where insured took calculated risk. was reasonably foreseeable, not unanticipated Rejected by SCC TEST in context Martin v. Onus on insured to establish “accident” Dr. addicted to pain meds of whether American on b of p. Dies of drug overdose there is International Test for accidental loss depends on Insurer argued b/c Dr., and coverage SCC 2003 insured’s state of mind: intentionally injected that amount, must have anticipated death and Whether the insured subjectively therefore not accidental intended the consequence of their Court rejects this argument actions. If person did not intend, Issue is not whether activity is then it is an accident. dangerous or even if death likely, In other words, did insured but whether insured intended or expect the consequences? expected to die If court cannot determine intent using a solely subjective perspective, use subjective/objective test: what would a reasonable person in the insured’s circumstances have expected? When Progressive Duty to defend is triggered if facts Liability insurance for home “Accident” Homes v. alleged in pleadings, if true, would building company Triggering Lombard SCC require insurer to indemnify insured. Not Claim brought against insured for Event 2010 bound by labels chosen by plaintiff, true faulty workmanship substance of their pleadings is examined. Pleadings alleged negligence Negligence falls under definition of In this case, duty to defend if insured accident caused property damage by “accident”. Therefore, if facts in pleadings true, insurer would be required to Accident = Q is whether loss was indemnify and duty to defend is intended or expected (fact dependent) triggered. Can include negligence Reckless or intentional conduct excluded Not limited to “sudden” losses, can be a loss that occurs gradually as long as unexpected or unintended Can include gradual deterioration from faulty workmanship, if faulty workmanship accidental. Accident in Stats v. Mutual There is no difference for the meaning of Definition of accident the same for first party of Omaha SCC accident in third party claims vs. first indemnity and accident policies b/c policy 1978 party losses both have the same fundamental purpose—provide “cushioning Negligent or grossly negligent conduct against results of a risk” can constitute an “accident” while A person who realizes the danger reckless conduct does not. of their actions and deliberately assumes the risk, this is recklessness Negligence is where person judged on reasonableness standard to
where insured took calculated risk. was reasonably foreseeable, not unanticipated Rejected by SCC TEST in context of whether there is coverage Martin v. American International SCC 2003 Onus on insured to establish “accident” on b of p. Test for accidental loss depends on insured’s state of mind: Whether the insured subjectively intended the consequence of their actions. If person did not intend, then it is an accident. In other words, did insured expect the consequences? If court cannot determine intent using a solely subjective perspective, use subjective/objective test: what would a reasonable person in the insured’s circumstances have expected? Dr. addicted to pain meds Dies of drug overdose Insurer argued b/c Dr., and intentionally injected that amount, must have anticipated death and therefore not accidental Court rejects this argument Issue is not whether activity is dangerous or even if death likely, but whether insured intended or expected to die When “Accident” Triggering Event Progressive Homes v. Lombard SCC 2010 Duty to defend is triggered if facts alleged in pleadings, if true, would require insurer to indemnify insured. Not bound by labels chosen by plaintiff, true substance of their pleadings is examined. In this case, duty to defend if insured caused property damage by “accident”. Accident = Q is whether loss was intended or expected (fact dependent) Can include negligence Reckless or intentional conduct excluded Not limited to “sudden” losses, can be a loss that occurs gradually as long as unexpected or unintended Can include gradual deterioration from faulty workmanship, if faulty workmanship accidental. Liability insurance for home building company Claim brought against insured for faulty workmanship Pleadings alleged negligence Negligence falls under definition of accident Therefore, if facts in pleadings true, insurer would be required to indemnify and duty to defend is triggered. Accident in first party policy Stats v. Mutual of Omaha SCC 1978 There is no difference for the meaning of accident in third party claims vs. first party losses Negligent or grossly negligent conduct can constitute an “accident” while reckless conduct does not. Definition of accident the same for indemnity and accident policies b/c both have the same fundamental purpose—provide “cushioning against results of a risk” A person who realizes the danger of their actions and deliberately assumes the risk, this is recklessness Negligence is where person judged on reasonableness standard to
191-Thomson-_Law_344-_Final_Long.docx