The Duty to Defend in a Homeowner's Policy

McKinnon J. of the Ontario Superior Court of Justice recently released a decision arising from a Rule 21 motion for determination of a question of law, namely whether an insurer owes a duty to defend homeowners arising out of a homeowner's insurance policy. The claim against the homeowners arose after they sold their house. The purchasers alleged misrepresentation on the part of the homeowners for failing to disclose the condition of the property. Poplawski v. McGrimmon, [2010] O.J. No. 33.

What I found interesting in this decision is the very helpful overview of the law on an insurer's duty to defend. Here are a few paragraphs from this overview:

There is a three step process to determine whether an insurer has a duty to defend its insured:
(a) Are the plaintiff's legal allegations properly pleaded?
(b) Are any claims entirely derivative in nature?
(c) Do any of the properly, pleaded non-derivative claims potentially trigger the insurer's duty to defend?

In considering whether a plaintiff's allegations are properly pleaded, courts are not bound by the legal labels chosen by the plaintiff. When ascertaining the scope of the duty to defend, a court must look beyond the choice of labels and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have merit: the court need only decide, based on the pleadings, the true nature of the claims. A plaintiff cannot change negligence into an intentional tort simply through the choice of words.

In considering whether any of the claims potentially trigger the insurer's duty to defend, where the allegations of negligence constitute a separate tort and are not an attempt to "dress" intentional conduct as negligence, the insurer will be under a duty to defend: see Godonoaga (Litigation guardian of) v. Khatambakhsh, [2000] O.J. No. 2172 (C.A.) at paras. 28 and 32.

If there is any uncertainty as to whether a claim falls within the applicant's policy coverage, the uncertainty must be resolved in favour of the insured: see Co-Operators General Insurance Co. v. Murray, [2007] O.J. No. 2329 (S.C.J.) at para. 6.

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