
CCQ 2480. In addition to the particulars prescribed for insurance policies generally, an indication shall be made in a property insurance policy of any exclusion of coverage not resulting from the ordinary meaning of the words or any limitation of coverage applying to specified objects or classes of objects, specifying the conditions on which the contract may be cancelled by the insured, as well as those on which the insurance may be reinstated or continued after a loss.
Class Notes Facts: Insured intended to commit suicide. As he was waiting to succumb to the effects of the gas, he lit his last cigarette…and caused an explosion.
Issue: Can individuals in the building get the proceeds from his damage insurance?
Comments:
there was an intentional act here. Gas is on and I’m lighting a cigarette.
You have an entry to the subjective component to the intentionality.
Intentional fault is not triggered if you don’t have the intention to commit the damage. Refers to both the act and the consequences.
Axa Assurances inc c. Assurances générales des caisses Desjardins EYB 2006-105389 – CVL
Intentional Fault exclusion does not extend to accidental / unintended damage ; subjective element in QC law.
Facts: F committed suicide by burning down his residence. His neighbours, however, suffered damages to their property and now have brought an action. Axa is subrogated and institutes proceedings against Desjardins. D invokes an exclusion clause in the policy and article 2464 of the CCQ saying that they don’t have to pay in the presence of an intentional fault of the insured. A claims that this interpretation is erroneous and that they must show that the insured was conscious of the damages that would result from his fault.
Issue: Does the intentional fault of the insured absolve D from paying the indemnity?
Held: No.
Reasoning:
CCQ 2464 and the exclusion clause in the contract removes the insurer of all responsibility in the case of an intentional fault of the insured. It is admitted that it is F’s intentional act that caused the damage. However, the case turns on whether F wanted his act to cause injury to his neighbor’s building. If he did, then no indemnity.
In property insurance, intentional fault deprives insurance indemnity. However, in liability insurance, the issue is more complicated.
The intention must be not only on the act, but also on its results.
In addition, the burden of proof rests with the insurer and the exclusion clause must be interpreted restrictively.
In this case, D has not proven that F desired to damage the property of his neighbours or that the resulting damage was foreseeable and inevitable (the state of mind of F at the moment the damages happened remain unknown, as well as his understating of the characteristics of the immovable and the possibility of fire catching very quickly or damages caused by radiation).
Courts conclude that there is insufficient evidence to conclude that Fournier intentionally damaged the neighbours property and accordingly it could only be by accident.
Ratio: Both the act and the consequences must be intended in order for liability insurer to refuse indemnity.
Comment: Door is open to the subjective nature of intent in QC law.
Class Notes Comments:
same as above. Individual attempting to commit suicide and causes damage in the process.
In this case, we don’t know the insured’s state of mind.
The insurer was required to pay here.
So once again, with respect to the intentional act of the insured, we are looking at the intentional act BUT ALSO the intentional act to bring about the damage
And it not a purely objective standard. There are hints of subjectivity here.
Quite clear that the door has been opened to a subjective test.
This is also the case in the CML
the direction the law is heading is similar as in CVL: objective with hint of subjectivity and intention of act and intention of consequence
Axa (suicide by burning house down)
i. Intentional fault exclusion does not extend to accidental/unintended damage
ii. Subjective element within intent to bring about the damage (in cvl)
Some particularities of damage insurance: change in the risk, notification, payment CCQ SECTION III DAMAGE INSURANCE
