Homeowner and auto insurers have a concurrent duty to defend against injuries arising from the insured sledgehammering a piece of his vehicle in his backyard

Insurance law – Homeowner’s insurance – Duty to defend – Exclusions – Third party claims – Occupiers liability – Use of vehicle

Wawanesa Mutual Insurance Co. v. Insurance Corp. of British Columbia, [2021] B.C.J. No. 670, 2021 BCSC 595, British Columbia Supreme Court, April 1, 2021, G.P. Weatherill J.

Wawanesa Mutual Insurance Company sought a determination that the Insurance Company of British Columbia had a duty to defend the insured against a personal injury action by the plaintiff.

The insured’s residence was insured by Wawanesa under a homeowner’s policy that excluded claims arising from the use or operation of any motorized vehicle. The insured’s car was insured for third-party liability coverage through ICBC, and the policy insured claims arising from the use or operation of the vehicle.

The insured removed a bent metal plate from the vehicle’s steering mechanism to correct a steering issue, with the intent of straightening it with a sledgehammer in the insured’s backyard. The plaintiff was visiting the insured’s backyard, watching the activity. On the third blow of the sledgehammer, the metal plate flew into the air and struck the plaintiff in the face. The plaintiff commenced an action against the insured for negligence at common law and under the Occupiers Liability Act (the “OLA”).

The court found that both Wawanesa and ICBC were primary insurers and they had a concurrent duty to defend the insured in the plaintiff’s action.

The plaintiff’s action engaged the ICBC policy because the activity was in respect of the insured’s “use” of the vehicle. The true nature of the activity was repairing a part of the vehicle’s steering mechanism. There was a causal link between the repair activity and the injuries suffered by the plaintiff.

The plaintiff’s action also engaged Wawanesa’s policy by making allegations of negligence and breaches of duties owed under the OLA, and therefore, Wawanesa had a concurrent duty to defend.

This case was digested by Erika L. Decker, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Erika L. Decker at [email protected].

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