Unintended Vacancy from Health Issues Can Lead to Insurance Coverage Exclusion

Unintended Vacancy from Health Issues Can Lead to Insurance Coverage Exclusion

Home insurance policies, unbeknownst to many policy holders, typically have coverage exclusions that apply if damage/loss occurs while the property is “vacant”. Typically, the issue arises when the homeowner intentionally leaves the home for a an extended period of time (ie. vacation, work trips, etc). However, what happens when unexpected events, such as health complications, cause us to be away from home for an extended period of time?

When is an Insured Vehicle Not Really an Insured Vehicle?

The cases of Skunk v. Ketash, released on March 22, 2016, and Fosker v. Thorpe, released in 2004, are an interesting example of two judges finding their way to opposite conclusions on similar facts. In both cases, the plaintiff was injured in an accident which occurred during an alleged theft of the plaintiff’s own insured vehicle.[1] In both cases, liability coverage was unavailable to the alleged thief. In both cases, the insurer of the vehicle argued that uninsured motorist protection was not available to the plaintiff because the stolen vehicle was insured, not uninsured. Interestingly, as indicated, the outcome of the two cases was different.

Relief From Forfeiture Under the Courts of Justice Act in Auto Insurance Cases: A Review of Kozel v. The Personal Insurance Company

The Ontario Court of Appeal’s decision in Kozel v. The Personal Insurance Company, 2014 ONCA 130 has expanded the availability of relief from forfeiture under section 98 of the Courts of Justice Act. The court’s decision confirms that relief from forfeiture under this section is available for violations of statutory condition 4(1) of Ontario’s standard automobile insurance policy (OAP1), even where section 129 of the Insurance Act does not apply.

Kozel has altered the landscape for statutory condition 4(1) denials. The Court of Appeal held that driving with an expired licence is not non-compliance with a condition precedent in an insurance contract, but imperfect compliance. Kozel expands access to relief from forfeiture, concluding that only in rare cases will a finding of non-compliance be made. In most cases, the breach will be deemed imperfect compliance, and relief from forfeiture may be available.

Carriage Disputes in Subrogated Claims: Until Fully Indemnified the Insured Controls the Action – Zurich v. Ison T.H. Auto Sales, 2011 ONCA 663.

In Zurich v. Ison T.H. Auto Sales, following a large loss event, the insurer paid out $1.1 million to its insured. The insured claimed that it had an additional uninsured loss of $700,000 and commenced an action against the alleged wrongdoer, including in its action both its claim for its uninsured loss and the insurer’s subrogated claim. A dispute arose between the insured and the insurer over who should have carriage and control of the action. The insurer brought an application for carriage of the action. The application was dismissed by the application judge.