Four Seven Trucking Ltd. - v. -, 2014 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 020 Date: January 30, 2014 File: 66/2012 Location: Moose Jaw _____________________________________________________________________________ Between: Four Seven Trucking Ltd. - and - Saskatchewan Government Insurance Mr. Allan Wiens For the Plaintiff Mr. Steven Haichert For the Defendant _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ BACKGROUND [ 1 ] The plaintiff company owned a 2006 Freightliner truck.

It was properly licenced under The Automobile Accident Insurance Act , R.S.S. 1978, c.A-35. However, the plaintiff had no other policy of insurance with respect to this truck or his business. In July 2009, the truck was vandalized when individuals put dirt or sand in the fuel tank. A claim was made under

Part III of The Automobile Accident

Insurance Act, and in November 2012, SGI paid out an agreed upon sum to cover the cost of repairs. The plaintiff then commenced thisaction claiming damages for loss of business income when the truck was down for repairs. The plaintiff conceded that he had nobusiness interruption insurance under The Automobile Accident Insurance Act, and had no other insurance policy that provided businessinterruption insurance. Rather, the plaintiff claimed that the adjuster employed by the defendant was negligent in not processing theclaim and authorizing repairs quickly enough, and thus prolonging the downtime of the vehicle.

The plaintiff claimed damages for lossof business income while the truck was down for repairs. DECISION AND ANALYSIS [2] For the various reasons that I have set out below, I have determined that the plaintiff’s claim must be dismissed. [3] Under The Automobile Accident Insurance Act, there exists a statutory insurance contract between the plaintiff anddefendant.

When a claim is made by an insured, there is a heavy presumption that rights and obligations between the parties aredetermined under the contract, and not by the general law of negligence or some other general law that might be applicable to thepopulation at large. Under the insurance contract, the parties have agreed to and assumed certain rights and obligations. Presumably,they have addressed their minds to these questions, and specifically agreed to them.

It would not be appropriate and would inject a greatdeal of uncertainty into the area, if the parties could expand or restrict their rights or obligations by resorting to the law of negligence orsome other general principle of law. As a result, courts have repeatedly held that loss or damages are recoverable under an insurancepolicy if that loss or damage is specifically covered as an insurable loss under the terms of that policy. If it is not, then no recovery canbe made for that particular form of loss. See for example Gannon and Associates Ltd. v.

Advocate General Insurance Company ofCanada (1984), (MB KB), 32 Man. R. (2d) 1 (Q.B.) at para. 48, where the Court stated: The indemnity provided under an insurance policy imposes an obligation to pay an identifiable and ascertainable loss upon the happeningof a particular event. The policy contains no obligation to make payment beyond the loss as described in the policy. Even thoughrepudiation has occurred, the policy terms are not altered; it becomes the court’s task to assess the loss and enforce payment as if thepolicy were in effect.

If an insured could recover additional losses over and above the coverage stipulated in the policy arising out of hisimpecuniousty, it ought to be a term in the contract. If an additional allowance were made beyond the contractual terms, it would beequally logical to compensate for loss of business or other economic losses. I am not able to find that such an additional loss should beallowed. In effect, it would amend the terms of the insurance contract. [4] Similarly in British Columbia Buildings Corp. v. Reed Stenhouse Ltd. (1989), B.C.J. No. 391 and Terepocki v. InsuranceCorp. of British Columbia (1994), B.C.J.

No. 2048, the courts did not hold the insurers liable for the payment of interest duringreconstruction, as interest was not a loss within the terms of the policy document. [5] In this case, the statutory insurance contract, as set out in The Automobile Accident Insurance Act, provides coverage for thecost of repairs to the vehicle as a result of vandalism, but does not provide any insurance for losses or damages related to the interruptionof the plaintiff’s business affairs. The plaintiff could have purchased that kind of insurance coverage and had in place a policy documentthat provided for such coverage.

He did not. As a result, he cannot advance such a claim. [6] There are certain cases where an individual is allowed to claim under the terms of a contract and in tort. This is particularlythe case where an individual is guilty of an intentional tort, and that individual’s conduct or actions are completely beyond or outside theambit of the contract. For example, if an employer physically assaulted an employee, the employee might sue for wrongful terminationof the employment contract and assault. However, this is not one of those cases.

The plaintiff’s allegation is that the adjuster employedby the defendant did not process the claim quickly enough and was negligent in that regard. The adjusting of the claim is a matter dealtwith under the terms of the contract. As a result, there is no need to resort to the law of negligence to determine the defendant’sobligations or whether there is a breach of those obligations. [7] Moreover, even if I were to apply the law of negligence, I would conclude that there was no negligence upon the part of thedefendant and thus no liability pursuant to negligence.

The evidence establishes that the plaintiff’s vehicle was damaged on July 9,2012. On July 16, the plaintiff contacted the adjuster, Ms. Michelle Linder by telephone, and reported the damage or loss. Ms. Linderdid ask that no repairs be undertaken until an adjuster could look at the vehicle. She wanted to ensure that the vehicle was damaged byvandalism, in which case SGI would be liable for the loss or damage, and determine the extent of the loss or liability.

She advised theplaintiff that she would have an adjuster look at the vehicle and would then be in touch with the plaintiff once she had the adjuster’sreport. An adjuster did in fact look at the vehicle on July 19 and supplied a report. Ms. Linder did have some discussions thereafter with

the repair companies, and thought that repairs were proceeding. On August 3, the plaintiff was in touch with Ms. Linder, was informed that repairs could proceed, and thereafter directed that the repairs occur. The plaintiff’s complaint is that repairs were delayed from July 19 to August 3. It must be noted that, the repair company then required from August 3 until September 5 to complete repairs.

On September 5, the truck was released to the plaintiff and was again utilized in business operations. [ 8 ] The statutory conditions contained in s. 39 of The Automobile Accident Insurance Act have particular relevance to this matter.

Statutory condition 6 provides that the owner must give notice of the loss or damage to the insurer: ... and no repairs shall be undertaken or any physical evidence of the loss or damage removed without the written consent of the insurer, except such repairs as are immediately necessary for the protection of the vehicle from further loss or damage, until the insurer has had a reasonable time to make the inspection provided for in statutory condition 11. [ 9 ] Statutory condition 11(1) provides: The insurer shall be permitted, at all reasonable times, to inspect any motor vehicle designated in an owner’s certificate and its equipment. [ 10 ] Statutory condition 11(3) provides: The insurer may use any information collected pursuant to this

section to determine a claimant’s entitlement to benefits pursuant to this part. [ 11 ] These statutory conditions make it very clear that Ms. Linder, acting on behalf of the defendant corporation, was quite entitled, and indeed it was quite sound business practice, to ask that repairs be held up and to inspect this vehicle to determine if the damage was the result of vandalism and the extent of the insurer’s liability. [ 12 ] It must be noted that the plaintiff took one week, from July 9 to July 16, to report the loss and to make a claim to SGI.

SGI took two weeks and four days from July 16 until August 3 to have an adjuster go out and look at the vehicle, make a report, determine it was liable for the loss and undertake to make some payment for repairs. In my view, this is not an excessive length of time and I could not find the defendant liable in negligence for taking two weeks and four days to process and determine such a claim. [ 13 ] Even if I were to find the defendant negligent in these circumstances, I would still not award the plaintiff any damages.

At trial, the defendant allowed the plaintiff to prove its loss of income by filing a series of letters from individuals, each of whom attested that they wished to hire the plaintiff company to haul grain during the time period between July 19 and August 3, 2012. The plaintiff testified that the Canada Wheat Board monopoly on the marketing of Canadian grain ended on July 31, 2012. He said there was a high demand for his trucking services during this two week period, as many farmers were attempting to deliver grain to the elevators before the end of the crop year and the end of the CWB monopoly.

None of these letters indicate that these individuals wanted to hire the plaintiff to haul grain after August 3, 2012. [ 14 ] As mentioned above, the plaintiff and Ms. Linder spoke on August 3 at which time SGI accepted responsibility for the cost of repairs. A third party repair company then began the repairs, as is always the case. It took them until September 5, a period of approximately 33 days to conclude those repairs and release the vehicle to the plaintiff. The plaintiff says that SGI should have been in contact with him immediately and undertaken responsibility for paying for repairs as of July 19.

I conclude that it would have taken the repair shop the same time of approximately 33 days to conclude the repairs. As a result, even if SGI had undertaken responsibility for repairs on July 19, the earliest possible date, it would have taken until some time past August 15 to conclude the repairs and release the vehicle to the plaintiff. By this time the “window” for the movement of grain would have closed. Simply stated, even if I determined that SGI was negligent in this matter, I would still determine that their negligence did not cause the plaintiff to lose any income.

Rather, the plaintiff’s loss of income was due to the vandalism to the vehicle and the requisite repairs, and this situation was not affected by the conduct of SGI.

[ 15 ] For all of the above mentioned reasons, the plaintiff has failed to establish any liability on the part of the defendant and failed to establish any damages as a result of the conduct of the defendant. The plaintiff’s action is therefore dismissed. [ 16 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 30th day of January, 2014. D. Kovatch, J