Quinn v Canada Life Assurance Co [2006] BCCA

Quinn v Canada Life Assurance Co [2006] BCCA

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  Whether T’s statement is incontestable
  
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    Policy issued 1 June 2010, applied for benefits 4 Feb 2011, FLI wrote to T that policy rescinded 11 May 2011
    
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    Statements have been made within 2 years from policy date, so there are not incontestable
    
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    Statement that may void the policy may therefore be either a misrepresentation, or a fraudulent misrepresentation
    

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  Whether T made a misrepresentation?
  
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    According to Quinn, answer to question is presumably material, otherwise the question wouldn’t be asked
    
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    T did not disclose full and accurate info about her situation as per her duty
    
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    Insurer has stated that had they known of the unrepresented facts, they would not have insured T
    
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      Is this what a prudent insurer would do in the circumstances?
      

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  Whether any facts withheld by insured ought to have been known by insurer due to latter’s deemed familiarity with business of which they are underwriting?
  

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  Whether the insurer could be faulted for accepting an application that was self-evidently false, that is, the information given was sufficiently indicative of something more to be tantamount to notice of the unrevealed
  

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  Whether there is an ambiguity in the contract?
  
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    No, contract is quite clear
    
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    (d) asks specifically about moles, (e) asks about any consultation with another physician or therapist
    

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  Whether T made a material misrepresentation in the application, statement must be material to risk that is being underwritten
  
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    Test is whether it would’ve influenced reasonable insurer to decline risk or demand a higher premium, objective test. Issue is whether fact was within T’s knowledge and not whether she knew fact was material to the insurance company. Burden on insurer to prove that fact is material
    
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      Quinn notable in that where insurance company asks question in application, the answer is material
      
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    Kate would find that lack of disclosure w.r.t. moles were the material misrepresentation that would’ve voided the contract
    

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  Whether the questions on the application were ambiguous
  
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    In ON case, where insurance application asked if insured had suffered from any respiratory disease, court held that it was acceptable insured didn’t know pneumonia was a respiratory disease
    

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  Insurance contract: the same thing as an insurance policy. The form is different depending on the type of insurance you have
  
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    Declaration pages (i.e. table of contents): must have this to interpret rest of the policy
    
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    Policy itself with the terms, exclusions
    
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    Endorsements: add-ons in different policies, can impose other restrictions on the loss
    
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  First party insurance: the insured
  
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    Who: A first party claim is one where the loss or damage has been suffered by the insured. The insurance company must pay indemnity directly to the insured
    
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    What: Insurance company pays indemnity directly to the insured for damages to property as a result of the insured peril, as well as income, expenses
    
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    Act: Part 2, General
    
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    Examples: homeowners, property – building/business interruption/ professional fees/equipment/stock/contents
    
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    Term: 1^st party
    
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    Claims: n/a
    
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  Third party insurance: a “stranger to the policy”
  
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    Who: A third party claim is one where damage or harm was caused to someone other than the insured, and allegedly as a result of the insured. Insurance protects insured from exposure to liability
    
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      If insured is a company, then harm to third party allegedly caused by company’s operations or negligent acts
      
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    What: Insurance company grants: a) indemnity – insurance company pays money to the claimant, rather than the insured, b) defence – insurance company grants defence to insured for liability to third parties
    
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    Act: Part 2 – General
    
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    Examples: director & officer/product liability, professional liability, tenant liability
    
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    Term: 3^rd party
    
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    Claims: “occurrence based” or “claims made”
    
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      Occurrence based: if the negligent act giving rise to damages occurred during the policy period, the insurer is required to indemnify the insured for any damages arising from it regardless of when the actual claim is made – wrongful act, offense injury or damage has potential coverage as long as it occurs during policy period, doesn’t matter when a third party asserts a claim against the insured for that occurrence
      
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      Claims made: if a claim is made by a third party during the policy period, insurer is required to indemnify regardless of when the negligent act giving rise to the claim occurred. The claim must have been recorded by insurer within time period for recording claims. Insured has a duty to report potential claims. Claims made policy must, by definition, be a third party policy.
      

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  E.g. professional liability policy
  
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  Must have continuous coverage, don’t work well if you’re not aware of potential claims against you
  
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  E.g. let’s say you have developer who puts up high rises, discover issues in 2014, but source of loss was in 1999. In claims made policy, must have had claims made insurance policy from 1999 until present