Many winter maintenance contracts require the contractor to add the property owner as an additional insured on its policy. But what happens when the contractor fails to do so and the owner is sued?
In Papapetrou v. 1054422 Ontario Ltd., 2012 ONCA 506 (C.A.), the plaintiff sued the Cora Group, alleging she slipped and fell on black ice on its property. Cora contracted with Collingwood Landscape for winter maintenance services. In the service contract, Collingwood agreed to name Cora as an additional insured on its CGL policy, but failed to do so. On a motion for summary judgment, Collingwood was ordered to assume Cora's defence and indemnify it for damages. Collingwood appealed. Cora conceded that the order to indemnify was premature so the primary issue on appeal was whether the motions judge erred in ordering Collingwood to assume Cora's defence.
The Court of Appeal set aside the original Order and substituted an Order that Collingwood pay for Cora's defence.
Simmons J.A. held that Collingwood's breach of its contractual obligation to name Cora as an additional insured did not create a duty to defend; rather, it gave rise to a remedy in damages. The quantum of such damages is the amount Cora will be required to pay for a defence of the claims that Collingwood's insurer would have paid had Collingwood fulfilled its contractual obligations. The costs would include all of the costs of Cora's defence except for those incurred exclusively to defend claims that do not arise from Collingwood's performance or non-performance of the contract. Cora was entitled to separate counsel given there were distinct claims against the two parties, which meant there would be an inherent conflict between them.