Canadian Underwriter

Ontario court to order insurer to defend personal injury lawsuit arising from doughnut shop fight

June 6, 2013   by Canadian Underwriter

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An Ontario Court plans to order Economical Insurance to defend a lawsuit against a policyholder for personal injuries allegedly resulting from a fight over a spot in line at a Tim Horton’s east of Toronto.


The Economical policyholder was convicted of assaulting the man who is now suing him, and his insurance policy excludes coverage for criminal acts.

However, a judge with the Ontario Superior Court of Justice found May 31 that the lawsuit could be based on negligent actions that are not part of a criminal offence. The plaintiff’s claims have not been proven and last Friday’s ruling was only on Economical’s duty to defend.

Court records indicate Vincenzo Sgambelluri and Fausto Simone were involved in an altercation in February 2011 at a Tim Horton’s in Pickering, Ont. after Sgambelluri allegedly butted into the drive-through line.

Simone was convicted of common assault and received a conditional discharge, but court records indicate the judge in the criminal trial was “not convinced beyond a reasonable doubt” that Simone committed assault causing bodily harm.

“The trial judge found that there had been a chest bumping between the two men,” wrote Mr. Justice Bruce Glass in background with his May 31 decision on Economical’s duty to defend.

Simone is now being sued by Sgambelluri for damages for alleged personal injuries. Sgambelluri claims he suffered a broken leg, followed by depression and anxiety.

Simone applied to the court for a declaration requiring Economical Insurance to defend him in the lawsuit. Economical hasd argued that Simone’s liability policy excluded coverage for personal injuries that are caused by any intentional or criminals acts, or failure to act.

Judge Glass ruled May 31 in favour of Simone, finding that he “is entitled to declaratory relief” for Economical Insurance to defend him “with the exception of a claim for punitive or exemplary relief,” because punitive and exemplary damages are excluded from the insurance policy.

“There will be an order for a declaration that the Respondent defends the action,” Judge Glass wrote.

It is possible that Sgambelluri could make a negligence claim, Judge Glass suggested in his ruling, meaning the exclusions of Simone’s policy with Economical Insurance would not apply.

“If there is a realistic possibility that a claim in negligence might be advanced separate from a claim for damages resulting from an assault, the insured is entitled to benefit of a defence being carried by the insurer,” Judge Glass wrote, noting that when determining whether a carrier has a duty to defend, a court must look “beyond labels used” by a plaintiff and “determine the substance and true nature of the claims.”

Court records indicate the judge in the criminal trial was “not satisfied” that Sgambelluri’s alleged injuries “were proven to be related to the physical contact” with Simone.

“The Sgambelluri claims were framed in willful and intentional assault and battery, or in the alternative, that Mr. Simone’s actions were negligent with a reckless disregard for Mr. Sgambelluri,” Judge Glass wrote.

“One might conclude that Mr. Sgambelluri fell simply by losing his balance as a result of his own actions. I do not have evidence to make any decision about what happened. What I do have is a statement of claim by a third party alleging a claim in damages for negligence that could be non-criminal activity.”

Therefore, he suggested, if the court hearing Sgambelluri’s lawsuit were to determine that Sgambelluri’s claim against Simone is based on negligent actions by Simone that are not part of an assault, then the claim would not necessarily fall under the exclusions of Economical Insurance’s policy.