The recent decision of Van Huizen v. Trisura Guarantee Insurance Company, reinforces that Courts have little interest in protracted coverage battles between parties.
The facts of the case are important but straight forward. There were three main entities. Mr. Barkley, Hastings Appraisal Services (“Hastings”), and Mr. Van Huizen. Mr. Barkley was a property appraiser. He was employed by Hastings. Mr. Van Huizen operated Hastings. Both Mr. Barkley and Mr. Van Huizen had their own professional liability insurance certificates.
In 2008, Mr. Barkley was hired to do an appraisal. It was alleged that he was negligent in his appraisal, resulting in an eventual loss for the property’s insurer when the mortgagor defaulted. The insurer commenced a claim against Mr. Barkley and Hastings for negligent appraisal. A second claim was commenced against Mr. Van Huizen alleging that Mr. Barkley was either his employee or agent and was therefore vicariously liable.
Mr. Van Huizen reported the claim to Trisura, which subsequently denied coverage claiming that the “wrongful act” of Mr. Barkley did not trigger coverage under the policy insuring Mr. Van Huizen.
Trisura alleged that Mr. Van Huizen had coverage only for a negligent act or omission committed by him personally. Their position was that because Mr. Barkley who prepared the appraisal, he could have coverage under the certificate of insurance issued to him but not Mr. Van Huizen. Although the policy included coverage for the vicarious liability of an employer, it required that the negligent act or omission be committed by the member to whom the certificate of insurance was issued. Alternatively, Trisura argued that if an employer was entitled to coverage for the vicarious liability that arose out of the professional services rendered by a member other than the one named in the certificate, Mr. Barkley was not an employee of Mr. Van Huizen or Hastings as both had denied same in their respective statements of defence that he was.
Mr. Van Huizen viewed the case in simpler terms. In the main action and the third party claim, he was alleged to have been Mr. Barkley’s employer and therefore vicariously liable for his negligent acts or omissions. He was insured both for legal claims arising from his personal actions and from his status as an employer. The denial that he was Mr. Barkley’s employer in his statement of defence or that he was vicariously liable did not have an impact on the duty to defend because it was the allegations in the statement of claim and third party claim that matter.
The court cited Coast Capital Equipment Finance Ltd v. Old Republic, 2018 ONCA 540, for the following principles of law on the interpretation of insurance contracts:
The court must search for an interpretation from the whole of the contract which promotes the true intent of the parties at the time of entry into the contract.
Where words are capable of two or more meanings, the meaning that is more reasonable in promoting the intention of the parties will be selected.
Ambiguities will be construed against the insurer.
An interpretation which will result in either a windfall to the insurer or an unanticipated recovery to the insured is to be avoided.
Applying these principles and viewing the insurance contract as a whole, the court found Mr. Van Huizen had coverage for a legal claim arising from his own actions and also when it flows from his legal status as an employer of the alleged wrongdoer.
The Court found that under the policy, an insured does not have to be an appraiser; but he or she has to be an employer of someone who is and, if they are, the policy granted them coverage if they were alleged to be vicariously liable for the negligent acts or omissions of that member. As a result, Trisura had a duty to defend Mr. Van Huizen.
In parting, the court left the parties with this comment:
At its core, the liability issue is simple: did Mr. Barkley fall below the standard of care in preparation of the appraisal? Both he and Mr. Van Huizen carried insurance coverage for just this type of claim and yet, 10 years after that appraisal was done, litigation over coverage persists. I make this comment not in criticism of counsel but to affirm why, as the Court of Appeal has opined, these types of disputes need to be resolved expeditiously to avoid unnecessary costs and delay.
It is worth noting that in a perfect world, coverage litigation should be short and to the point. In many cases the issue should be determined solely on the pleadings and the contract of insurance. Courts will look for the reasonable interpretation of the clause that satisfies the contract as a whole. While creative and technical arguments have their place and should always be advanced, Justice Hurley would suggest that the ultimate question will be whether coverage makes sense in the circumstances.
An application was brought under rule 14.05(3)(d) of the Rules of Civil Procedure to determine rights that depend on contract interpretation. The applicant was National Gallery of Canada (“National Gallery”) and the respondents Lafleur de la Capitale (“Lafleur”) and Intact Insurance Company (“Intact”).
The application relates to two underlying actions arising out of a fatal trip and fall accident that occurred on August 27, 2013 on the National Gallery’s premises. Conrad Lafreniere, an employee of Lafleur, was performing routine maintenance work, cleaning leaves and debris, near the entrance ramp to the National Gallery’s underground parking garage. As a vehicle approached to enter the garage, Mr. Lafreniere moved over to the edge of the entrance ramp, fell over a concrete ledge, and suffered fatal injuries.
The first underlying action, against the National Gallery, was commenced by Mr. Lafreniere’s widow, Ms. Arsenault. The Workplace Safety and Insurance Board (“WSIB”) had a subrogated claim in relation to the claim commenced by Ms. Arsenault and payments made, by the WSIB, to her. The second underlying action, against the National Gallery, was commenced by Mr. Lafreniere’s mother and siblings pursuant to the Family Law Act.
The National Gallery and Lafleur entered into a Service Contract under which LaFleur was required to supply all labour and equipment to complete the interior and exterior maintenance throughout the premises. Lafleur was also responsible for properly training and supervising its employees and ensuring that all employees wore safety equipment and were kept safe while carrying out their work.
Under the Service Contract, Lafleur also agreed to indemnify and save harmless the National Gallery from all claims, demands, losses, costs, damages, actions, suits, or proceedings arising out of or in connection with its work under the contract.
Lafleur also agreed to obtain a CGL insurance policy under which National Gallery would be added as an additional named insured. The policy was issued to Lafleur by Intact.
In both underlying actions, the plaintiffs claimed that Mr. Lafreniere’s fall, and subsequent death, was caused by the negligence or breach of duty of the defendants, National Gallery and the Attorney General of Canada. All of the particulars of negligence, set out in paragraph 8, in the Statements of Claim related to design issues of the building and the property, including the failure to install a fence, railing or protective barrier in the area where Mr. Lafreniere fell, for example.
The National Gallery commenced a third party claim, in both underlying actions, against Lafleur for its failure to properly train Mr. Lafreniere, and also claimed contribution and indemnity from Lafleur.
Intact issued a Commercial General Liability policy to Lafleur. The National Gallery was named as an additional named insured under the policy by way of endorsement. The policy was with respect to the legal liability arising out of Lafleur’s operations under the Service Contract.
The court went on to examine the wording of the Services Contract between the National Gallery and Lafleur, in particular the paragraph dealing with “Indemnification by Contractor”. This section stated that Lafleur shall indemnify and save the National Gallery harmless from all claims . . . . “based upon, arising out of, related to, occasioned by or attributable to the activities of the Contractor, the Contractor’s servants, agents . . . in performing the Work . . . ”
The issue for the court was whether Lafleur and Intact owed a duty to defend the claims against the National Gallery in the underlying two actions.
In ultimately deciding in the negative, the court reviewed the leading case law, in this regard:
an insurer is required to defend a claim on behalf of an insured when the facts alleged in the pleadings, if proven true, would require the insurer to indemnify the insured for the claim: Progressive Homes Ltd v. Lombard General Insurance, 2010 SCC 33 (CanLII)
the duty of defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may be argued to fall under the policy: Nichols v. American Home Assuance Co., 1990 SCC (CanLII)
where there are multiple claims, or where only some of them are potentially covered, a court must assess the substance or the “true nature” of each claim contained within the pleadings to see if it falls within the scope of coverage: Papapetrou v 1054422 Ontario Ltd.2012 ONCA 506 (CanLII)
Following its review of these cases, the court agreed that the question of whether the duty to defend extends to the whole claim depends on the specific pleadings at issue and the resulting determination of the “true nature” of the claims.
In terms of the facts, in this application, the court concluded that in the underlying action brought in the name of Ms Arsenault, for WSIB’s subrogated interest, there was no duty on Intact to defend the National Gallery, for the following reasons:
The nature of the claim was really one of a subrogated workplace claim
The CGL coverage contained an exclusion for “Worker’s Compensation and Any Obligation of the Named Insured under a Workers’ Compensation plan”
The CGL coverage also contained an exclusion for bodily injury to an employee of the Insured arising out of and in the course of employment; Mr. Lafreniere was not an employee of the National Gallery nor in the course of employment with the National Gallery at the time of the accident
The Services Contract required that the National Gallery would be added as an additional insured – it was not listed as a named insured
The Certificate of Insurance required that the National Gallery was an additional Insured but only insofar as Legal Liability arising vicariously out of the operations of the Named Insured
With respect to the underlying action brought by the FLA claimants, the claim alleged that Mr. Lafreniere’s death was caused by the negligence of the National Gallery as occupier. The court found that the allegations in the Statement of Claim related to design issues of the building and the property and that the indemnity provisions in the policy must be read in conjunction with the allegations in the Statement of Claim.
The wording of the indemnity provision made it clear, to the court, that indemnity was “based upon, arising out of, related to, occasioned by or attributable to the activities of the Contractor.” Lafleur was the Contractor and was not named as a party in the Statement of Claim. There were no allegations in the Statement of Claim that alleged negligence or tortious activities of Lafleur so no indemnification could be triggered. The allegations in the Statement of Claim related to design and control by the National Gallery as occupier and, therefore, could not be related to or attributable to the activities of Lafleur.
The court went on to state that, on its face, the CGL policy would cover bodily injury and would be for the type of loss that was sustained. Even though there were no exclusions that applied, the major challenge, for National Gallery, was that the allegations in the Statement of Claim fell outside of the indemnity agreement.
The court concluded that the allegations in the Statement of Claim did not arise out of the activities of the Contractor, Lafleur. There were no allegations in the Statement of Claim that Lafleur or its servants did anything wrong; that is why the claim falls outside of the indemnity agreement.
Based on this analysis, the court found that neither Lafleur or Intact owed the National Gallery a duty to defend.
While this case does not offer anything new about the duty to defend, it provides a good analysis of the issues that arise in duty to defend disputes and a reminder that the allegations in the Statement of Claim must be carefully considered, along with the wording in the indemnity provision of the contract.
The matter of Rosen Express v. Northbridge is yet another case of stolen cargo for which Rosen sought coverage. The case underlines for insurers that courts will often take a broad approach to coverage and they must provide supporting evidence when alleging misrepresentation.
This case involved electronic goods which were ultimately destined for Best Buy in Quebec. Affidavit evidence supported that Greenway Carriers transported the goods to Rosen Express by leaving a Greenway trailer in Rosen’s yard. Rosen ultimately was tasked with delivering the trailer to Quebec. Notably, the Greenway and Rosen properties were directly beside one another.
The insurer argued that there should be no coverage for two reasons. First, it argued the goods were not in Rosen’s custody and thus not covered by the policy. In support of this, the insurer argued that the goods remained in Greenway’s trailer and it was a Greenway employee who completed the police report. The court rejected these arguments as speculative and accepted Rosen’s evidence that it intended to transport the goods using the Greenway trailer.
The court also found, based on the policy wording, that the cargo would be covered regardless of whether they were dropped off at the Rosen property. Greenway was found to be acting as Rosen’s agent and therefore the goods were considered to be in Rosen’s custody even if on the Greenway property.
Second, the insurer argued that Rosen made a material misrepresentation when it applied for insurance because it failed to disclose that it would be transporting electronic goods. There was a space on the application to specify the type(s) of electronic goods being transported, which was left blank. The application described the types of goods very generally, including “consumer goods”. In the application, Rosen provided evidence that electronics comprised 1 to 2% of its shipments.
Morgan J. rejected the insurer’s submission that there was a material misrepresentation. It was significant that the insurer did not provide any evidence to support that it was induced by the misrepresentation or that it would have treated the application differently. The court differentiated the case from one where an insured transports something drastically more dangerous or expensive than that declared on the application (e.g. explosives or gold bullion).
Although the court rejected the insurer’s coverage arguments, Rosen was not entitled to any compensation. There was a lack of evidence to support the value of the cargo as no claim had been made against Rosen. While there was some evidence on the bill of lading and post-loss amounts had been withheld from Rosen, the court was not satisfied that the cargo claim value could be determined with accuracy. Therefore, the court left for another day the issue as to whether the policy would respond to a cargo claim and the amount of same.
What happens when an auto insurer sends a policy termination notice to the named insured, but the named insured does not own the vehicle insured under the policy?
In Ontario (Minister of Finance) v. Traders General Insurance Co. (c.o.b. Aviva Traders) an individual was seriously injured as a passenger in a Hyundai motor vehicle owed by Peter Leonard. Peter Leonard’s spouse, Anne Leonard, had a policy with Traders that was terminated for non-payment of premiums prior to the accident. The Hyundai had been added to the policy a couple of years prior to the accident.
To cancel Anne Leonard’s policy, Traders had sent a termination notice by registered mail. It did not send a termination notice to Peter Leonard, and appeared to have no knowledge at the time of cancellation that he owned the Hyundai insured under the policy.
The injured party made a claim to the Fund for accident benefits and the Fund subsequently commenced a priority dispute with Traders, arguing – for a number of reasons – that the policy had been improperly cancelled and remained in force at the time of the accident.
The Superior Court sided with the Fund and held that Traders did not terminate the policy properly because it had failed to send the owner of the vehicle (Peter) a termination notice. The court stressed that owners must be properly identified at policy inception and thereafter, strict compliance with the statutory cancellation requirements is necessary, and insurers must notify named insureds of attempts to cancel a policy. The court held that under statutory condition 11, Traders could not validly cancel the policy unless it gave Peter Leonard fifteen days’ notice of the cancellation. Thus, the policy was not cancelled properly and the court ordered Traders to pay the Fund the amount of its accident benefits settlement with the injured person.
The Court of Appeal agreed with the Superior Court and dismissed the appeal. Among other things, the Court of Appeal held that Traders failed to comply with Statutory Condition 11 (1), which requires the notice to be given to “the insured”. In this case, Peter was an “insured” because he was the owner of the vehicle:
The policy that the appellant purported to terminate is an owner’s policy, which is defined in s. 1 of the Insurance Act as:
A motor vehicle liability policy insuring a person in respect of the ownership, use or occupation of an automobile owned by that person and within the description or definition thereof in the policy. [Emphasis added.]
It was never an issue in this case that before the purported termination, the policy was valid insurance that insured Peter Leonard as the owner of the insured vehicle.
Therefore, because the policy at issue was valid, and because it was an owner’s policy, the “insured” under that policy was Peter Leonard, the owner of the vehicles insured by the policy.
To summarize, the only issue was whether the notice of termination had the effect of terminating that policy. The notice was only sent to Anne Leonard, who was not the insured for the 1991 Hyundai vehicle because she did not own it. Because the notice of termination was not sent to the insured, as required by statutory condition 11(1), it was not effective to terminate the policy, and the trial judge made no error in so holding.
Traders should raise alarms for insurers who might not have done their due diligence when writing owners policies for people who might not have owned the vehicle being insured. This casereinforces the principle that auto insurers are held to extremely strict compliance standards when it comes to terminating an auto policy. The courts will not endorse a purported policy termination if the insurer failed to dot its I’s and cross it’s T’s.
Readers might recall the troubling decision in Echelon General Insurance Company v. Her Majesty the Queen, wherein the Superior Court held that an improperly terminated policy remains in full force and effect (in perpetuity) until the policy is terminated properly. Of course insurers rarely, if ever, revisit policies that have they have purported to terminate until a loss occurs, meaning that these improperly terminated policies can expose insurers to paying claims on policies that have not been generating any premiums for possibly many years.
To every insurer who writes auto policies, I ask: Do you know who owns the vehicles insured under your policies?
What happens when a Certificate of Automobile Insurance specifies that the policy includes coverages under certain endorsements, when those endorsements never make it onto the policy?
The Certificate and OPCF Endorsements
Ontario’s standard automobile policy (OAP1) offers a number of forms and endorsements that FSCO approves.
One such form is the Certificate of Insurance, which is an approved form that sets out, among other things, the specific terms of coverages and endorsements that form part of the policy in question. Although the standard Certificate is approved by the Superintendent of Insurance, insurers are allowed to submit their own version of a Certificate for approval, something that many insurers do.
Meanwhile, two of many available endorsements to the auto policy are, as follows:
An OPCF 23A endorsement provides for payment to a lienholder in the event of damage to the vehicle.
An OPCF 5 endorsement allows the lessor to rent or lease automobile(s) to the lessee who has completed the Ontario Application for Automobile Insurance - Owner’s Form (OAF 1). The endorsement expressly allows a lessor to rent or lease a motor vehicle to a lessee who has its own auto insurance policy. It also provides the standard auto coverages to a lessee under the policy as if the lessee were the named insured.
In Coast Capital v. Old Republic, a trucking company named 62254641 Canada Inc. (“622”) leased a 2008 Peterbilt tractor from a third party. Old Republic issued a Certificate of Automobile Insurance to 622 that described that vehicle. The Certificate also included a box for describing lessors and lienholders. The box stated:
Lienholders (to whom loss may be jointly payable) (if applicable)
AS PER OPCF 23A FORMS
Lessor (if applicable)
AS PER OPCF 5 FORMS
On June 15, 2012, 622 leased two more tractors, this time from Coast Capital. Coast Capital had informed its insurance broker in writing that it wanted third party liability coverage in the minimum amount of $2,000,000, and indicated “The policy must contain an OPCF #5 Permission to Lease or Rent Endorsement.” This document was found in Old Republic’s underwriting file. However, there was no evidence as to when it received that document.
On July 5, 2012, Old Republic issued an OPCF 25 Change Form showing 622 as the insured, and listing the two new Peterbilt tractors. The new tractors were identified as automobiles 2 and 4. The policy change that was noted on the form indicates “Automobile added to policy (Auto No. 2 and 4)”. The OPCF 25 also listed Coast Capital as the lessor of vehicles 2 and 4. It also recited that “all other terms and conditions of the policy remain the same”.
Of note, the OPCF 25 listed other related Endorsements that were mentioned in the original Certificate but failed to mention the OPCF 23A or 5 forms.
On November 12, 2012, one of the 2009 leased Peterbilt tractors (auto 2 or 4) was involved in a motor vehicle accident. Old Republic denied liability coverage to Coast Capital, taking the position that the OPCF 5 was not part of the policy.
The application judge held that the policy included an OPCF 23A form but did not contain an OPCF 5 form. He held that the OPCF 5 was never part of the Certificate of Insurance or added by the OPCF 25 form.
The Court of Appeal allowed the appeal and found coverage for Coast Capital under the policy. At the start of its analysis, the Court held that coverage under the standard auto policy is defined by the Certificate of Insurance on any given policy
The Certificate in question was not on the default Certificate form approved by the Superintendent, but it was on a FSCO approved form that Old Republic had submitted for its use. The Court noted that Old Republic had added the phrase “AS PER OPCF 5 FORMS” to the original Certificate in this matter, but that the phrase was not included on Old Republic’s approved form. The Court held that if Old Republic added the reference to the OPCF 5 on the Certificate in this case, the Certificate must have intended to include coverage for lessors and lessees – even though the actual OPCF 5 form was not attached to this policy. Further, had Old Republic included the phrase “AS PER OPCF 5 FORMS” to its approved Certificate, it would mean that its usual practice was to insure both lessees and lessors (as the OPCF 5 would do). The court concluded that if there was any ambiguity, it was caused by Old Republic’s uses of an “unapproved altered standard form”, and it would have to bear the consequences of doing so.
The Court also held that this finding was consistent with the commercial realities of the transaction. It concluded:
I conclude that the OPCF 5 endorsement is part of the Certificate; the insurer intended to provide liability coverage to both the lessor and lessee. The OPCF 25 Change Form did not delete that coverage, but added new vehicles. Absent deletion of the OPCF 5 coverage, I conclude that Coast Capital is entitled to the benefit of that coverage. Old Republic’s insertion of the OPCF 5 language into the Certificate accords with the commercial reality of the transaction. Old Republic was providing automobile insurance to a trucking company’s fleet. The trucking company leased multiple vehicles, to the knowledge of the insurer. It makes commercial sense for the lessors who were financing the purchase of the vehicles to protect themselves from liability as the owners of those vehicles when they would have no control over the trucking company operations.
There is nothing in the Certificate that suggests that the liability coverage described in the policy is solely for the benefit of the lessee.
The major takeaway from this case is that the Certificate of Insurance governs coverage under the policy. If the Certificate references a particular Endorsement on the policy that is not necessarily attached to the policy, the Court will defer to the coverage specified on the actual Certificate used in the case to determine coverage.
Insurance companies that insure leased/rented vehicles – and leasing/rental companies that lease/rent vehicles to others -- should review their various Certificates on a case-by-case basis to make sure they contain the coverages that the parties intended to be covered.
Does Uber’s fleet policy with Intact provide primary accident benefits coverage to passengers who do not have their own auto insurance policies? The first arbitration decision on this issue says “yes”.
In July 2016, FSCO approved a new standard fleet auto policy to provide primary coverage for private passenger vehicles engaged in “ridesharing” activities with a “transportation network company” or TNC. Intact Insurance then issued the fleet policy to Uber and Rasier Operations B.V., which contracts with individual “rideshare drivers” who use their own automobiles for Uber.
The policy was created to address a coverage gap in the standard OAP 1 auto policy in Ontario. Section 1.8.1 of the OAP 1 excludes coverage if the vehicle is being used to carry paying passengers. This meant that every time an Uber driver was operating a vehicle and engaged in Uber activities, he or she was violating the OAP 1 and driving without full coverage.
The policy purports to fill the coverage gap in the OAP 1 by eliminating the exclusion for “carrying paid passengers” noted in Section 1.8.1. Section 2 of the Endorsement under the policy (IPCF-6TN), specifies that the policy provides “primary coverage” for the automobile while it is being used for ridesharing purposes:
Ontario’s Accident Benefits Priority Scheme
Subsection 268(2) of the Insurance Act sets out a priority scheme for determining which insurer is responsible for paying a claimant statutory accident benefits after an automobile accident:
The claimant first has recourse against the insurer of an automobile in respect of which they are “an insured” (i.e., named insured, spouse, dependant, listed driver).
If recovery is unavailable under such policy, the claimant has recourse against the insurer of the automobile that they were in or which struck them.
If recovery in unavailable under such policy, the claimant has recourse against the insurer of any other vehicle involved in the accident.
Finally, if recovery in unavailable under such policy, the claimant has recourse against the Motor Vehicle Accident Claims Fund.
Ontario’s Priority Scheme and Uber
After Intact’s “Uber policy” was released, there was never any doubt that an Uber driver injured in an accident while driving for Uber would have recourse first against Intact, under the Uber policy, pursuant to section 2 of the Endorsement. There was also no question that a passenger who happened to have their own auto policy would have recourse against that policy for their accident benefits, pursuant to section 268 (2) of the Act.
However, Intact started taking the position that its policy did not provide “primary coverage” to passengers. Intact asserted that the second paragraph in section 2 of the Endorsement specifies that “for greater clarity…” Intact would be primary over any other policy insuring the rideshare driver. According to Intact, it followed that the policy was primary only with respect to the driver’s claims and not the passenger’s claims.
Intact also argued that any Uber vehicle was insured by two insurers at the time of an accident: The underlying insurer of the vehicle and Intact. Therefore, Intact asserted that passengers, who did not have their own policies, at the very least, would have coverage under both policies.
The First Uber Decision
In Northbridge v. Intact, the claimant passenger was involved in an accident while he was using an Uber to get from Point A to Point B. He applied to Northbridge for accident benefits, seeking recourse against the (underlying) insurer of the vehicle he was in. Northbridge then pursued a priority dispute against Intact, who took the position that it was not the primary payor of the passenger’s benefits.
Arbitrator Vance Cooper sided with Northbridge, finding that the wording in the Endorsement was clear, unequivocal, and unambiguous that the policy was primary for all accident benefits claims arising from passengers who did not have their own insurance:
However, the grant of coverage set out in Section 2. of IPCF 6TN - Coverage for Ridesharing Endorsement, goes further. It clearly, unequivocally and without ambiguity specifies that Intact, as the ridesharing insurer, provides primary coverage for the automobile only while the automobile is used in the pre-acceptance period and the postacceptance period. While Section 2 provides "greater clarity" for purposes of the rideshare driver's accident benefits coverage and the priority of third party liability coverage, this does not limit the grant of coverage specified in Section 2.
I am satisfied, on a plain reading of IPCF 6TN - Coverage for Ridesharing Endorsement, that Intact provides primary coverage for statutory accident benefits in relation to the claim of Romello B., being an occupant in the rideshare vehicle during the postacceptance period and by reason of Ramella B. having no access to any other policy of insurance (apart from the Northbridge policy).
Arbitrator Cooper also disagreed with Intact that the passenger could choose as between Intact and Northbridge. He held that Intact’s argument ignored the clear and unambiguous wording in the Endorsement, since it specifies that Intact is primary.
In my "humble" opinion, Arbitrator Cooper’s decision is right on the mark. Not only does it pay homage to the clear wording in the policy; it is consistent with the primary purpose of the policy, which is to fill the coverage gap in auto insurance during Uber activities. It also protects underlying insurers from paying benefits arising from risks they never intended to cover.
We expect Intact will appeal Arbitrator Cooper’s decision. In the interim, the Northbridge decision is a huge victory for underlying insurers, especially for those who not have any appetite for Uber risks.
My office is currently involved in several other arbitration cases against Intact on the same facts. Another hearing against Intact on the same facts is scheduled for June 18, 2018 before Arbitrator Philippa Samworth.
The Uber Coverage Debate appears to be far from resolved.