Newfoundland Court Finds Insured Under No Obligation To Engage In Appraisal

TG
Theall Group LLP

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Theall Group LLP is a commercial litigation firm committed to providing our clients with superior legal representation in complex disputes. We have broad experience at all levels of the Ontario and Federal courts. Our practice includes acting for large multi-nationals and governments, with practice concentrations in the commercial insurance,  product liability, risk management, contractual disputes, class actions, and arbitration. We act exclusively for policy holders and brokers with respect to insurance coverage.
In a recent decision, the Newfoundland and Labrador Supreme Court (NLSC) refused to compel the insured to engage in an appraisal of a loss under a property insurance policy.
Canada Insurance
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Introduction:

In a recent decision1 , the Newfoundland and Labrador Supreme Court (NLSC) refused to compel the insured to engage in an appraisal of a loss under a property insurance policy. Due in large part to an apparent policy drafting error, the NLSC rejected the insurer's argument that the appraisal process was mandatory.

Facts:

The insured, Interprint Systems Limited, operated a retail print shop in St. John's Newfoundland and had an all-risk, multi-peril property insurance policy through Co-operators General Insurance Company. In December 2016, Interprint discovered that fuel oil had leaked into its building. Co-operators confirmed coverage for the Leak under its policy. Over two years, the parties could not agree on the cost to address the losses incurred by Interprint because of the leak.

In June 2022, Co-operators applied for an order compelling Interprint to engage in an appraisal, for the purposes of valuing the amount of Interprint's claim.

Legal Analysis:

The application was heard by Justice Handrigan. He considered whether Interprint was obligated – either by the policy itself or by any provincial statute – to participate in an appraisal.

The parties were unable to find any prior case law in Newfoundland and Labrador addressing the availability of appraisals under property insurance policies. As a result, Justice Handrigan reviewed case law and relevant insurance statutes from other provinces.

Statutory Obligations:

Justice Handrigan found that while Ontario law deems certain statutory conditions to be every part of every all-risk property insurance contract containing an appraisal clause and in force in Ontario, there is no equivalent statutory provision in Newfoundland.2 He also distinguished all-risk property policies from property policies that deal only with fire or automobile risks. Newfoundland's Insurance Contracts Act deems statutory conditions to be considered part of certain property insurance contracts that provide for appraisals, but only if the contract is for fire or automotive insurance.3 Justice Handrigan held that nothing in the act mandated the appraisal process for all-risk, multi-peril property policies.4

Co-operators argued that section 9(1) of the Insurance Contracts Act required the insured to engage in an appraisal process. However, Justice Handrigan found that section 9(1) was only relevant if the policy itself provided for an appraisal. He thus then had to turn to the language of the policy.

He found that the insurance contract did not incorporate the appraisal process or section 9(1) of the Insurance Contracts Act. He noted that an appraisal process was referenced in Condition 11 of one of the policy forms allegedly issued by Cooperators (Form No. AB). Condition 11 required the parties to settle their differences "by appraisal ... as provided under the Insurance Act."

Justice Handrigan observed that there is no Insurance Act in Newfoundland. There is only an Insurance Contract Act. The insured would not have understood the policy's reference to "the Insurance Act" to be a reference to section 9(1) of the Insurance Contracts Act. Accordingly, Justice Handrigan rejected the insurer's argument that a statutory obligation for an appraisal existed.

Contractual Obligation:

Justice Handrigan held that the insurer could not prove that Form No. AB had actually been provided to the insured.5 He concluded by reinforcing that any ambiguities in the contract should be construed against the insurer.6

Conclusion:

This decision reiterates that statutory obligations in the context of property insurance appraisals vary across different provinces. It also underscores the importance of an insured diligently reviewing its policy to confirm if the insurer's interpretation of the insured's obligations is correct. Policies drafted for intended use in one province may not apply in other provinces. Experienced coverage counsel can assist policyholders with this. In this decision, as the policy did not specifically refer to the title of Newfoundland legislation, the insured was under no obligation to participate in an appraisal.

Footnotes

1 Interprint Systems v Co-operators General Insurance Company, 2024 NLSC 29.

2 Ibid at para 15.

3 Ibid at paras 50-52.

4 Ibid at para 49.

5 Ibid at para 62.

6 Ibid at paras 67 and 68.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Newfoundland Court Finds Insured Under No Obligation To Engage In Appraisal

Canada Insurance

Contributor

Theall Group LLP is a commercial litigation firm committed to providing our clients with superior legal representation in complex disputes. We have broad experience at all levels of the Ontario and Federal courts. Our practice includes acting for large multi-nationals and governments, with practice concentrations in the commercial insurance,  product liability, risk management, contractual disputes, class actions, and arbitration. We act exclusively for policy holders and brokers with respect to insurance coverage.
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