Johnson v Aviva Insurance Company of Canada, 2014 ABQB 688

Court of Queen ’ s Bench of Alberta Citation: Johnson v Aviva Insurance Company of Canada, 2014 ABQB 688 Date: 20141112 Docket: 1401 00467 Registry: Calgary Between: Jeffrey Johnson, also Known as Jeff Johnson Applicant - and - Aviva Insurance Company of Canada Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice G.A.

Campbell _______________________________________________________ I The Application [ 1 ] Jeffrey Johnson (the Applicant) is the Defendant in an action commenced by Krista Semenchuk (the Plaintiff) in the Alberta Court of Queen’s Bench (the Action) seeking damages against him for her personal injuries. The Plaintiff alleges that her injuries were caused by the conduct of the Applicant during an April 2009 floor hockey game organized by the Calgary Sport & Social Club (CSSC) in which she and the Applicant were participants.

[ 2 ] At the time of the incident, the CSSC was insured by Respondent Aviva Insurance Company of Canada (Aviva).

The policy coverage extended to any member of the CSSC participating in a sanctioned sporting event, subject to certain exclusions. [ 3 ] The Applicant seeks a Declaration that Aviva is obliged to defend him in the Action and that Aviva must pay a pro rata share of the expenses that the Applicant has incurred to defend himself in the Action from 20 July 2011 until the date Aviva begins defending the Action. [ 4 ] Aviva opposes the Applicant’s application on the basis that the Plaintiff’s allegations in the Action relate to intentional conduct and thus are excluded from coverage under the applicable policy of insurance.

The Applicant contends that the Plaintiff also alleged negligence, which is not excluded under the relevant policy, thus triggering Aviva’s duty to defend. II Background Facts [ 5 ] In April 2011 the Plaintiff commenced the Action by filing a Statement of Claim.

The Statement of Claim in paragraph 8 alleged that: as [the Plaintiff] attempted to retrieve the ball from a corner, [the Applicant] committed an assault and battery against her by intentionally, viciously and forcibly tripping and then pushing her down (the “Assault and Battery”).[sic], causing a severe injury to her left leg (the “Injury”). [ 6 ] In August 2011 the Applicant filed a Statement of Defence. [ 7 ] On 7 August 2012, the Plaintiff filed an Amended Statement of Claim that changed the allegation in paragraph 8 to state that: as [the Plaintiff] attempted to retrieve the ball from a corner, [the Applicant] intentionally, viciously and forcibly tripped and then pushed her down (the “Incident”), causing a severe injury to her left leg (the “Injury”). [ 8 ] The Amended Statement of Claim added the following particulars of the allegations in paragraphs 8A and 8B: 8A.

The Incident was directly caused by the [Applicant’s] assault and battery, the particulars of which include: (

a) pursuing [the Plaintiff] into the corner at high speed; (

b) Intentionally colliding with [the Plaintiff]; (

c) Intentionally pushing [the Plaintiff] down; (

d) Intentionally shoving [the Plaintiff] away from the ball; and (

e) Such further and other particulars as may be proven at the Trial of this Action. 8B. In the alternative, the Incident was directly caused by [the Applicant’s] negligence, the particulars of which include: (

a) Failing to abide by the Floor Hockey League Rules of the Club; (

b) Failing to observe the non-contact nature of the Club; (

c) Failing to maintain a proper or any lookout during the Second Game; (

d) Recklessly colliding with, pushing and/or shoving [the Plaintiff]; and (

e) Such further and other particulars as may be proven at the Trial of this Action. [ 9 ] During the period of the incident, CSSC was insured by Aviva under a policy of insurance that included Commercial General Liability Coverages (the Policy). The Policy extended coverage to, inter alia, any member of the CSSC who was participating in or training for a sanctioned sporting or social event. [ 10 ] Aviva admits that the Applicant is an insured under the Policy and that the allegations in the Statement of Claim and the Amended Statement of Claim engage the Policy’s Insuring Agreement unless excluded. [ 11 ] The Policy excluded coverage for certain types of actions, including Exclusion 2(

a) which states: 2. Exclusions This insurance does not apply to: a. “Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property. [ 12 ] Aviva advised the Applicant that it would not defend him or indemnify him in the Action, relying on the Policy’s terms and

Exclusion 2(a). III The Issue [13] The sole issue to decide is whether Exclusion 2(

a) is applicable thus relieving Aviva of any duty to defend the Applicant inthe Action. IV Applicable Law [14] The parties agree that the following legal principles are applicable in determining whether an insurer has a duty to defend aparticular action. [15] An insurer’s duty to defend is unquestionably broader than the duty to indemnify. In determining whether there is a duty todefend, the pleadings govern. That is, an insurer will have a duty to defend if, on a reasonable reading of pleadings, a claim within thecoverage can be inferred: Nichols v American Home Assurance Co, (SCC), [1990] 1 SCR 801 [Nichols].

JusticeMcLachlin explained the principle as follows (at page 812): the duty to defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may beargued to fall under the policy.

That said, the widest latitude should be given to the allegations in the pleadings in determining whetherthey raise a claim within the policy. [16] To determine whether a claim within coverage can be inferred, the Court must examine the facts alleged in the pleadings ofthe underlying action: Progressive Homes Ltd v Lombard General Insurance Co of Canada, 2010 SCC 33 at para 19 [Progressive].Justice Rothstein set out the following principles: An insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer toindemnify the insured for the claim.

It is irrelevant whether the allegations in the pleadings can be proven in evidence. That is to say, theduty to defend is not dependent on the insured actually being liable and the insurer actually being required to indemnify. What isrequired is the mere possibility that a claim falls within the insurance policy.

Where it is clear that the claim falls outside the policy,either because it does not come within the initial grant of coverage or is excluded by an exclusion clause, there will be no duty to defend.[citations omitted] [17] Where, as here, there is pleaded both an intentional tort, which is excluded from coverage, and a non-intentional tort, which iscovered, the Court will undertake an analysis of whether the claim for negligence is derivative of the intentional tort: Non-MarineUnderwriters, Lloyd’s of London v Scalera, 2000 SCC 24 , [2000] 1 SCR 551 [Scalera].

The Supreme Court explained (at para85): a court construing an insurer’s duty to defend must decide whether the harm allegedly inflicted by the negligent conduct is derivative ofthat caused by the intentional conduct. In this context, a claim for negligence will not be derivative if the underlying elements of thenegligence and of the intentional tort are sufficiently disparate to render the two claims unrelated.

If both the negligence and intentionaltort claims arise from the same actions and cause the same harm, the negligence claim is derivative, and it will be subsumed into theintentional tort for the purposes of the exclusion clause analysis. If, on the other hand, neither claim is derivative, the claim of negligencewill survive and the duty to defend will apply . . .

A claim should only be treated as “derivative”, for the purposes of this analysis, if it isan ostensibly separate claim which nonetheless is clearly inseparable from a claim of intentional tort. [emphasis added] [18] In determining whether a negligence claim is derivative of an intentional tort, Justice Verville of this Court consideredwhether the two claims “arise from the same actions and cause the same harm”, Rocky Mountain House (Town) v Alberta MunicipalInsurance Exchange, 2007 ABQB 548 at para 69 (internal quotations omitted), adopting the approach taken in the British Columbiacase Unrau v Canadian Northern Shield Insurance Co, 2004 BCCA 585 (BCCA).

Justice Verville stated (at para 69): the question asked was whether, if you take away the facts which set out the factual basis for the intentional tort, there are remainingfacts sufficient to support the claim in negligence. If so, the two claims are independent of each other. [19] Only in some cases are negligence claims derivative of an intentional tort. For example, the underlying claim in all actionsalleging sexual assault and battery is non-consensual sexual activity. Thus, if the claim based on intentional tort fails, so does the claimin negligence. This may not be the case for other tortious actions.

As the Court noted in Scalera, not all intentional touching arepresumably instances of battery (at para 104): A more obvious example is certain sports, where physical contact is expected and even encouraged. What these examples show is that, inall cases, one must look to the context to understand the role of consent. [20] The fundamental principles for determining the insurer’s duty to defend were concisely summarized by Hoy J.A., in theOntario Court of Appeal decision, Tedford v TD Insurance Meloche Monnex, 2012 ONCA 429 [Tedford], as follows (at para 14):

(1) The insurer has a duty to defend if the pleadings filed against the insured allege facts which, if true, would require the insurer toindemnify the insured: Monenco Limited v. Commonwealth Insurance Company, 2001 SCC 49, [2001] 2 S.C.R. 699, at para. 28.

(2) If there is any possibility that the claim falls within the liability coverage, the insurer must defend: [Nichols], at p. 810.

(3) The court must look beyond the legal labels used by the plaintiff to ascertain the “substance” and “true nature” of the claims. It must

determine whether the factual allegations, if true, could possibly support the plaintiff’s legal claims: Monenco , at paras. 34-35; Scalera , at para. 79 .

(4) The court should determine if any claims plead are entirely “derivative” in nature, within the meaning of that term as set out in Scalera . A derivative claim will not trigger a duty to defend.

(5) If the pleadings are not sufficiently precise to determine whether the claims would be covered by the policy, “the insurer’s obligation to defend will be triggered where, on a reasonable reading of the pleadings, a claim within coverage can be inferred”: Monenco , at para. 31.

(6) In determining whether the policy would cover the claim, the usual principles governing the construction of insurance contracts apply, namely, the contra proferentem rule and the principle that coverage clauses should be construed broadly and exclusion clauses narrowly: Monenco , at para. 31; Scalera , at para. 70 . As well, the desirability, where the policy is ambiguous, of giving effect to the reasonable expectations of the parties: Scalera , at para. 71 .

(7) Extrinsic evidence that has been explicitly referred to in the pleadings may be considered to determine the substance and true nature of the allegations: Monenco, at para. 36; see 1540039 Ontario Ltd v Farmers’Mutual Insurance Company (Lindsay) 2012 ONCA 210 . V Parties’ Positions [ 21 ] The Applicant submits that the Court must give the pleadings wide latitude and not give regard to labels when determining the true nature of the claim.

The Applicant relies on Scalera. [ 22 ] The Applicant asserts that the substance of the Plaintiff’s claim is that she was injured when she was tripped or pushed by the Applicant during a floor hockey game while she and the Applicant were pursuing a ball into a corner at high speed. The Applicant asserts that this conduct could be either intentional or non-intentional and thus either

an act of negligence or

an act of assault and battery. That is, there is a possibility that the Applicant could be found liable in negligence but not liable for an intentional tort for the injuries sustained by the Plaintiff. The Applicant referred the Court to Economical Mutual Insurance Co v Lloyd’s Underwriters , 2014 BCSC 979 . [ 23 ] The Applicant further asserts that the allegations in paragraph 8B of the Statement of Claim are sufficiently disparate to render the intentional act and negligent act unrelated and thus render the negligent act not derivative of the claim of the intentional tort of assault and battery.

The Applicant points to the following particulars as supportive of a separate claim of negligence: (

a) An act of failing to abide by the Floor Hockey League Rules governing “Ball in the Corner” that require specified proximity be given to the leading player and no contact in certain circumstances, which can be accidental and not an intentional act to harm; (

b) An act of failing to maintain a proper or any lookout during the game, which can be accidental and not an intentional act to harm; and (

c) The act of recklessly colliding with, pushing or shoving, which can be accidental and not an intentional act to harm. B Respondent Aviva’s Position [ 24 ] Aviva asserts that Exclusion 2(

a) applies to the allegations in the Statement of Claim that the Applicant committed an assault and battery on the Plaintiff by “intentionally, viciously and forcibly tripping and then pushing her,” resulting in her injury. Aviva contends that the Statement of Claim only alleges that the Applicant committed a deliberate act by intentionally tripping and then pushing the Plaintiff. Thus, it follows that the allegations against the Applicant in the Statement of Claim are excluded by Exclusion 2(

a) from the Policy’s coverage. [ 25 ] Aviva asserts that the factual allegations were unchanged in the Amended Statement of Claim. There remains one allegation, namely: that the Applicant committed a deliberate act by intentionally tripping and then pushing the Plaintiff. According to Aviva, the question is whether on a broad reading of the Amended Statement of Claim, the allegations of negligence are derivative of the allegations of intentional conduct. As Aviva phrased it, the Court must assess “what are the facts which set out the factual basis for the intentional tort”.

Aviva states the factual basis to be: the Applicant “intentionally, viciously and forcibly tripped and then pushed” the Plaintiff, causing her injury. [ 26 ] Aviva submits that paragraph 8A of the Amended Statement of Claim set out the alleged particulars of the assault and battery − that the Applicant’s pursuit of the Plaintiff into the corner directly caused him to intentionally, viciously and forcibly trip and push her, which led to her injury. Thus, the gravamen of the allegation is still an unmistakeable intentional act.

Aviva submits that the allegations in paragraph 8A are excluded undeniably from coverage under the Policy. [ 27 ] Aviva contends that paragraph 8B of the Amended Statement of Claim must be put in context as it sets out the particulars of the alleged “negligence” that lead to the Applicant’s intentional conduct. If “the Incident” is removed, then it is alleged that the Applicant committed a number of acts but those acts did not cause the Plaintiff any harm. That is, the particulars identified are not alleged to have harmed the Plaintiff; it was the “the Incident” − an intentional act − that did.

[ 28 ] Aviva relies on Economical Mutual Insurance Co v Doherty , 2009 BCSC 959 , a case with similar circumstances to the case here. The Court in Doherty found there was no duty to defend in the context of an incident during a soccer game in which it was alleged that the defendant intentionally, maliciously and without provocation kicked the plaintiff in the head while he was lying on the ground in a vulnerable position.

The Court determined that while the Amended Statement of Claim claimed negligence in the particulars, which included an allegation of reckless conduct, it did not support a claim of negligence and on that basis found there was no duty to defend. VI Analysis [ 29 ] In determining whether Aviva has a duty to defend the Applicant in the Action, I must take the factual allegations as pleaded and then ask whether the Plaintiff’s legal claim of negligence can be supported by the factual allegations. That is, I am tasked with determining what is the true substantive nature of the claim made in the Action.

In so doing, I am to have no regard to the legal labels used by the Plaintiff in assessing if the allegations set out in the pleadings could possibly support a claim for indemnity. I am not to decide the merits of any of the Plaintiff’s claims in the Action. [ 30 ] I agree with Aviva that there was no potential for coverage under the Policy in respect of the allegations set out in the Statement of Claim. The Statement of Claim alleged that the Applicant had committed an assault and battery by “intentionally, viciously and forcibly tripping and then pushing” the Plaintiff.

The Statement of Claim only alleged an intentional act and did not suggest a non- intentional act that would engage coverage. I so find. [ 31 ] I next deal with the Amended Statement of Claim. Paragraph 8 was significantly amended, notably with a claim for negligence now advanced. [ 32 ] The wording of paragraph 8 of the Amended of Statement of Claim is not ideal; indeed, paragraphs 8A and 8B are inconsistent and, when read together, ambiguous.

It is difficult to reconcile the allegation that “[the Applicant] intentionally, viciously and forcibly tripped and then pushed [the Plaintiff] down” with its associated particulars in paragraph 8B: “[f]ailing to maintain a proper or any lookout during the Second Game” and “[r]ecklessly colliding with, pushing and/or shoving [the Plaintiff].” [ 33 ] Where pleadings are not sufficiently precise to determine whether the claim would be covered by the policy, according to Monenco , “the insurer’s obligation to defend will be triggered where, on a reasonable reading of the pleadings, a claim within coverage can be inferred.” That is, any doubt as to whether the pleadings bring the incident under the Policy’s coverage is to be resolved in the insured’s favor. [ 34 ] In this case, if the facts underlying the intentional tort claim are removed, is there any basis for the claim of negligence?

In my view there is. When I give the widest latitude to a reading of the Amended of Statement of Claim and remove the legal labels, I find that the substance of the Plaintiff’s claim is that while playing a floor hockey game, she was injured when she was tripped and pushed by the Applicant. How the Plaintiff’s alleged injuries were sustained has not been established: whether by an intentional or negligent act? While the thrust of the claim is for intentional conduct, there is presented an alternative and independent claim that the Applicant acted negligently and without intent to harm.

I think it arguable that the pleadings give rise to two actionable torts involving different acts or conduct based on the Applicant’s state of mind – one being an intentional tort and the other a non-intentional tort. [ 35 ] In the result, I find that there is a mere possibility that at trial the claim for injuries based on the intentional tort could fail and the negligence claim succeed. As a negligence claim is available as a basis for the Applicant’s liability, the claim would not be excluded by the Policy. It is this possibility that gives rise to a determination that Aviva has a duty to defend.

VII Conclusion [ 36 ] In the result the Applicant is entitled to the two declarations sought. [ 37 ] First, Aviva must defend the Applicant against the Action. Second, Aviva must pay a pro rata share of the expenses of the Applicant incurred to defend himself in the Action from 7 August 2012 when the Amended Statement of Claim was filed with the Clerk of the Court and coverage under the Policy arose. [ 38 ] If required, the parties may speak to the matter of costs within 60 days of this decision. Heard on the 26 th day of September, 2014. Dated at the City of Calgary, Alberta this 12 th day of November, 2014.

G.A. Campbell J.C.Q.B.A. Appearances: David P. Wedge Parlee McLaws LLP for the Respondent Raymond S. Wong Field Law for the Applicant