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Madam! Please Cooperate and Don't Disappear!!




We are all aware of the Statutory Conditions that form part of the insurance contract. One of the most important duty of the Insured is to co-operate with the Insurer at all stages during a claims process. This duty ties to the duty of utmost good faith where both the parties are obliged to act in good faith under the contract of insurance.


In Travellers Indemnity Co. v. Sumner Co. Ltd. and Fraser, 1960, West, J J.A., presiding in the New Brunswick Supreme Court, Appeal Division, stated:


The duty of the insured to co-operate with the insurer, being a condition precedent to his right to recover, requires him to assist willingly and to the best of his judgment and ability. If in this connection a breach occurs in some material respect the insurer is entitled even to refuse to defend an action. Lack of cooperation, however, must be substantial. No inconsequential or trifling breach of such obligation should serve to exonerate the insurer from his contractual liabilities under the policy.


It is pertinent to note that the lack of co-operation must be substantial enough to void coverage under the contract of insurance, and/or to avoid the contractual obligations.


In Ruddell v. Gore Mutual Insurance Company, 2019, a recent case discussed by the Court of Appeal of Ontario, the duty of co-operation of the Insured was discussed, and the extent of this duty was analysed.


The facts of the case are as under:


BACKGROUND


A single vehicle accident took place on June 23, 2008. The vehicle, at the material time, was driven by Alan Stewart, who pleaded guilty to dangerous driving causing bodily harm to the passenger in the car, Mr. Ruddell, who sustained injuries in the accident. Gayle Bass, the mother of Mr. Stewart, was the owner of the car at the material time.


INSURERS


Gore Mutual Insurance Company (“Gore”) was the insurer of the owner of the vehicle and Allstate Insurance Company of Canada (“Allstate”) was the insurer of Mr. Ruddell.


SUMMARY JUDGMENT MOTION


The plaintiffs brought an action for the payment of insurance monies against the Insurers. The issue was which insurer, Gore or Allstate, should satisfy the judgment.


Gore argued that Ms. Bass breached the policy by failing to cooperate with Gore in defending the action brought by the plaintiffs, alleging that she failed to assist in attempting to obtain her son’s co-operation. She changed her residential address, following her nomadic lifestyle, without informing the Insurers and was not traceable until October 2014.


The motion judge concluded that Gore was liable for the judgment holding that Gayle Bass did not breach the statutory condition requiring co-operation with the Insurers, to forfeit the proceeds under the insurance policy.


The motion judge found a series of obvious errors made by the parties in trying to locate Ms. Bass:


Firstly, counsel waited some 4 months after the letter of September 20, 2010, was sent to her at the Sainte-Marguerite-du-Lac-Masson to try and reach her. It was sent to the wrong address. Then it was not until some 9 months after that when counsel received no reply that another attempt to contact her was made. The letter was again sent to the Wasaga Beach address that Gore knew was sold over a year before. Not surprisingly, she could not be located. Thereafter, for some reason that escapes me, any further effort to contact her or serve her with documents, were consistently sent to the Wasaga Beach or Verdun addresses where it was clear and apparent to everyone dealing with the file Ms. Bass no longer lived. No one seemed to have thought it might be helpful to try and make more inquiries directed to the Sainte-Marguerite-du-Lac-Masson address which was actually her last known address. Finally, the evidence does not establish that Ms. Bass was somehow evading process or trying to hide from those responsible in litigating the lawsuit. This is made apparent by the fact that Allstate was able to locate her in October of 2014 and speak with her. When contacted again, she cooperated.


Further, it was stated:


I appreciate that in the letter of September 20, 2010, she was asked to advise Gore if she changed her address. However, this one request in the context of the whole of the history and circumstances of Ms. Bass’s cooperation and the failures to try and locate her, does not meaningfully advance Gore’s case.


Gore appealed.


ISSUES


The most important issue discussed by the court of appeal was:


Whether the motion judge erred in finding that Ms. Bass did not breach the policy.


ANALYSIS


The onus is upon the Insurer to establish that the Insured breached the duty to co-operate by not keeping the Insurers abreast on her whereabouts and that the breach was substantial enough to void contractual obligations.


The court stated that whether an insured has engaged in substantial non-cooperation is, “a pragmatic question to be determined in each case in the light of the particular facts and circumstances”: Reid v. Gore Mutual Insurance, [1980] O. J. No. 750 (H. Ct. J.), at para. 46.


Dismissing the appeal, Hourigan J.A stated:


The information about Mr. Stewart’s address in Ms. Bass’ original statement was not specific and there was no evidence that the adjuster or Gore sought more detailed information either during that interview or in a later telephone discussion with Ms. Bass. It is also significant that nowhere in the September 20, 2010 letter does Gore seek information regarding Mr. Stewart’s whereabouts. In these circumstances, where the only relevant information the insured could possibly have had was her son’s current address, it was open to the motion judge to conclude that the failure of Ms. Bass to provide her own up-to-date address did not constitute a substantial failure to cooperate. Therefore, there is no basis for appellate interference with that finding.


Takeaways


Be specific and detailed in your requests for information. Make sure the intent of information requested is clear and unambiguous. Tell the party being interviewed what information you are looking for and ask all the relevant questions that one may think of, even if it is known that the interviewee may not have that information. There are no “stupid questions” in an investigation.


Further, do not delay the process of locating an untraceable party. Follow logic and common sense in trying to locate a party. Finally, before bringing in a motion for the breach of duty of co-operation under the insurance policy, make sure the breach, even if proven, was substantial enough and the Insured will not be able to obtain relief from forfeiture even if the breach is proven. Remember, the onus is upon the Insurers to prove the breach and is upon the Insured in an application to seek relief from forfeiture if the breach is proven.

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