Alie v. Bertrand & Frere Construction Company Limited

Alie v. Bertrand & Frere Construction Company Limited

On the facts found by the trial judge the concrete deterioration caused physical damage to third‑party property beyond the insureds’ raw product; therefore property damage within CGL policies existed. Manifestation/exposure doctrines could not be applied to narrow coverage given the evidence of continuous...

Source-derived case information.

Citation
C34246, C34251, C34253, C34282, C34289, C34290, C34293, C34316, C34336, C35599
Parties
Plaintiffs: Bernard Alie and Others; Defendant/third‑party Plaintiff: Bertrand & Frere Construction Company Limited; Defendant/appealant/third‑party Plaintiff: Lafarge Canada Inc.; Third or Subsequent Party (respondent): Boreal Insurance Inc.; Third or Subsequent Party (respondent): Kansa General International Insurance Company Ltd.; Third or Subsequent Party (respondent): Scottish & York Insurance Co. Limited; Third or Subsequent Party (respondent): Chubb Insurance Company of Canada; Third or Subsequent Party (respondent): National Union Fire Insurance Company of Pittsburgh, P.A.; Third or Subsequent Party (respondent): CIGNA Insurance Company of Canada; Third or Subsequent Party (respondent): Guardian Insurance Company of Canada; Third or Subsequent Party (respondent): Reliance Insurance Company; Third or Subsequent Party (respondent): American Home Insurance Company; Third or Subsequent Party (respondent): Royal Insurance Company of Canada; Third or Subsequent Party (respondent): Canadian General Insurance Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
6 December 2002
Procedural Posture
Civil Insurance Coverage and Indemnity Dispute Arising From Negligence/defect Action / Appeal From Trial Judgment (court of Appeal Decision)
Outcome
Appeal allowed in part and dismissed in part: Guardian Insurance Company of Canada’s appeals allowed (relieved of obligations for 1987 defence costs and third‑party costs); all other appeals and cross‑appeals dismissed; trial judge’s allocation of liability, application of injury‑in‑fact/continuous trigger and...
Legal Topics
Coverage Under CGL Policies, Property Damage Vs Economic Loss, Occurrence, Rip and Tear Endorsement/exclusion, Trigger of Coverage (exposure/manifestation/injury in Fact/continuous), Duty to Defend, Apportionment of Defence Costs, Third Party Costs, Misrepresentation in Insurance Applications, Issue Estoppel
Source Language
english
Insurance Law Civil Liability Contract Interpretation Civil Procedure Appeals Coverage Under CGL Policies Property Damage Vs Economic Loss Occurrence +7 more

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Parties

Bernard Alie and Others

Plaintiffs

Bertrand & Frere Construction Company Limited

Defendant/third‑party Plaintiff

Lafarge Canada Inc.

Defendant/appealant/third‑party Plaintiff

Boreal Insurance Inc.

Third or Subsequent Party (respondent)

Kansa General International Insurance Company Ltd.

Third or Subsequent Party (respondent)

Scottish & York Insurance Co. Limited

Third or Subsequent Party (respondent)

Chubb Insurance Company of Canada

Third or Subsequent Party (respondent)

National Union Fire Insurance Company of Pittsburgh, P.A.

Third or Subsequent Party (respondent)

CIGNA Insurance Company of Canada

Third or Subsequent Party (respondent)

Guardian Insurance Company of Canada

Third or Subsequent Party (respondent)

Reliance Insurance Company

Third or Subsequent Party (respondent)

American Home Insurance Company

Third or Subsequent Party (respondent)

Royal Insurance Company of Canada

Third or Subsequent Party (respondent)

Canadian General Insurance Company

Third or Subsequent Party (respondent)

Procedural Posture

Civil Insurance Coverage and Indemnity Dispute Arising From Negligence/defect Action / Appeal From Trial Judgment (court of Appeal Decision)

Legal Issues

  1. 1 Whether plaintiffs’ losses constituted ‘property damage’ under CGL policies
  2. 2 Whether ‘rip and tear’ endorsements or exclusions applied
  3. 3 Whether loss resulted from an ‘occurrence’ within policy wording

Ratio Decidendi

On the facts found by the trial judge the concrete deterioration caused physical damage to third‑party property beyond the insureds’ raw product; therefore property damage within CGL policies existed. Manifestation/exposure doctrines could not be applied to narrow coverage given the evidence of continuous progressive injury from 1986–1992; the injury‑in‑fact together with the continuous (triple) trigger was the appropriate characterization to permit equitable pro rata apportionment across policy years. Excess insurers who had contractual defence covenants or who followed underlying policies were obliged to contribute to defence and third‑party costs where their layers were reasonably at...

Court Disposition

Appeal allowed in part and dismissed in part: Guardian Insurance Company of Canada’s appeals allowed (relieved of obligations for 1987 defence costs and third‑party costs); all other appeals and cross‑appeals dismissed; trial judge’s allocation of liability, application of injury‑in‑fact/continuous trigger and...

Orders

  • Guardian Insurance Company of Canada relieved of obligation to pay part of the defence costs for the 1987 policy period
  • Guardian Insurance Company of Canada held not liable for third‑party costs; third‑party costs for 1987 to be apportioned equally among remaining insurers (Boreal, Scottish & York, American Home)