The Ontario Court of Appeal addressed the issue of coverage between an automobile, boat and homeowner's policy in Axa Insurance v. Dominion.The insured was attaching a bungee cord to fasten down seat cushions on the boat which was on the trailer, attached to the car. The bungee cord let go, striking another individual in the eye.
At issue was which of three policies owed a duty to indemnify or a duty to defend.
In considering the auto policy, the court followed Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, wherein Major J. formulated a two‑part test:
"1. Did the accident result from the ordinary and well‑known activities to which automobiles are put?
2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?"
The Court answered yes to both questions and held the auto policy had the obligation to defend and indemnify.
The boat insurer conceded that there was coverage under the policy, but relied on the Other Insurance clause in its policy:
"If you have other insurance not insured with us which applies to a loss or claim … our policy will be considered excess insurance and we will not pay any loss or claim until the amount of such other insurance is used up."
The Court held that the boat insurer had no obligation to defend or indemnify, until the underlying auto policy limits were used up.
The homeowner's policy had an exclusion for "damage arising from the ownership, use or operation of any motorized vehicle, trailer or watercraft ….". As such, it had no obligation to defend or indemnify.
10:14:06 PM 
| 
