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An insured may not be able to claim for personal injuries caused by a co-insured

Application by an insured for declaration that her homeowner policy insurer was obligated to provide her a defence to counterclaims made by defendants against her in a personal injury action commenced by her to recover for injuries suffered by her son. The court held that there was no duty to defend as the policy excluded coverage for liablity for bodily injury occurring to the insured, which by definition included the applicant’s son.

Desormeaux v. Dominion of Canada General Insurance Co., [2012] O.J. No. 2433, May 30, 2012, Ontarior Superior Court of Justice, P.B. Annis J.

This was an application for declaration that The Dominion of Canada General Insurance Company ("Dominion") was obligated to provide the applicant with a defence to counterclaims advanced against her. Dominion denied any duty to defend because the facts alleged in the counterclaims did not fall within the coverage provided. The applicant, Ms. Desormeaux, held a Homeowner’s Policy of Insurance with Dominion. Ms. Desormeaux’s son was injured in his grandmother’s yard when another child allegedly threw something that struck his eye. The Desormeaux family commenced an action claiming damages arising from the bodily injury suffered by the son. The defendants filed counterclaims against Ms. Desormeaux for contribution and indemnity towards her son’s injuries. Dominion denied that it had any obligation to defend Ms. Desormeaux against the counterclaims because coverage was excluded for obligations to pay claims for bodily injury to the named insured, which includes children of the named insured.

The Homeowner’s Policy of Insurance provided at provision "Coverage E – Personal Liability": "We will pay on your behalf all sums you become liable to pay as compensation for loss because of bodily injury or property damage."

However, the exclusion section provided as follows: "This policy does not apply to…Under Coverage E(1) Personal Liability – Bodily injury to you, or any person residing in your household, other than residence employees."

Both parties acknowledged that the application of an exclusion clause depended on its wording. The court held that by referring specifically to "Coverage E(1) Personal Liability" the linkage between the exclusion provision and the coverage provision was clearly described. The court further found that in framing coverage based on "liability to pay as compensation for loss for bodily injury" the reference in the exception to "bodily injury" was sufficiently focused in the sense that it encompassed "claims arising from" bodily injury. The court concluded that the Dominion exclusion clause clearly indicated that the policy by which the insurer provided personal liability coverage for sums it would otherwise be liable to pay on behalf of the insured as compensation for loss because of bodily injury, would not apply to bodily injury occurring to the insured (which by extension of the definition "you" excluded Ms. Desormeaux’s son).

This case was digested by Katherine E. Tinmouth and edited by David W. Pilley of Harper Grey LLP.

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