INDEX. Actual cash value. See Loss evaluation. Apportionment, 4:50. Appraiser. See Loss evaluation. Arson, 7:180 see also Fire; Perils, excluded

Transcription

1 Accident defective work, liability policy, 4:30.10 meaning of, 4:30, 4:30.10, 4:110 onus of proof re, 4:30 resultant or concomitant accidents, 10:50 Actual cash value. See Loss evaluation Apportionment, 4:50 Appraiser. See Loss evaluation Arson, 7:180 see also Fire; Perils, excluded Automobile insurance schemes, 3:90.10 Bad faith claim, 2:130 aggravated damages, 2:130 duty of good faith, 2:130 insured, against, 2:150 punitive damages, 2:130, 2:140 test re, 2:130 Bailee. See Bailment Bailment, 4:80, 8:50 Boiler and machinery breakdown policies business income coverage, 10:20, 10:70 explosions, 10:60 fire losses, 10:10 generally, 10:10 IBC agreement re disputed losses, 10:80 insuring agreement, 10:20 joint loss agreement, 10:10, 10:90 IN-1 December 2015

2 PROPERTY DAMAGE CLAIMS Boiler and machinery breakdown policies continued physical damage, 10:40 resultant or concomitant accidents, 10:50 sudden and accidental breakdown, meaning of, 10:30 causal test re, 10:30 negligence test re, 10:30 unexpected result test, 10:30 Breach of policy alcohol and drug use, 2:10, 2:150, 3:30 Business income coverage, 10:20, 10:70 Business interruption insurance calculation of amount payable, 5:20 clause wording, 5:20 contingent business interruption, 5:10 extra expense, 5:60 general average, 5:80 generally, 5:10 indemnity period calculation of, 5:40 commencement of, 5:20 extension of, 5:20, 5:50 measure of recovery, 5:30 off premises utility coverage, 5:70 purpose of, 5:10 By-law endorsements, 9:100 By-laws and building codes, 7:120 Cancellation of policy. See Renewal of policy Cause of damage/loss, see also Risk arson, 7:180 but for test, 4:170, 4:180 choice of law to interpret policy, 3: concurrent. See Concurrent cause electricity, 7:150 faulty design, 7:30 faulty workmanship, 7:40 fortuitous loss, 4:170 identifying, 4: IN-2

3 Cause of damage/loss continued intervening, 4: marijuana growing operations, 4:30, 6:40, 7:100, see also Perils, excluded mechanical breakdown, 7:70 mould and fungi, 7:90 not mentioned in policy, where, 4:70 proximate cause, 4:170, 4: faulty design exclusion and, 4:180 requirement re, 7:10 resulting damage, 1:10, 4:110, 7: sewers, 2:30, 4:20, 4:50, 4:60, 7:110, 7:220, 9:70 vacancy, 7:140 vandalism, 7:160 wear and tear, gradual deterioration and corrosion, 4:30, 6:40, 7:50, 7:200 Civil authority, 3:20 Chain reaction collision, 3:90.30 Claim bad faith. See Bad faith claim calculation of. See Loss evaluation claims examiner, 7: denial of. See Denying claims economic loss claim, 4:150 fraudulent. See Fraudulent claims notice of, 2:85, 9:10 policy coverage periods, 4:110, 4:220 Co-insurance, 6:20 Co-insured, innocent. See Interpretation Commercial contracts. See Interpretation Common employers, 8:60 Complex structure theory defective repairs, 4:160 economic loss cases, 4:160 explained, 4:150, 4:160 faulty design or workmanship exclusion, 4:160 house example, 4:160 resulting damage vs., 4:160 IN-3 March 2016

4 PROPERTY DAMAGE CLAIMS Compulsory government schemes. See No-fault regimes Concurrent cause, 4:50 American experience re, 4:60 apportionment, 4:50 described, 4:50 exclusion from coverage and, 4:50 proximate cause approach, 4:50 Conflicting other insurance clauses, 6:90 Construction liability policy completed operation hazard, 4:130 Course of Construction policies, 4:90 maintenance operation hazard, 4:130 Contamination. See Perils, excluded Contra proferentem rule. See Interpretation Corrosion, 7:50 Criminal behaviour, 7: Damage. See Property damage Damages aggravated, 2:130 punitive, 2:130, 2:140 Deductible, 6:30 Defend, duty to. See Duty to defend Denying claims. See Estoppel; Fraud; Limitation period; Material change in risk; Misrepresentation; Waiver Derangement, 7:70 Design or workmanship, faulty, 7:30, 7:40 complex structure theory and, 4:160 excluded peril, as. See Perils, excluded proximate cause and, 4: IN-4

5 Deterioration. See Perils, excluded Discoverability rule, 2:80 Duty of good faith 2:130, see also Bad faith claim Duty to defend apportion/contribution to defence costs, 4: duty to indemnify vs., 4:110 excess insurer, of, 4:100, 4:110 express provision requirement, 4:100 extrinsic evidence admission re, 3:60, 4:110 lost policy, 4:100 policy limits and, 4:110.20, 6:15 principles, 4:110 test for determining, 4:110 third party indemnification, 4:100 Duty to indemnify duty to defend vs., 4:110 Economic loss claim, 4:150, 4:160 Estoppel, see also Waiver coverage issue, where, 2: estoppel by representation, 2: factors giving rise to, 2: generally, 2: limitation period and, 2:70 promissory estoppel, doctrine of, 2: test re, 2: Evidence admission of extrinsic, 1:10, 3:60, 4:110, 6:40 arson requirements, 7: Exception clause exclusionary clauses and, 4:40 grant of coverage, not, 4:40 subcontractor work, 3:80 Excess coverage, 1:20, 3:30, 4:110.10, 4:110.30, 6:70 Excess insurer, 4:100, 4:110 IN-5 March 2016

6 PROPERTY DAMAGE CLAIMS Exclusionary clauses, see also Perils, excluded exceptions to exclusions, 4:40 nullifying coverage, 7: property owned, rented or used by insured, 3:20, 4:120, 7:40 unjust or unreasonable, 2:90 Explosions, 10:60 Extra expense, 6:90 Extrinsic evidence, 3:60 Fire boiler and machinery breakdown policies and, 10:10 friendly, 4:30.05 hostile, 4:30.05 misrepresentation and fire policy, 2:40 property policies, fire coverage. See Property policies subrogation and fire policy, 8:70 Food products, 4:30, 4:80, 4:170.10, 7:40.10 Forfeiture, relief from. See Relief from forfeiture Forum conveniens, 3:110, 3: Fraud defined, 2:50 inadvertence vs., 2:50 onus of establishing, 2:50 spectre of suspicion, 2:50 Fraudulent claims duty to abstain, scope of, 2:60 innocent co-insured coverage, 7: mandatory statutory conditions, 2:60 onus of proving, 2:60 vitiates coverage, 2:60 General average, 5:80 IN-6

7 General insurance principles, 3:80 Good faith, duty of, 2:130, see also Bad faith claim Indemnity duty to indemnify, 4:110 indemnity period. See Business interruption insurance subrogation and, 8:10 third party indemnification, 4:100 Innocent co-insured, see also Interpretation coverage for, 7: separate actions by, 7: Insurable interest, 4:80 scope of concept, 4:80 Insurance agents and brokers, duties of, 2:155, 7:200 Insured bad faith claim against, 2:150 co-insured. See Interpretation reasonable expectations of, 3:30 subrogation, 8:60 unnamed, 8:40, 8:60 Insurer assignment of mortgage to, 1:60 excess. See Excess insurer subrogation and. See Subrogation Insuring agreement, 4:10 Intellectual property, 4:140, 7:40.10 Intentional acts, 4:30, 7:170 Interpretation ambiguities, 3:20 commercial contracts, 3:40 expert evidence, 3:40 reasonability, 3:40 trade practice, 3:40 contra proferentem rule, 3:70 IN-7 March 2016

8 PROPERTY DAMAGE CLAIMS Interpretation continued contra proferentem rule continued ambiguity, meaning of, 3:20, 3:70 exclusions nullifying purpose of policy, 3:50 jurisdiction clause interpretation, 3:110 coverage provisions, of, 3:10 criminal behaviour, impact on coverage, 7: duty to defend, 3:60 extrinsic evidence, use of, 3:60, 4:110 exclusion clauses, of, 7: expert evidence, 3:30 extrinsic evidence, 3:60 duty to defend and, 3:60 limited use, 3:60 factual matrix, 3:10 general insurance principles, 3:80 generally, 3:10 guidelines, 3:10 history of policy, 3:20 identity of insured extrinsic evidence and, 3:60 innocent co-insured, coverage for, 7: ambiguous terms, 7: exclusion re guilty insured, 7: fraudulent claims, barring re, 7: generally, 7: intention of the parties focus, 7: separate actions by co-insureds, 7: spouses, 7: U.S. law, 7: jurisdiction clause, 3:110 non-resident defendant, 3:110 principles re, 3:110 proper forum determination, 3:110 principles, 3:10 between insurers, 3:100 proper law of contract, determination of, 3: forum conveniens, 3:110, 3: real and substantial connection test, 3:110 public policy, developed by courts, 3:110 reasonable expectations of parties, 3:30 innocent co-insured. See innocent co-insured, coverage for insured s expectations, 3:30 reasonable insured test, 3:30 IN-8

9 Interpretation continued innocent co-insured. See innocent co-insured, coverage for continued variations of rule, 3:30 statutory terms, 3:90 automobile insurance legislation, 3:90.10 loss transfer, 3:90.30 no-fault regimes, 3:90.20 total context approach, 3:90 trade practice, 3:30 Jurisdictional clause. See Interpretation Liability limits. See Limits of liability Limitation period contractual, 2:80.10, 2:80.20 discoverability rule, 2:80 generally, 2:80 multi-peril policies, 2:80.10 Ontario, new provisions, 2:80.20 settlement negotiations and, 2:70 waiver or estoppel of, 2:70 Limits of liability co-insurance, 6:20 conflicting clauses, 6:70 deductible, differences between, 6:70 Minnesota approach, 6:70 deductible, 6:30 Disputed Losses Agreement, 6:80 duty to defend, 6:15 escape clauses, 6:90 extrinsic evidence, use to establish limit, 6:40 generally, 6:10, 6:100 NOCO policies, 6:20 other insurance clauses, 6:50 property specifically insured in other policy, 6:60 sub-limits, 6:10 Loss evaluation actual cash value (ACV), 9:20, 9:30 market value test, 9:30 appraiser, appointment of, 9:50 disputes, 9:50 IN-9 December 2015

10 PROPERTY DAMAGE CLAIMS Loss evaluation continued by-law endorsements, 9:100 calculation of claim, 9:20 actual cash value (ACV), 9:20, 9:30 actual value of property, 9:30 automobile cases, 9:30 market value, 9:30 repair/replace value, 9:20, 9:30, 9:60 replacement cost endorsements, 9:30 tort vs. policy principles, 9:30 unique building, 9:30 forms, 2:85, 9:10 incorrect valuations, 9:40 notice of loss requirements, 2:85, 9:10 statutory conditions re, 2:85, 9:10 premium assessment and, 9:20 replacement value, 9:20, 9:30, 9:60 same site requirement, 9:70 site issues same site replacement requirement, 9:70 site restrictions, 9:80 wrongful non-payment of replacement coverage, 9:90 Loss of income, 3:20, 4:210, 5:20, 7:100, 8:10, 10:20, 10:70 Loss transfer, 3:90.30 Machinery breakdown policies. See Boiler and machinery breakdown policies Malicious damage. See Perils, excluded Marine policies, 5:90, 7:200 Material change in risk disclosure requirements, 2:120 meaning of, 2:120 notification provision, 2:120 onus of proof, 2:120 test re materiality, 2:120 Misrepresentation duty to inquire, 2:30 false description of property, 2:40 IN-10

11 Misrepresentation continued fire policies and, 2:40 generally, 2:20 knowledge imputed to underwriter, 2:30 materiality test, 2:20 misrepresentation vs. innocent omission, 2:40 onus of establishing, 2:20 Moral hazard, 1:10 Mortgage endorsement. See Property policies No-fault regimes, 3:90.20 fault determination rules, 3:90.20, 3:90.30 statutory accident benefits, 3:90.20, 3:90.30 Non-disclosure. See Misrepresentation Notice of loss or claim requirements re, 2:85, 9:10 Occurrence. See Accident Omission. See Misrepresentation Onus of proof accidental loss, of, 4:30 arson, 7:180 balance of probability, 4:30 excluded perils, of, 4:30, 4:30.30 fraud, re, 2:50, 2:60 material change in risk, 2:120 misrepresentation, 2:20, 2:50 Other insurance clauses, 6:80, 6:90 Perils, excluded, see also Exclusionary clauses arson exclusion, 7:180 claims examiner, investigation by, 7: evidentiary requirements, 7: standard of proof, 7:180 corrosion, 7:50 design, faulty 7:30 design vs. designing, 7:30 IN-11 December 2015

12 PROPERTY DAMAGE CLAIMS Perils, excluded continued design, faulty continued workmanship vs. design, 7:30.30 examples of, 7:20 fortuitous vs. non-fortuitous risks, 7:50 gradual deterioration, 7:50 inherent vice exclusion, 7:60 intentional exclusion, 7:170 latent defect exclusion, 7:60 latent pollution, 4:30.20 marijuana growing operations, 7:100 see also Cause of damage/loss marine policy, in, 7:200 mechanical and electrical breakdown and derangement, 7:70 mould and fungi exclusions, 7:90 pollution and contamination exclusions, 7:130 absolute nature of, 7:130 active vs. passive polluters, 7:130 definition, 7: greenhouse gases, 7: other considerations in coverage for pollution, 7: rewording by court, 7:130 scope, 7: recall exclusion, 7:40.10 resulting damage exception, 7: absence of, 7: rip and tear exclusion, 7:80 settling exclusion, 4:170, 7:110 sisterhood exclusion, 7:40.10 unjust or unreasonable exclusions, 7: vacancy exclusion, 7:140 shutdown vs. vacant, 7:140 unoccupied vs. vacant, 7:140 vandalism malicious damage, 7:160 war and terrorism exclusion, 7:190 wear and tear, 7:50 workmanship, faulty 7:40 Perils, insured property damage caused by, 7:10 POED policies, 4:10, 4:20 property, meaning of under, 4:140 Pollution. See Perils, excluded IN-12

13 Premiums assessment, 9:20 continued acceptance of, 2: late payment, 2:90, 2:100.10, 3:120 Pre-tender defence costs, 4: Promissory estoppel, doctrine of, 2: Proof. See Onus of proof Property damage, see also Accident; Onus of proof cause by insured peril, requirement re, 7:10 complex structure theory. See Complex structure theory definition of physical damage, 4:170 direct physical damage, 4:210 direct physical loss, 4:210 direct property damage, 4:180, 4:200 economic loss claims as, 4:150 intangible property, 4:150 meaning of, 4:150 property policy vs. liability policy, 4:120 timing of. See Trigger theories Property insured, 4:20 Property of others, 4:90 care, custody and control issue, 4:90 Course of Construction policies, 4:90 Property policies declaration page of, 1:10 different types, 1:10 fire coverage all-risk policies and, 1:40 deemed, 1:50 fire policies hostile and friendly fires, 4:30.05 smoke damage, 10:60.10 unjust or unreasonable exclusion in, 7: insuring agreement, wording of, 4:10 mortgage endorsement, 1:60, 2:125 American authorities, 2: cancellation of policy, 2:125, 4:230 IN-13 December 2015

14 PROPERTY DAMAGE CLAIMS Property policies continued mortgage endorsement continued generally, 2:125 insurer obtaining assignment of mortgage, 2:125 vacancy of property, 1:60 multi-peril policies, 1:40 property, meaning of, 4:140 statutory conditions, 1:40 subrogation, 8:85 types of, 1:10 builder s risk policies, 1:10 commercial property policies, 1:10 insurance policies, 1:10 voiding. See Fraud; Misrepresentation war and riot exclusions, 1:50 wording of, development of, 1:30 Proximate cause, 4:170, 4: Public perception, loss flowing from, 6:40 Public policy, 2:160 Reasonable expectations of parties. See Interpretation Rectification of policy, 3:30, 6:70 Relief from forfeiture, 2:90 Courts of Justice Act provision, 2:90 imperfect compliance vs. non-compliance, 2:90, 4: Insurance Act provision, 2:90 test for granting, 2:90 Renewal of policy, 3:120 automatic renewal, 3: cancellation, 3: certificate of renewal, 3:120 offer to renew, 3:120 Repairs defective, 4:160 repair value, 9:20, 9:30, 9:60 IN-14

15 Replacement repair/replace value, 9:20, 9:30, 9:60 replacement cost endorsements, 9:30 same site requirement, 9:70 wrongful non-payment of replacement coverage, 9:90 Repudiation, 2:110 Rescission, 2:110 Resulting damage, 7:220, see also Perils, excluded absence of exclusion, 7: Rip and tear coverage, 4:240 Risk, see also Cause of damage/loss; Material change in risk courting risk, 4:190 inevitable events and, 4:180 intentional damage vs., 4:190 long tail risk, 1:10 meaning of, 4:180 natural events, inherent, 4:180 Smoke, 10:60.10 Spoliation, 9:20 Statutory conditions alcohol and drug use, 2:10, 2:150, 3:30 cancellation of policy, 3:120 fraudulent claims and, 2:60 multi-peril policies, 1:40 statutory interpretation, 1:40 notice of loss requirements, 2:85, 9:10 property policies, re, 1:40 waiver, re, 2: Subrogation assertion against insured, prohibition re, 8:40 assignment of tort action, 8:20 basis of right, 8:10 contract between insured and third party, subjection to, 8:50 control of proceedings, 8:30 described, 8:10 IN-15 March 2016

16 PROPERTY DAMAGE CLAIMS Subrogation continued dominus litis, 8:30 equitable basis of, 8:10 fire policy, under, 8:70 formula, 8:10 generally, 8:90 indemnity vs. non-indemnity payment, 8:10 joint prosecution agreement, 8:80 partially insured losses, 8:10 suit in name of insurer, where, 8:20 third party contract with insured, 8:50 enforcement of waiver clause by, 8:60 Top Down principle, 8:10 vs. contribution, 8:30 waiver clauses, third party enforcement of, 8:60 Sue and labour clauses, 5:90, 5:100 deductible, application of, 5:90 extra expense coverage vs., 5:90 imminent threat expenses, 5:90 implied term, as, 5:90 Terrorism, 7:190 Third party enforcement of waiver clause by, 8:60 indemnification, 4:100 subrogation and, 8:50 Trigger theories, 4:220 continuous/triple trigger, 4:220 exposure, 4:220 injury in fact, 4:220 manifestation, 4:220 Umpire, 3:90, 9:50 Underwriter, duty to inquire, 2:30 Underwriting assessment, 1:20 risk determination, 1:20 Unnamed insured. See Insured IN-16

17 Vacancy. See Perils, excluded Vandalism. See Perils, excluded Vicarious liability generally, 3:50 motor vehicle accidents and, 3:90.40 statutory, 3:90.40 subcontractors and, 3:80, 4:30.10 Voiding policy generally. See Fraud; Misrepresentation rescission vs. repudiation, 2:110 Waiver continued acceptance of premiums, 2: estoppel and, 2:100.10, 2: generally, 2:100, 2: limitation period and, 2:70, 2: retraction of, 2: right to deny defence, 2: statutory conditions affecting, 2: test for determining, 2: unequivocal and conscious intention test, 2: writing and signing requirements, 2: valuation obligation, 2:30 War. See Perils, excluded Wear and tear. See Perils, excluded Wilful misconduct, 2:90, 2:140, 2:150, 7:200 Workmanship, faulty, 3:80, 7:40, see also Design or workmanship, faulty; Perils, excluded Wrap-up liability policy, 3:20, 3:60, 4:150, 4:220, 7:40, 7: IN-17 March 2016