Miersma v. Pembridge Insurance Company
Because the statement of claim alleged negligent misrepresentation as a separate and distinct tort claim, the insurer's duty to defend was engaged and the court was not satisfied that the cited policy exclusions or the contractual disclaimer clearly relieved the insurer of that duty, so the appeal was dismissed.
Source-derived case information.
- Citation
- C44487
- Parties
- Respondent: Arthur Miersma; Respondent: Phyllis Miersma; Appellant: Pembridge Insurance Company
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 20 April 2006
- Procedural Posture
- Civil Appeal / Court of Appeal Judgment
- Outcome
- Appeal dismissed; insurer not relieved of duty to defend on the record before the Court; costs awarded to respondents.
- Legal Topics
- Negligent Misrepresentation, Duty to Defend, Insurance Policy Exclusions, Disclaimer, Pleading Analysis
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Arthur Miersma
Respondent
Phyllis Miersma
Respondent
Pembridge Insurance Company
Appellant
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Legal Issues
- 1 Whether a negligent misrepresentation claim pleaded separately triggers the insurer's duty to defend distinct from a breach of contract claim
- 2 Whether the policy exclusion clauses cited by the insurer relieve it of the duty to defend
- 3 Whether the disclaimer in the agreement of purchase and sale defeats the negligent misrepresentation claim at the duty to defend stage
Ratio Decidendi
Because the statement of claim alleged negligent misrepresentation as a separate and distinct tort claim, the insurer's duty to defend was engaged and the court was not satisfied that the cited policy exclusions or the contractual disclaimer clearly relieved the insurer of that duty, so the appeal was dismissed.
Court Disposition
Appeal dismissed; insurer not relieved of duty to defend on the record before the Court; costs awarded to respondents.
Orders
- Appeal dismissed
- Insurer remains subject to duty to defend based on the pleadings
Full Case Text
Judgment text and source record
1 paragraphs
Miersma v. Pembridge Insurance Company Collection Decisions of the Court of Appeal Date 2006-04-20 Docket numbers C44487 Judges McMurtry, Roy; Doherty, David H.; Moldaver, Michael James Subject Civil Decision Content DATE: 20060419 DOCKET: C44487 COURT OF APPEAL FOR ONTARIO RE: ARTHUR MIERSMA and PHYLLIS MIERSMA (Respondents) – and – PEMBRIDGE INSURANCE COMPANY (Appellant) BEFORE: MCMURTRY C.J.O., DOHERTY and MOLDAVER JJ.A. COUNSEL: M. Van Dusen for the appellant Robert Reynolds for the respondents HEARD & ENDORSED: April 18, 2006 On appeal from the judgment of Mr. Justice A. deLotbinière Panet of the Superior Court of Justice dated October 18, 2005. APPEAL BOOK ENDORSEMENT [1] The application and the appeal proceeded on the basis that the insurance policy provided coverage for negligent misrepresentation subject to the exclusions contained in the policy. In our view, the applications’ judge properly determined that the statement of claim alleged the tort of negligent misrepresentation as a separate and distinct claim from that of breach of contract. In that circumstance the negligent misrepresentation claim could not be said to be derivative in the sense described in Scalera. It also serves to distinguish this case from Randhawa v. DaRosa and Graham v. Raposo where there was no allegation of any pre-contractual negligent misrepresentation. The appellants “disclaimer argument” based on the terms of the agreement of purchase and sale also fails because it addresses the merits of the litigation and not the appellants duty to defend. [2] For the purposes of this appeal we are not satisfied that any of the exclusion clauses are sufficient to relieve the insurer appellant of the duty to defend. [3] The appeal is therefore dismissed. The Respondents are entitled to their costs in the amount of $12,266.71.