Jane Ritz - v. -, 2016 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 005 Date: January 13, 2016 File: SC#513 of 2015 Location: Saskatoon _____________________________________________________________________________ Between: Jane Ritz - and - The Wawanesa Mutual Insurance Company Self For the Plaintiff C. Kelsey O ’Brien For the Defendant _____________________________________________________________________________ JUDGMENT V.L.

MONAR ENWEANI , J _____________________________________________________________________________ Introduction [ 1 ] This matter arises out of a dispute between the insured plaintiff, Jane Ritz (“the plaintiff”) and the defendant insurer, Wawanesa Insurance Company (“the defendant”), under a personal insurance policy (“the insurance policy”).

[ 2 ] On October 2, 2013 there was a break-in at the plaintiff’s residence. The residence suffered damage and many items were stolen, including the plaintiff’s jewelry and her mother’s jewelry. The plaintiff is the named insured under the insurance policy. However, the policy also provides coverage for personal property of the dependant parent of a named insured while living in a nursing home. The plaintiff’s mother is dependant on the plaintiff and she is living in a nursing home. [ 3 ] As a result of the break-in, the plaintiff made a claim under the insurance policy.

In response, the Wawanesa paid the plaintiff a sum slightly in excess of $50,000.00. Of this sum, $10,000.00 related to stolen jewelry. [ 4 ] Subsequent to receiving this payment, the plaintiff asked the defendant for payment of an additional $10,000.00 for stolen jewelry belonging to her mother. This request was refused by the defendant on the basis that the insurance policy contained a special limit of insurance respecting jewelry, limiting coverage to the amount of $10,000.00.

The plaintiff now brings this action against the defendant seeking judgment in the amount of $10,000.00 for stolen jewelry belonging to her mother. Issue This case turns on the

interpretation of the insurance policy. The issue is whether the plaintiff is entitled to recover, under the insurance policy, an additional $10,000.00 for stolen jewelry belonging to her dependant mother. The Insurance Policy [ 5 ] The insurance policy is organized into certain section.

Section 1 (Property Coverages) provides for coverage of personal property.

Section I provides in part: “personal property of an “insured” or parent of an “insured” who is dependant on the “named insured” or his or her spouse for support and maintenance, while residing in a nursing home, is covered up to $10,000.00”.

Section 1 also sets out special limits of insurance as follows: SPECIAL LIMITS OF INSURANCE “We” insure: (1) books, tools and instruments pertaining to a “business”, but only while on “your” “premises”, and only for an amount up to $5,000. Other property pertaining to a “business”, including samples and goods held for sale, is not insured; (2) securities up to $5,000 in all; (3) money including “cash cards”, or bullion, up to $500 in all; (4) watercraft, their furnishings, equipment, accessories and motors up to $3,000 in all.

These are insured only for “specified perils” and theft, including damage caused by attempted theft; (5) lawn mowers, snow blowers, garden tractors, or other motorized garden equipment, and motorized golf carts, up to $10,000 in all; (6) spare automobile parts up to $1,000 in all; The following SPECIAL LIMITS OF INSURANCE do not apply to any claim caused by any of the “specified perils”. “We” insure:

(7) jewelry, watches, gems, fur garments and garments trimmed with fur up to $6,000 in all; (8) numismatic property (such as coin collections) up to $500 in all; (9) manuscripts, stamps and philatelic property (such as stamp collections) up to $1,500 in all; (10) up to $1,000 for each bicycle, including its equipment and accessories. [ 6 ] “Specified perils” is defined in the

definitions

section of the insurance policy. Loss or damage caused by theft is not included in the definition of “specified perils”. The term “occurrence” is also defined. As well,

Section 1 (Conditions) of the insurance policy indicates that the defendant will pay for insured loss or damage up to the applicable amounts of insurance for any loss or damage arising out of one occurrence. Evidence [ 7 ] The plaintiff testified on her own behalf. The defendant called Susan Kuzek as a witness. Ms. Kuzek is a senior telephone adjuster for the defendant. [ 8 ] The plaintiff testified respecting the break-in at her home on October 2, 2013. The plaintiff’s mother resides in a nursing home. The plaintiff had her mother’s jewelry in her own residence.

The plaintiff submitted a claim to the defendant, and was paid the sum of $10,000.00 for stolen jewelry. The plaintiff testified that she had a significant amount of jewelry but that it was mostly costume jewelry. Her mother’s jewelry “was real”. She said that she wondered why she couldn’t collect $10,000.00 for her own jewelry and for her mother’s jewelry given that the insurance policy provides coverage for personal property belonging to her mother. The plaintiff testified that after receiving payment she went back to her broker Galon Insurance.

She requested an additional payment from the defendant, but her request was denied. She stated that she received $10,000.00 from the defendant for her jewelry and that her mother’s jewelry far exceeded the value of $10,000.00. She obtained various estimates for some of the items of jewelry. Estimates of the retail price of jewelry obtained from GMG, People’s and Birks (Exhibit P-2) amounted to approximately $48,000.00. The plaintiff stated that if she had been told she had to have separate insurance for jewelry, she would have purchased more coverage.

She stated that if she had had more information, she would have acted differently. On cross-examination, the plaintiff readily acknowledged that she had received payment of the sum of $10,000.00 from the defendant for stolen jewelry. [ 9 ] Ms. Kuzak handled the plaintiff’s claim under the insurance policy. She testified that she provided the plaintiff with the sum of $6,000.00 in connection with jewelry stolen from her residence.

She indicated that she subsequently became aware that she had made an error, in that the special limit relating to jewelry had been increased from $6,000.00 to $10,000.00 on October 1, 2013. Therefore, she subsequently provided the plaintiff with a second cheque in the amount of $4,000.00 in respect of the stolen jewelry. When the plaintiff asked if she could recover an additional $10,000.00 for the jewelry belonging to her mother, Ms. Kuzak advised the plaintiff that her coverage limit had already been exhausted. Ms.

Kuzak also explained that because of the significant amount of jewelry that was lost, the defendant settled the jewelry claim on the basis of estimates only, applying depreciation at the rate of 50%. [ 10 ] Ms. Kuzak also testified that for an additional premium, a policy holder can upgrade their insurance coverage and purchase enhanced special limits. The declaration respecting the plaintiff’s insurance policy was filed with the court as Exhibit D-2. The declaration does not indicate that the plaintiff purchased any enhanced coverage with respect to jewelry.

Analysis [ 11 ] The plaintiff submits that she should receive an additional $10,000.00 in connection with her mother’s stolen jewelry on the basis that her mother’s property is separate from her own, and the insurance policy provides coverage for her mother’s personal property as she is a dependant parent of the plaintiff, the named insured. The defendant concedes that the insurance policy provides coverage for the plaintiff’s mother. However, the defendant submits that that coverage is subject to the special limits of insurance, which limit the amount of coverage available for certain types of property.

The limit in relation to jewelry is $10,000.00 in all. The defendant submits that the insurance policy is clear and unambiguous. Alternatively, if the insurance policy is ambiguous, the defendant submits that the special limits of insurance clause overrides the general clause respecting the general coverage of personal property of a dependant parent. Finally, the defendant argues that allowing the plaintiff’s claim would render the special limits of insurance meaningless.

[12] Having reviewed the insurance policy, and the decisions in Devries v Aviva Insurance Co, 2012 ABPC 357 (“Devries”) andCanadian Northern Shield Insurance Co v Booth, (BCSC) (“Canadian Northern”), I find the plaintiff’s claim mustfail for a number of reasons. [13] Firstly, the Supreme Court of Canada in Progressive Homes Ltd v Lombard General Insurance Co of Canada, 2010 SCC 33(“Progressive Homes”), made it clear that when applying principles of contractual

interpretation to insurance policies, the “primaryinterpretative principle is that when the language of the policy is unambiguous, the Court should give effect to clear language, readingthe contract as a whole.” I find there is no ambiguity in the language of the insurance policy in question. [14] A Special Limits of Insurance clause contained in the insurance policy clearly limits the amount of coverage available forspecific types of property, including jewelry. In particular, the defendant insured “jewelry, watches, gems, fur garments, and garmentstrimmed with fur up to $6,000 in all”.

The $6,000.00 coverage limit was increased to $10,000.00 on October 1, 2013. [15] A Special Limits of Insurance clause indicates that the special limits of insurance do not apply to any claim caused by any ofthe “specified perils”. As noted earlier, Specified Perils is a defined term in the insurance policy. Theft is not a specified peril. Therefore, the special limits of insurance do apply in the instant case to the plaintiff’s claim. In other words, in order to fully understandthe special limits of insurance clause, the plaintiff would also have to refer to the definition

section to see if theft is defined as a specifiedperil. While a careful reading of the Special Limits of Insurance clause is required, I do not find that it is ambiguous. A similarconclusion was reached in the case of Devries, where the Provincial Court of Alberta considered similar wording in an insurance policyand a coverage limit with respect to jewelry claims. There, the Court held as follows: [27] In order to interpret the Insurance Policy, the Plaintiff, as insured, would have to first read the Limitation Clause then refer to theDefinition

Section to see if theft is defined as a Specified Peril. The fact that the Plaintiff would have to refer to two different sections ofthe policy may be some difficulty in

interpretation, but once again, this did not constitute an ambiguity. [16] I find that the Special Limits of Insurance clause contained in the Insurance Policy is applicable in the circumstances. Inparticular, coverage for jewelry lost as a result of theft was limited to $10,000.00. The Special Limits of Insurance applied regardless ofwho owned the property, whether it was the plaintiff herself or her mother. In other words, there was a $10,000.00 to coverage availablefor loss arising out of any one occurrence. Here, there was one occurrence - namely, the theft which occurred on October 2, 2013. [17] The plaintiff’s

interpretation of the Insurance Policy is untenable. To give it effect would be to render meaningless the speciallimits of insurance, relating to jewelry, in the insurance policy. [18] While it appears clear that the plaintiff could have purchased enhanced coverage for jewelry, she did not do so. She submittedan argument she was not informed completely through her broker when she purchased insurance. It is unfortunate that the plaintiff didnot understand the limitations on coverage that applied to jewelry and/or that she could purchase enhanced coverage.

However, this isnot a basis in law for an action against the defendant. The defendant and the plaintiff’s insurance broker are not one in the same; rather,they are separate legal entities with distinct responsibilities and obligations. Conclusion [19] The Special Limits Provision in relation to jewelry restricted the plaintiff’s claim for jewelry under the Insurance Policy to thesum of $10,000.00. The plaintiff has already received payment of the sum of $10,000.00 for jewelry stolen from her residence duringthe break-in occurring on October 2, 2013.

Accordingly, the coverage limitation with respect to jewelry having already been exhausted,the plaintiff’s claim for an additional $10,000.00 in respect of jewelry is dismissed. [20] I make no award as to costs.

______________________ V.L. Monar Enweani, J