Case Comment: Hardie v Kamloops Towne Lodge Ltd 2014 BCSC 955

BC Court upholds denial of coverage under CGL policy for the cost to dispose of the insured s defective product In this Issue Case Comment: Tien Lung Takewon-Do Club v Lloyd s Underwriters 2014 ABQB 146 Case Comment: Hardie v Kamloops Towne Lodge Ltd 2014 BCSC 955 BC Court upholds denial of coverage under CGL policy for the cost to dispose of the insured s defective product By Jill Shore Traditionally, the Commercial General Liability ( CGL ) policy was understood to provide coverage for liability imposed upon or assumed by the insured by law, either in tort or pursuant to contract, to pay compensatory damages flowing from property damage or personal injury caused to a third party. It was not understood to provide coverage in the event of a defect in the insured s own product, which had not caused property damage to other property. The interpretation given to the standard CGL policy was radically altered in 2010 by the Supreme Court of Canada s decision in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada ( Progressive Homes ), which suggested that defective property could constitute property damage as defined in the CGL. Although the issue of the supply of a defective product was not decided in Progressive Homes, the court s statements in obiter have prompted insureds to seek coverage for defects in their own products. However, the BC Supreme Court issued its decision in Westaqua Commodity Group Ltd. v. Sovereign General Insurance Company, 2014 BCSC 263. The court considered the obligation of a CGL policy to respond to a claim by an insured for indemnity for the cost of disposing of its own defective product, which did not sustain any physical injury during the period of the policy, and had not caused

any property damage to third party property. In this case, the plaintiff sold a product, Corn Gluten Meal ( CGM ) to its customer; the plaintiff did not manufacture the CGM it sold to its customer, but purchased the CGM from a supplier in China and resold it to its customer. The customer ultimately learned that the CGM sold to it by the plaintiff was contaminated, was unsuitable for any use, and needed to be destroyed. There was no evidence to explain how or when the CGM became contaminated, other than it became contaminated prior to the plaintiff purchasing it from its supplier and reselling it to its customer. The CGL policy in question had a two-part definition for property damage, which included under the second part,... loss of use of tangible property that is not physically injured. With respect to whether there had been property damage, the court determined that there had been no physical injury to the CGM, but there had been a loss of use of the CGM due to its contamination. This loss of use constituted property damage as defined by the policy. However, the court found that there had been no occurrence as defined by the policy. Occurrence was defined by the CGL policy as,...an accident, including continuous or repeated exposure to substantially the same general harmful conditions. The court held that there had been no accident, because there was no evidence of any event having occurred that gave rise to the contamination. This case is the first after Progressive Homes to squarely consider, in the context of a claim for indemnity under a CGL policy, the costs to dispose of the insured s own defective product. The court s analysis suggests that where an accident or event has caused an insured s product to become defective, the defective product may constitute property damage. However, the court confirmed that the impaired property and product recall, or sistership exclusions, would apply to exclude coverage for the cost of disposal of the insured s own

defective product. The court s decision regarding whether or not there has been an occurrence under the policy was fact specific, but illustrates the importance of the burden of proof on an insured when bringing a claim for indemnity. This decision should help to bring clarity to an area of law left confusing following Progressive Homes, in relation to the scope of coverage under a CGL policy for an insured s own defective product. It confirms that the CGL policy does not cover the insured s cost to dispose of its defective product, even after the defective product has been sold by the insured to its customer.

Case Comment: Tien Lung Takewon-Do Club v Lloyd s Underwriters 2014 ABQB 146 By Keoni Norgren with contributions by Aneka Jiwaji Insurance contracts are unique, but at their core, an insurance contract creates a contractual obligation like any other. Accordingly, coverage decisions will rely on basic principles of contractual interpretation when interpreting an insurance contract. In Tien Lung Takewon-Do Club v Lloyd s Underwriters 2014 ABQB 146, the insured, a Taekwon-Do Club, was sued due to an injury that occurred during a sparring match. The insurer denied they had a duty to defend the insured due to an exclusion clause. The exclusion clause at issue read: This policy does not apply to: Any Bodily Injury caused or contributed by any Insured to any participant and/or any Bodily Injury caused or contributed by an participant in a match or practice in regards to Category 4 Sports unless specified in the Declarations. Martial Arts was defined as a Category 4 Sport. The insurer denied coverage on the basis that the claim arose from participating in a match in a Category 4 Sport and therefore the exclusion clause operated to bar coverage. While the insurer s interpretation may appear iron clad, the exclusion clause read unless specified in the declarations and the declaration pages clearly indicated coverage for the sport of Martial Arts. The insured argued that the exclusion clause specifically created an exception for coverage indicated on the declaration pages, which in this case included coverage for the sport of Martial Arts. Further, the insured argued that the insurer s interpretation of the clause would exclude the majority of the Takewon-Do club s activities and would leave very little that would actually be covered. However, the insurer argued that martial arts was a broad activity and while the policy provided coverage for a variety of other activities connected to the sport of martial arts, it excluded coverage for injuries sustained from the narrow activity of sparring matches.

The insured argued that the activity of martial arts includes the activity of sparring, and should be covered in the definition of Martial Arts. The court first examined the terms of the contract and concluded that the structure of the policy was awkward and ambiguous. On one hand, the exclusion clause excluded coverage for Martial Arts and on the other, specified coverage for Martial Arts. The contract was silent on the definition of Martial Arts and the Court proceeded to define the term using external contextual aids such as the definition of martial arts from the World Taekwon-Do federation. The Court held that martial arts fundamentally included the activity of sparring matches and that accepting the interpretation of the insurer would illogically provide insurance coverage for the sport of Martial Arts and then restrict the majority component of that sport. Taking the court s definition of Martial Arts, the court held that while the exclusion clause did exclude coverage for the sport of Martial Arts it crafted an exception through the wording unless specified in the declarations and as specified in the declarations Martial Arts was the activity for which coverage was provided. Ultimately, the court concluded that the insurer contemplated and agreed to provide insurance coverage for Martial Arts, which included injuries arising from the sparring match. The insurer therefore had a duty to defend the insured in the action. The Court s use of basic contractual interpretation demonstrates the importance for insurers to recognize that insurance contracts are fundamentally like any other contract. It is therefore essential that exclusions from fulfilling contractual obligations be crafted unambiguously in order to give full effect to the intention of the parties. In circumstances of ambiguities arising from the terms of the insurance contract the courts will be unsympathetic to the insurer. Most insurance contracts are standard form contracts drafted by the insurer and the courts will reason that the insurer had

the opportunity to adequately define the terms of the coverage. Insurance Journal

Case Comment: Hardie v Kamloops Towne Lodge Ltd 2014 BCSC 955 By Keoni Norgren with contributions by Aneka Jiwaji Liability in the context of commercial tenants often results in finger pointing. To avoid confusion landlords may include indemnity clauses in their lease agreements. These clauses create a contractual obligation for a tenant to indemnify the landlord if a loss occurs through some act or omission associated with a tenant s business. Additionally, landlords may request to be included as coinsureds on a tenant s CGL policy. In the recent case of Hardie v Kamloops Towne Lodge Ltd 2014 BCSC 955, the landlord, Kamloops Towne Lodge Ltd. ( Kamloops ), was sued by the Plaintiff when she slipped and fell in an area where Kamloops tenant, Forster Restaurants Kamloops Ltd. ( Forster ), was providing dinner services. Counsel for Kamloops, Seth Wheeldon of Dolden Wallace Folick LLP, settled the claim between the Plaintiff and Kamloops and then brought an application for indemnity against Forster. The lease agreement between Kamloops and Forster specified that Forster would provide food and beverage services in the hotel and manage the facilities. The lease contained an indemnification clause which was triggered if Kamloops became a party to any claim or suit, by reason of any act or omission of Forster or, by any reason of any act occurring on the facilities except for Kamloops willful or negligent act. Forster also had liability insurance and included Kamloops as a coinsured on all insurance policies but only with respect to liability arising out of the operations of the named insured. Forster refused to indemnify Kamloops arguing that the indemnity clause was not triggered because Kamloops was negligent and Forster was not an occupier. Additionally, Forster alleged that their insurer was not legally obligated to defend Kamloops under Forster s CGL policy because the Plaintiff s fall did not arise out of Forster s operations of providing food and beverage services. Kamloops argued that Forster was the occupier of the premises and had exclusive control over the area where

the loss occurred as per the lease agreement and that Forster failed to inspect and maintain the premises, to warn the Plaintiff of defects/dangers to users of the facilities and used the facilities in an unsafe manner that exposed the Plaintiff to risk. Kamloops also argued that while their application was not against Forster s insurer, Forster had insured against the specific risk of injuries to guests arising out of its operations and a duty to defend would have been triggered under Forster s policy. The Court considered whether Kamloops was a party to a suit by reason of an allegation of an act or omission by Forster. The Court held that the allegations implicating Kamloops were a result of Forster s breach of duty of care and the indemnity clause was triggered. Forster had breached their duty through a failure to prevent the Plaintiff s fall by failing to warn the Plaintiff of hazards in the area and negligence in managing the flow or locations of patrons using the facilities. Regarding the duty to defend Kamloops as a coinsured under Forster s CGL policy, the court noted that there was no claim against the insurance company but in the event that Kamloops had made a claim they would have been entitled to a defence as a co-insured as the loss did occur through Forster s operations. The court interpreted operations as a broad term that includes creation of a situation or circumstance that is connected in some way to the alleged liability. In this case as Forster was clearly playing an active role in catering the food and beverage services on the evening of the Plaintiffs fall they were directly connected to the loss as the Plaintiff was on the facilities for purposes connected to Forster s operations of providing food, beverage services and entertainment, and she lost her footing in the very area where patrons were invited by Forster s to collect food. Ultimately, Counsel for Kamloops was successful as the court agreed with the interpretation of the indemnity clause proposed by Kamloops counsel and granted the application for indemnity for settlement, costs and expenses including special costs against Forster.

Vancouver, BC Editor Keoni Norgren, Tel: 604-891-5253 E-mail: knorgren@dolden.com Please contact the editor if you would like others in your organization to receive this publication. Contributing Authors Jill Shore, Tel: 604-891-0390 E-mail: jshore@dolden.com Keoni Norgren, Tel: 604-891-5253 E-mail: knorgren@dolden.com Aneka Jiwaji, Tel: 604-891-0394 E-mail: ajiwaji@dolden.com Tenth Floor - 888 Dunsmuir Street Vancouver, B.C. Canada / V6C 3K4 Telephone (604) 689-3222 Fax: (604) 689-3777 E-mail: info@dolden.com Toronto, ON 200-366 Bay Street Toronto, Ont. Canada / M5H 4B2 Telephone (416) 360-8331 Fax: (416) 360-0146 E-mail: info@dolden.com Kelowna, BC 308-3330 Richter Street Kelowna, B.C. Canada / V1W 4V5 Telephone (250) 980-5580 Fax (250) 980.5589 E-mail: info@dolden.com Vancouver Toronto Kelowna