Application judge erred by not comparing allegation with homeowner policy's language

Insurance – Extent of Risk (Exclusions) - Miscellaneous

M claimed that F caused her injuries by driving through red light. F made third party claim against DC alleging that he drove negligently, got out of his vehicle, threatened F, and hit F's vehicle. F claimed that his flight from DC led to collision with M. Insurer D, DC's auto insurer, conceded duty to defend allegations of negligent driving. DC was covered for homeowner insurance by insurer P. Application judge determined that insurer P was under no duty to defend DC. Insurer D appealed. Appeal allowed; DC entitled to defence under homeowner policy with insurer P for third party claim. Application judge erred by not comparing allegation against DC with homeowner policy's language, as binding jurisprudence mandated. Application judge erred in concluding that intentional act exclusion in homeowner policy meant that insurer P was under no duty to defend; application judge erred by conflating issue over duty to defend with issue of duty to indemnify, latter of which could only be determined after facts were found at trial. Application judge inappropriately made factual findings that DC's actions after getting out of vehicle would be deemed incident to ownership, use or operation of vehicle, and therefore covered by auto insurer and not homeowner insurer; factual findings were to be made at trial; duty to defend issue was to be based on allegations as pleaded.

Pembridge Insurance Company of Canada v. Chu (2019), 2019 CarswellOnt 18626, 2019 ONCA 904, Janet Simmons J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); reversed (2019), 2019 CarswellOnt 3033, 2019 ONSC 1359, C.F. de Sa J. (Ont. S.C.J.).

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