



COURT OF APPEAL FOR ONTARIO

CITATION: Lawyers' Professional Indemnity Company v.

Lloyd's Underwriters, 2017 ONCA 858

DATE: 20171107

DOCKET: C62885

Sharpe, Rouleau and Fairburn JJ.A.

BETWEEN

The Lawyers Professional Indemnity Company

Applicant (Appellant/
Respondent by way of cross-appeal)

and

Lloyds Underwriters

Respondent (Respondent/
Appellant by way of cross-appeal)

Stephen Cavanagh, for the appellant/respondent by way of
    cross-appeal

Heather Gray, for the respondent/appellant by way of cross-appeal

Heard and released orally: November 2, 2017

On appeal from the judgment of Justice Martin S. James of
    the Superior Court of Justice, dated October 5, 2016, with reasons reported at
    2016 ONSC 6196, [2017] I.L.R. I-5919.

REASONS FOR DECISION

[1]

The appellant argues that the application judge erred in finding that
    the insurance policy issued by the respondent was excess to the policy issued
    by the appellant. In its submission, the application judge erroneously arrived
    at this conclusion by applying the
Minnesota
approach to resolve whether a policy is excess to another policy. Pursuant to
    that approach, the court asks which of the insurers intended more clearly to
    insure the particular risk. The Minnesota approach has been rejected by the
    Supreme Court of Canada in
Family Insurance Corp. v. Lombard Canada Ltd.
, 2002 SCC 48,
[2002] 2 S.C.R. 695.

[2]

In our view, the application judge did not apply the Minnesota approach
    to determine whether the respondents policy was excess to the appellants. The
    application judge understood that he was called upon to interpret the terms of
    the two relevant insurance policies. It is based on the terms of the policies
    that he found that the respondents was specifically made excess to the
    appellants.

[3]

Further, the appellants policy acknowledges that other policies,
    specifically arranged to apply as excess insurance over the appellants policy,
    were to be treated as being excess policies. We see no error in the application
    judges analysis.

[4]

The fresh evidence tendered in this case makes it clear that the underlying
    claim against the insured has since been settled within the limits of the
    appellants policy. As a result, we need not address the issues raised in the
    cross-appeal and express no view as to the application judges disposition of
    those issues.

[5]

Consequently, both the appeal and the cross-appeal are dismissed. Costs
    to the respondent fixed in the amount of $8,000, inclusive of disbursements and
    applicable taxes.

Robert
    J. Sharpe J.A.

Paul Rouleau J.A.

Fairburn J.A.


