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Insurance, Personal Injury

Insurance dispute headed to the British Columbia Court of Appeal

Vancouver insurance and personal injury lawyer Sean Lerner says a case heading to the British Columbia Court of Appeal (BCCA) in the new year could have big implications for parents whose children are involved in civil claims.

The matter of Gill v. Ivanhoe Cambridge I Inc./Ivanhoe Cambridge I Inc., 2016 BCSC 252 (CanLII) involves a civil claim filed by Gurjeet Singh Gill, through his father and litigation guardian Kirpal Singh Gill.

The pleading alleged that on June 30, 2009, the two-year-old plaintiff was walking on the second floor of a shopping mall in Burnaby, B.C., when he fell through an opening in a glass partition near an escalator to the ground below and sustained “quite severe” injuries, the decision states.

The young plaintiff advanced various claims against the owner, occupier, and manager of the mall as well as the companies responsible for the maintenance and repair of the escalators, janitorial services, and a company alleged to be responsible for security and safety hazards at the mall.

“Three of the defendants thereafter filed third-party claims against Mr. Gill,” the decision reads. “Though there are some differences in those claims, their underlying focus is consistent. These third-party claims allege that on the day of the accident, the infant plaintiff entered the premises accompanied by his father, that the infant plaintiff played unsupervised in a location adjacent to the second floor escalator and the missing glass partition, and that the infant plaintiff’s injuries were caused or contributed to by the negligence of his father.

“Specifically, it is alleged that Mr. Gill failed to supervise his son and to otherwise ensure his safety. The third parties seek contribution and indemnity from Mr. Gill,” it continues.

Gill reported these third-party claims to his home insurance company Economical, who denied personal liability coverage citing a family exclusion in the policy. The exclusion states there is no coverage for claims against the policy holder "arising from bodily injury" to a member of the same household.

Lerner, who successfully represented Mr. Gill at summary trial, explains while while the exclusion clearly bars coverage for claims between family members, it is much less clear whether it applies to claims like the ones brought against Mr. Gill by the mall owners.

“The exclusion was meant to protect the insurance company from defending claims between family members,” he tells AdvocateDaily.com. “Insurers perceive a risk of collusion in those types of claims and they don't want to be involved. They believe there are policy holders who may not have any incentives to co-operate with the defence.

"The claims against Mr. Gill were just not claims of that nature," he says.

Lerner, principal of Lerner Law Corporation, argued the family exclusion is ambiguous and that reference to, and an interpretation of, various other coverage and exclusion provisions within the policy highlight this ambiguity.

Justice Peter G. Voith agreed, stating that “extending the family exclusion, in the manner that Economical proposes, would strip Mr. Gill of coverage that the policy was intended to provide.” 

Economical is appealing the decision, which the BCCA will hear in January.

“If companies or defendants can use this third-party action as kind of strategic litigation against the parents, it could discourage valid claims brought on behalf of injured children,” Lerner says. “We are hopeful the Court of Appeal decides the chambers judge was correct in his decision.”

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