Supreme Court upholds insurer’s duty to defend in accidental shooting death

The Supreme Court of Canada has declined to hear the appeal of Optimum Insurance Company in a duty-to-defend case involving the accidental shooting death of a friend at a house party in New Brunswick.
The Supreme Court’s decision represents the end of the line for Optimum, which argued that it did not have a duty to defend Brandon Joseph Donovan because his actions allegedly breached the homeowner policy’s exclusion for criminal acts.
With his parents away for the holidays, Donovan, 23 at the time, held a party at which he discharged a firearm and accidentally killed his friend, Cody Gillespie.
Optimum refused to provide for Donovan’s defence, and Donovan sued the insurer for failing to comply with its duty under the policy.
Optimum conceded that Donovan did not intend to injure or kill Gillespie, but argued that the statement of claim in a civil case against Donovan was tied to “wrongful conduct” (i.e. brandishing firearms in a reckless manner) that constituted a criminal act within the meaning of the policy’s “criminal act” exclusion.
The New Brunswick Court of Appeal dismissed Optimum’s argument, saying neither the insurer nor Donovan made any reference in the pleadings to the Criminal Code, upon which Optimum relied for its argument.
Second, the New Brunswick Court of Appeal ruled, allegations of misconduct in civil trials commonly resemble the language found in a case involving criminal charges. “All of that to say that courts are rightly disinclined to rule out a duty to defend solely on the basis of textual symmetry or similarity between the plaintiff’s claim and a Criminal Code provision.”
In refusing to grant leave to appeal, the Supreme Court has upheld the decision of the New Brunswick Court of Appeal.