2019 QCCQ 809, 2019 QCCQ 809

Gurnagual c.

Azga Service Canada Inc. (Allianz Global Assistance) 2019 QCCQ 809 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-700221-163 DATE: January 31st, 2019 ______________________________________________________________________ BY THE HONORABLE CAtherine Pilon, J.C.Q. ______________________________________________________________________ DIRAN GURNAGUAL Plaintiff v. azga service canada inc. doing business under the name allianz global assistance -and- TD HOME AND AUTO INSURANCE COMPANY Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Diran Gurnagual is claiming $4,204.75 from Azga Service Canada Inc. (“Azga”) and TD Home and Auto Insurance Company (“TD”) which refused to compensate him for the theft of various items in his car.

Azga and TD denied the claim alleging the absence of a police report. They also question the existence of a theft. Context [ 2 ] Mr. Gurnagual owns a luxury car which he stores for the winter. [ 3 ] In December 2015, he needed to attend an event in Ottawa and consequently rented a car on December 4, 2015. He went shopping that afternoon in downtown Montreal at a number of high end stores to purchase clothing and Christmas presents. He spent a total of $4,204.75, purchased with his TD credit card. [ 4 ] Mr. Gurnagual put his purchases in the trunk of his car and drove to another area to go out for dinner.

When he returned to his car, a window had been broken and all his purchases were gone, the thieves having accessed the trunk from the inside. He called the police to report the theft, and was informed that in the absence of any physical injury they would not come to witness the damages to the car. They advised him to report the theft to his insurance company. Since he had an insurance policy with TD through his credit card, he contacted Azga, its claim manager, as indicated in his insurance booklet, to report the incident [ 5 ] Mr.

Gurnagual provided the receipts for his purchases and filled out TD’s required claim form. Although the form referred to a police report incident number which he had left blank, TD did not advise him to obtain a report, either in person or on-line. [ 6 ] TD accepted to cover the cost of the window repair, but refused to compensate Mr. Gurnagual for the stolen goods. [ 7 ] After almost four months without any progress notwithstanding several inquiries by Mr. Gurnagual about the status of his claim, he sent a demand letter to Azga on March 21, 2016. On May 4, 2016, Azga wrote on behalf of TD denying the claim.

It stated that Mr. Gurnagual had not provided sufficient proof of loss and had not filled out a police report. Analysis [ 8 ] TD first claimed, in its response to the demand letter, that no police report had been provided. The insurance policy, at page 38, indicates that TD may require a police report. However, it never informed Mr. Gurnagual that such a report was required, and it cannot blame him for not having provided it.

[ 9 ] In its defense, TD additionally relied on a clause in its insurance policy which excludes coverage for abuse or fraud and mysterious disappearance. It questioned Mr. Gurnagual’s rental of a car without even checking with him the reason for the rental, despite the fact that he had proof of storage of his own car. TD questioned both the location of the rental agency and of the car at the time of the theft, but it never sought answers although Mr. Gurnagual was in a position to provide clear explanations at trial.

These explanations could easily have been provided to TD or Azga in the course of their investigation of the claim had they bothered to verify. [ 10 ] As well, TD claimed the items, being luxury goods, were unusual for Christmas presents, without verifying with Mr. Gurnagual and without any basis for such a suspicion. The evidence rather established that Mr. Gurnagual usually spent such amounts at Christmas time. [ 11 ] In light of all the evidence, the Court concludes that there was indeed a theft, which did not in any way implicate Mr. Gurnagual. The Court considers the actions of TD and Azga unprofessional.

They failed to verify their suspicions, and without any basis refused a valid claim. They were also incoherent in accepting coverage for the broken window, while denying it for the stolen property, if they truly suspected a fraud or the existence a mysterious disappearance. [ 12 ] There is no reason for TD’s refusal to compensate Mr. Gurnagual for his loss, which he has established to the satisfaction of the Court at $4,204.75. [ 13 ] Given that TD is the insurer pursuant to the insurance policy, it is responsible for payment of the indemnity.

The claim against Azga will be dismissed since it was not a party to the policy, but without costs given the circumstances of the case and its poor management of the claim. FOR THESE REASONS, THE COURT: GRANTS the demand of the Plaintiff against the Defendant TD Home and Auto Insurance Company; CONDEMNS the Defendant TD Home and Auto Insurance Company to pay the Plaintiff $4,204.75 with interest at the legal rate and the additional indemnity provided by

article 1619 of the Civil Code of Quebec since March 21, 2016; CONDEMNS the Defendant TD Home and Auto Insurance Company to pay the Plaintiff the court costs of $100; DISMISSES without court costs the demand of the Plaintiff against the Defendant Azga Service Canada Inc. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: January 8, 2019