Thorburn Wharf Fisheries Ltd. v. ING Insurance Company

Thorburn Wharf Fisheries Ltd. v. ING Insurance Company

The exclusion clause G(ii) is broad and unambiguous; it excludes loss or damage "directly or indirectly caused" by "waterborne objects" and that term includes vessels; therefore the damage caused by the vessel is excluded and the policy does not cover the loss.

Citation
2010 NSSC 181
Parties
Plaintiff as Applicant: Thorburn Wharf Fisheries Limited; Defendant as Respondent: ING Insurance Company of Canada; Defendant as Respondent: Aviva Canada Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
7 January 2010
Procedural Posture
Chambers Motion (pre Trial Determination of Question of Law) / Pre Trial Motion Under Nova Scotia Civil Procedure Rules 12 and 23
Outcome
Defendant's position prevails; policy exclusion applies and there is no coverage for the loss
Legal Topics
Policy Interpretation, Exclusion Clause, Windstorm or Hail Exclusion, Waterborne Object Exclusion, Coverage Dispute
Source Language
English
Insurance Law Contract Law Civil Procedure Policy Interpretation Exclusion Clause Windstorm or Hail Exclusion Waterborne Object Exclusion Coverage Dispute

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Parties

Thorburn Wharf Fisheries Limited

Plaintiff as Applicant

ING Insurance Company of Canada

Defendant as Respondent

Aviva Canada Inc.

Defendant as Respondent

Procedural Posture

Chambers Motion (pre Trial Determination of Question of Law) / Pre Trial Motion Under Nova Scotia Civil Procedure Rules 12 and 23

Legal Issues

  1. 1 Whether damage to the wharf is excluded by the policy's WINDSTORM OR HAIL exclusion clause (G)(ii)
  2. 2 Whether the term "waterborne object" in the exclusion includes a vessel

Ratio Decidendi

The exclusion clause G(ii) is broad and unambiguous; it excludes loss or damage "directly or indirectly caused" by "waterborne objects" and that term includes vessels; therefore the damage caused by the vessel is excluded and the policy does not cover the loss.

Court Disposition

Defendant's position prevails; policy exclusion applies and there is no coverage for the loss

Orders

  • Determination that the WINDSTORM OR HAIL exclusion clause G(ii) applies and excludes coverage for the damage in this matter
  • Costs to be resolved by subsequent agreement or court determination following further submissions