Hercules Moulded Products Inc. v. Foster

Hercules Moulded Products Inc. v. Foster

Appeal dismissed because Stewart had no obligation to indemnify: the City's application/court order regarding the excavation was known to the insured and not disclosed and therefore excluded under the policy's s.3(b) exclusion, and the development agreements and alleged encroachment caused no compensable loss (no...

Source-derived case information.

Citation
2017 ONCA 445
Parties
Plaintiff (appellant): Hercules Moulded Products Inc.; Defendant (respondent): Robert J. Foster; Defendant (respondent): Stewart Title Guaranty Company; Defendant (respondent): Barat Farlam Millson; Defendant (respondent): estate of Arthur Barat
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
1 June 2017
Procedural Posture
Civil / Court of Appeal Appeal From Summary Judgment
Outcome
Appeal dismissed
Legal Topics
Title Insurance Coverage, Policy Interpretation, Indemnity, Disclosure and Notice, Prejudice, Encroachment, Development Agreements, Tax Assessments, Summary Judgment
Source Language
english
Civil Insurance Property Title Insurance Commercial Lending Title Insurance Coverage Policy Interpretation Indemnity +6 more

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Parties

Hercules Moulded Products Inc.

Plaintiff (appellant)

Robert J. Foster

Defendant (respondent)

Stewart Title Guaranty Company

Defendant (respondent)

Barat Farlam Millson

Defendant (respondent)

estate of Arthur Barat

Defendant (respondent)

Procedural Posture

Civil / Court of Appeal Appeal From Summary Judgment

Legal Issues

  1. 1 Whether title insurer Stewart was obliged to indemnify insured Hercules for costs of filling an excavation added to the tax bill
  2. 2 Whether development agreements registered on title and an alleged encroachment triggered coverage under the commercial lender endorsement
  3. 3 Whether Hercules' prior knowledge and failure to disclose the City's application/pre-existing order barred coverage under policy exclusions and prejudiced insurer

Ratio Decidendi

Appeal dismissed because Stewart had no obligation to indemnify: the City's application/court order regarding the excavation was known to the insured and not disclosed and therefore excluded under the policy's s.3(b) exclusion, and the development agreements and alleged encroachment caused no compensable loss (no diminution in value) on the evidence; Hercules' failure to notify Stewart in a timely manner prejudiced the insurer and further defeated coverage.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs to the respondent fixed at $16,000 inclusive of taxes and disbursements