Judge's comment that either waiver or estoppel applied did not reflect failure to decide

Insurance - Actions on Policies - Commencement of Proceedings

Insured was involved in dirt bike accident. Insured was sued in negligence. Without securing non-waiver agreement or issuing reservation letter, insurer appointed lawyer to defend claim against insured, pleadings were exchanged, and other steps were taken. Plaintiff's counsel asked insured's lawyer whether there was any issue about coverage. This provoked insurer to inquire further into coverage issue. Insurer brought unsuccessful application seeking declarations that insured did not have coverage, nor was insurer obliged to defend him. Application judge held that insurer had either waived its right to deny coverage and refuse to defend, or was estopped from doing so. Insurer appealed. Appeal dismissed. Application judge's comment that either waiver or estoppel would apply did not reflect failure to decide whether either doctrine applied. Insurer had not established that application judge made palpable and overriding error in finding detrimental reliance. Application judge's reasons for decision were not inadequate. Application judge's finding that insurer was estopped from relying on certain exemptions undercut insurer's ability to invoke these exemptions, whether to dispute its duty to defend or to dispute indemnification.

The Commonwell Mutual Insurance Group v. Campbell (2019), 2019 CarswellOnt 13577, 2019 ONCA 668, David M. Paciocco J.A., Harvison Young J.A., and B. Zarnett J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 16459, 2018 ONSC 5899, Calum MacLeod J. (Ont. S.C.J.).

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