June 16, 2009 by Canadian Underwriter
The Ontario Superior Court has created a “half-a-loaf solution” to the question of whether or not a defence is owed under a snow removal contractor’s policy to the owner of the premises that has been named as an additional insured under the contractor’s policy.
In the Number 4, 2009 edition of the Hughes Amys newsletter, Noteworthy, author Michael Teitelbaum says the court’s decision to “split the difference” in the 2009 case, Atlific Hotels and Resorts Ltd. v. Aviva Insurance Company of Canada, has created “more problems in determining how these types of matters should be addressed, which may not be resolved until the Court of Appeal and perhaps the Supreme Court of Canada consider these issues.”
In Atlific, a Deerhurst hotel guest in Ontario slipped and fell on an icy pathway. She sued the Deerhurst companies that own, operate and manage the hotel resort, as well as the snow removal contractor.
The terms of the snow removal contract required Deerhurst to be named as an additional insured under the snow removal contractor’s policy, “but only with respect to liability arising out of the contractor’s obligations.”
But the allegations of the plaintiff fell within three categories, the court found:
• negligence in the removal of snow;
• negligence in hotel operations and management, including inadequate lighting and the lack of non-slip matting on the walkways, as well as the failure of management to cancel the evening conference program so that all guests could have stayed in their rooms, among others; and
• the occupier’s liability.
The court found the true nature of the overall claim was not simply about clearing snow and ice because of the allegations related to hotel management.
In addition, Ontario Superior Court Justice Edward Belobaba found that case law does not obligate an insurer to fully defend where one allegation — the negligence in removal of snow — is covered.
“Accordingly, Aviva did not have to defend all of the allegations made against one of several defendants who were sued as owners, operators, etc. of Deerhurst resort because the pleadings alleged negligence in respect of snow and ice removal but also hotel operations and management,” Teitelbaum writes.
However, Aviva did have to defend Deerhurst in respect of the snow and ice claims, as well as defend the snow removal contractor, which it was already doing.