December 3, 2007 by Canadian Underwriter
Ontario’s Court of Appeal has affirmed that an endorsement contained in a commercial umbrella liability policy provided by Liberty Mutual Insurance Company provided coverage on an occurrence basis rather than on the basis of when the claim was made.
The case centred on the claim of an employee of a Rio Algom subsidiary company based in Ohio. The employee was injured while at work on Dec. 2, 1995.
The employee served a claim against Rio Algom on May 30, 1997. The claim was settled for Cdn$1.35 million, Cdn$1 million of which was covered by the primary coverage. Rio Algom sued Liberty for the remaining Cdn$350,000.
The Liberty umbrella policy period is May 1, 1997 to May 1, 1998.
Rio argued s. I.B. of Liberty’s umbrella policy period provided “claims made coverage,” meaning the policy covered the claim because the claim was made within the umbrella policy’s period.
But the appellate court agreed that Endorsement No. 4 to the Liberty policy specifically referred to any personal injury “arising out of any occurrence” in the policy period, only if there was underlying employers liability insurance, which there was.
Endorsement No. 4 was a “coverage trigger” rather than an “exclusion,” the court found, and therefore superceded s.I.B. of the umbrella policy, which clearly calls for claims made coverage.