Duty to defend metal in eye of NHL goalie, 13kg of heroin in the trunk, and a $90K telephone scam
This week on Legally Speaking with Michael Mulligan:
In August of 2015, Mr. Upton was attempting to straighten a bent metal plate from the steering mechanism of his 1955 Chevrolet Bel Air. He had removed it from the vehicle, placed it on a concrete step in his backyard, and was hitting it with a sledgehammer.
Mr. Sexsmith was visiting Mr. Upton and watching his car repair efforts.
Unfortunately, on the last occasion Mr. Upton struck the metal plate with the sledgehammer, the plate flew into the air and struck Mr. Sexsmith in the face causing significant injuries to his eye and face.
Mr. Sexsmith was a professional hockey goalie. In 2007 he was drafted by the San Jose Sharks.
The injuries Mr. Sexsmith suffered ended his hockey career.
Mr. Upton had a $1 million homeowners insurance policy from Wawanesa Mutual Insurance Company. This policy excluded claims arising from the “use or operation” of “any motorized vehicle”.
Mr. Upton also had $5 million in insurance on the 1955 Chevrolet Bel Air from ICBC. This policy does not cover any claim that is not a result of the “use or operation” of the Bel Air.
In addition to the duty to indemnify an insured for a covered loss, an insurance company has a duty to defend a claim. This required the insurance company to pay for a lawyer to defend the claim.
ICBC did not want to share the cost of defending the claim. They alleged that repairing the bent metal plate was not the “use or operation” of the car.
The duty to defend a claim is quite broad and is triggered when there is a possibility that the allegations could result in a loss that would be covered by a policy. As s result, the judge hearing the case concluded that ICBC did need to pay half the cost of defending the claim.
There are numerous cases that have concluded various other efforts to repair vehicles are included in the “use or operation” of a vehicle as long as the plan was to repair the vehicle so it could be driven again.
Also on the show, a case involving a man driving a courtesy car from the US to Canada, with 13 kg of heroin in the trunk of the car, is discussed.
In order to be convicted of importing or possessing drugs for the purpose of trafficking, the Crown must prove that the person knew they had the drugs.
In this case, none of the fingerprints on the drug packaging matched the man driving the car, and there was no drug residue on the gloves the man had with him.
The man driving the car testified that he did not know the drugs were in the trunk and, while the judge didn’t necessarily believe the man, he was unable to conclude that he wasn’t telling the truth and so found him not guilty.
Finally, on the show, a case involving a Chinese telephone scam is discussed.
The fraudsters were able to persuade a retired home care worker to send her life savings of $90,000 to a Chinese bank, via a third party, and through a small wire transfer company.
The funds were initially deposited into an account at CIBC. CIBC then provided a bank draft payable to the small wire transfer company.
Upon being presented with the bank draft the wire transfer company sent funds to the bank in China.
Before the bank draft had cleared CIBC became suspicious of the transaction and froze the money in the account.
Both the small wire transfer company and the retired home care worker wanted the $90,000 in the CIBC bank account.
Ultimately, the judge ordered that the funds be returned to the retired home care worker.
Follow this link for a transcript of the show and links to the cases discussed.