Estate litigation occasionally involves the interpretation of coverage under a policy of insurance.
The general principles of interpreting insurance policies was discussed in Co-operators General Insurance Company v. Kane, 2017 BCSC 1720, as follows:
- a) the general purpose of insurance is to protect an insured against losses arising from unforeseen and accidental actions: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 at paras. 68-69;
- b) it is necessary to interpret insurance contracts as they would be understood by the average person applying for insurance, and not as they might be perceived by persons versed in the niceties of insurance law: National Bank of Greece v. Katsikonouris,  2 S.C.R. 1029 at 1043;
- c) courts should interpret a contract of insurance as a whole: Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 SCC 33 at para. 22, citing Scaleraat para. 71;
- d) as contracts of adhesion, courts should prefer interpretations that are consistent with the reasonable expectations of the parties, and avoid interpretations that would give rise to an unrealistic result or that which would not have been in their contemplation at the time the policy was concluded: Progressive Homesat para. 23; Scaleraat para. 71; and
- e) as contracts of adhesion, where there is an ambiguity which the rules of construction fail to resolve, courts will construe the policy contra proferentemagainst the insurer. A corollary of the contra proferentemrule is that coverage provisions are interpreted broadly, and exclusion clauses narrowly: Progressive Homes at para. 24; Scalera at para. 70.
These general interpretation principles apply equally to the duty to defend and exclusion clauses: Derksen v. 539938 Ontario Ltd., 2001 SCC 72 at para. 49.
Other general principles that apply in relation to the duty to defend and exclusion clauses are:
- a) an insurer is only required to defend a claim where the facts alleged in the pleadings, if proven, would require the insurer to indemnify the insured (i.e. the “pleadings rule”): Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49 at para. 28; Progressive Homesat para. 19; Lombard General Insurance Company of Canada v. 328354 B.C. Ltd., 2012 BCSC 431 at para. 21; Canadian Northern Shield Insurance Company v. Intact Insurance Company,2015 BCSC 767 at para. 18;
- b) all that is necessary, in order to trigger the duty to defend, is the mere possibility that a claim falls within coverage under the insurance policy based on a review of the pleadings: Monencoat paras. 29-30; Progressive Homesat para. 19; Lombard at para. 23; Johnson v. Aviva Insurance Company of Canada, 2014 ABQB 688 at paras. 33-35;
- c) where pleadings are not framed with sufficient precision to determine whether claims are covered by the policy, the duty to defend will be triggered where, on a reasonable reading of the pleadings, coverage can be inferred: Monencoat para. 31;
- d) “the widest latitude should be given to the allegations in the pleadings in determining whether they raise a claim within the policy”: Scaleraat para. 75, citing Nichols v. American Home Assurance Co.,  1 S.C.R. 801. This is consistent with resolving any ambiguity in favour of the insured: Monencoat paras. 31-32; Lombard at para. 24; Johnson at para. 33.
This interpretation exercise of the Policy concerns, to a large degree, the scope of Co-operators’ duty to defend the various causes of action raised in the Complaint. In Lombard, Justice Butler discussed the extent of an insurer’s duty to defend where numerous causes of action are alleged, some of which may be covered under the insurance coverage and some of which may not, as follows:
Where the pleadings allege numerous claims against an insured, some of which are covered and some are not, it is axiomatic that an insurer’s prima facie duty to defend arises only in respect of the claims which, if proved at trial, would trigger its duty to indemnify. However, the extent of the insurer’s responsibility to contribute to the costs of defending the action is a separate question that cannot always be determined according to the scope of its prima facie obligation.
It is well settled that where it is possible to distinguish between claims falling within and outside the policy coverage, the extent of an insurer’s defence obligation can be limited accordingly: Continental Insurance Co. v. Dia Met Minerals Ltd. (1996), 77 B.C.A.C. 251. An insurer has no duty to defend claims which clearly fall outside the grant of coverage: Progressive Homes at para. 19.
On these principles, the extent of an insurer’s defence obligation in a case involving a mix of covered and non-covered claims will depend primarily on the precision of the allegations in the pleadings and the operative language in the coverage provisions of the policy. In this respect, it is worth recalling that on a duty to defend application, any uncertainty is resolved in the insured’s favour.
Accordingly, in light of the various Causes of Action alleged in the Complaint, the governing principle here is that, unless all occurrences which potentially caused or contributed to the loss or damage are clearly and unambiguously excluded, coverage for the duty to defend will not be ousted. If there are different causes of action or theories of recovery, one of which is covered under the Policy, Co-operators is bound to defend those causes of action which, if proved, would be within the coverage: Progressive Homes at para. 54; Derksen at paras. 55-56, 67; Hartup v. BCAA Insurance Corp., 2002 BCSC 972 at para. 9; Miller v. Grain Insurance and Guarantee Co., 2005 SKQB 546 at paras. 15-18.