Homeowner's insurance - Exclusions - All Terrain Vehicle - Ownership, use or operation of motor vehicle - Duty to defend - Waiver

March 2008

Economical Insurance Group v. Fleming

[2008] O.J. No. 20
Ontario Superior Court of Justice
K.A. Hoilett J.

January 7, 2008

The Insurer brought an application for a declaration that it had no duty to defend or indemnify the Respondents.  The Respondents were insured pursuant to a home owner's policy of insurance.  That policy excluded claims arising from the ownership, use, or operation of any motorized vehicle.  A 12-year old girl, the sibling of the Insureds, was injured while operating an ATV owned by one of the Respondents.  The Court found that the Insurer had waived any right to deny a duty to defend and could not now repudiate that position.  The waiver occurred in a letter which was sent to the Respondents one month after the Statement of Claim was issued.  The letter advised that the Insurer would defend the action.  The Court found that a subsequent letter delivered approximately five months later in which the Insurer advised that they would not defend the action did not have the effect of removing the waiver.

This case was digested by Sarah Swan of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact her directly at 604.895.2846 or sswan@harpergrey.com