Kim Robson v. Garnet Robson, 2016 SKPC 141

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 141 Date: October 20, 2016 File: 37-15 Location: Moose Jaw _____________________________________________________________________________ Between: Kim Robson and Garnet Robson -and- Percy Hunt Travel Group Inc. Operating under the firm name and style of Marlin Travel -and- Manulife Financial Self Represented, Kim Robson and Garnet Robson For the Plaintiffs Mr. Terry Kaszas For the Defendant, Marlin Travel Ms.

Sheri Epp For the Defendant, Manulife Financial _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________

Background [ 1 ] The plaintiffs purchased air travel and an all inclusive stay in Punta Cana from Transat Holidays. The purchase was made through the defendant, Marlin Travel. At the same time, they purchased travel insurance, including cancellation insurance. The insurance was purchased through an agent employed at Marlin Travel, and the policy was underwritten by the defendant, Manulife Financial. The plaintiffs attempted to cancel the trip but were not able to do so. The plaintiff, Kim Robson and her daughter then took the trip.

The plaintiffs brought this action alleging alternatively that Manulife breached the contract of insurance, or that an agent employed by Marlin Travel was negligent and misrepresented the terms of insurance coverage. The Evidence [ 2 ] The Plaintiff Kim Robson testified that she contacted Marlin Travel approximately January 11, 2015. On January 13, 2015, she and her husband, Garnet Robson attended the Marlin Travel office, and advised they were interested in going to Punta Cana. They also advised that they had a sick friend, suffering from brain cancer. According to Ms.

Robson, she advised that because of this, they needed travel insurance. She testified that Melissa, the agent from Marlin, advised that they would be covered up until the day that they left. Also, after leaving, they would have trip interruption insurance. They purchased the package and insurance and left. The travel itinerary called for them to travel from Regina Airport to Punta Cana on February 12, 2015, and to travel back to Regina Airport on February 26 and 27, 2015. [ 3 ] Ms.

Robson testified that on February 6, 2015, she again attended at the Marlin Travel office and picked up the tickets and the Manulife Insurance booklet. [ 4 ] On February 7, 2015, they received a telephone call advising that their friend with brain cancer was not doing well. The plaintiff Garnet Robson immediately made arrangements to go to Alberta. [ 5 ] On February 9, Ms. Robson again went to Marlin Travel and spoke to a different agent. She asked to postpone their trip. She was advised that they couldn’t do that as it was too late to do so. Further, that they would only be covered for $500.00 each.

Perhaps, they might not even get $500.00, as this was a pre-existing condition. She inquired if she could change the names on the package, and was advised that they could not. Later, arrangements were made for her daughter to go instead of the plaintiff Garnet Robson. She was advised that it would cost approximately $700.00 to $800.00 extra, to make this change. [ 6 ] Ms. Robson testified that they went to a professional agency because they didn’t know about travel insurance.

They booked on the basis of the agent saying they were covered to the day they left. [ 7 ] The plaintiffs paid a total of $6971.50 for the vacation package and the travel insurance. In addition she paid $1508.02 to make the changes so that her daughter could go instead of Garnet Robson. She said she paid for a holiday for the two of them but didn’t get what she paid for and now wants to be reimbursed. She also testified that she wasn’t given the insurance policy booklet until sometime later.

She agreed it was relatively clear in the booklet, as to what the coverage was, but again indicated she got this book later. [ 8 ] Under cross-examination she said she was assuming they had 100% coverage for any reason. She didn’t understand that it was only 75% coverage. She agreed that she got a call from Marlin Travel one or two days prior to February 6, advising that the tickets were ready for pick up. She actually picked them up and received the insurance booklet on February 6. [ 9 ] She also agreed that her daughter only went on the trip for one week instead of two weeks.

She agreed that considerable changes were made for the flight arrangements for her daughter. This apparently caused some of the increase in the cost for her daughter to attend. [ 10 ] She also agreed that she did not make any formal claim under the insurance policy to Manulife. Further, that she had no direct communication with Manulife about this matter. [ 11 ] She agreed that on previous occasions she had expressly declined to get travel insurance. She denied that the concept of travel insurance was explained to her in detail at those times. [ 12 ] The plaintiff Garnet Robson also testified.

He testified that he wanted to be covered so that right up to the time he got on the plane, he had the right to turn around and not take the trip. That is why he booked travel insurance. He said that was their understanding. [ 13 ] Suzanne Ellis testified for the defendant Manulife. She is a senior claims specialist with Manulife. She produced copies of the policy. She stated that an individual was insured under this policy for up to $3500.00 per person for expenses incurred and lost because an insured had to cancel a trip. Under this policy, a friend getting sick wasn’t one of the risks covered.

She pointed out that cancellation can be made for a variety of reasons up until seven days prior to the trip. If cancelled before the seven day limitation, the coverage is 75% of the cost of the trip. From six days prior to the trip to 48 hours prior to the trip, the maximum coverage is $500.00 per person. She also pointed out that page 28 of the insurance booklet contains exclusion clauses. It states in part: This policy does not cover and no benefit is payable for any claim arising from; 1.

Your or your travel companions knowledge at time of booking or application for this insurance of any reason why the insured trip might be cancelled or abandoned.

She suggested this clause would preclude the plaintiffs from purchasing any insurance policy that would allow them to cancel as a result of their sick friend. Clearly they were aware of their friend’s condition at the time the trip and the insurance were purchased. [ 14 ] Ms. Ellis further testified that Manulife never received any formal claim from the Robson’s on this insurance policy. Further that when Garnet Robson cancelled and did not take the trip, his entire insurance premium of $245.00 was returned to him.

Lastly, she testified that as the trip was taken by Kim Robson and her daughter, that they would not have allowed or paid any claim. [ 15 ] In answering my questions, Ms. Ellis said that Manulife could structure a policy that provided 100% reimbursement or coverage for costs in the event of a trip cancellation. However, they have not done so and have no such policy. She said the premiums for such a policy would have to be very high.

I gather a corporate decision was made not to put together or offer such a policy because of the prohibitively high premiums. [ 16 ] Melissa Lawson testified for the defendant Marlin Travel. She testified that she has a Saskatchewan insurance licence and is employed by the defendant Marlin Travel. She testified that she was previously consulted by Ms. Kim Robson when Ms. Robson went to Las Vegas. At that time Ms. Robson asked if Garnet could book and cancel later. She advised that if they knew of a reason for the possible cancellation now, and then attempted to cancel later, that would not be covered. [ 17 ] Ms.

Lawson testified that she dealt with the plaintiffs on January 13, 2015. She utilized her standard script in dealing with insurance. This included that the plaintiffs could cancel for any reason up to seven days prior to departure, and this would result in coverage of 75% of the cost of the trip. [ 18 ] Ms. Lawson testified that she could recall no discussion of a friend suffering from a terminal illness. Had there been any such discussion, it would have brought about an entire change in their conversation.

She would have then advised that this is something that you are presently aware of, and so you cannot then cancel for this event. [ 19 ] Ms. Lawson testified that they would normally prepare the ticket package and the insurance booklet and have them ready for pick up approximately two to three weeks prior to departure. They would then call the individual to advise that the package was ready for pick up. Assuming this standard practice was followed, Ms. Robson should have been advised that the package was available between January 22 and January 29. However, Ms.

Robson did not pick up the packages until February 6, 2015. [ 20 ] Ms. Shannon Konihowski also testified for Marlin Travel. She testified that she had a number of conversations with the daughter of Kim Robson, Sarah. Sarah wanted to travel on different dates, and a number of changes to the airline reservations were required. These different reservations resulted in extra cost. She testified that she discussed all of these changes with Kim Robson, who approved of the changes. As a result, Ms. Robson was billed accordingly.

Analysis and Decision The Claim against Manulife Financial [ 21 ] I begin with the claim against Manulife because it can be fairly quickly and easily dealt with. Manulife had no direct dealings with the plaintiffs. An insurance agent acted on their behalf in entering the insurance contract with the plaintiffs. This insurance contract is before the court. I can see no term in this insurance contract that has been breached by Manulife. No claim was made under the policy to Manulife.

Manulife did not fail or refuse to pay the claimed amount or any amount that I can see was owing under this insurance policy. [ 22 ] The plaintiffs statement of claim says in part: Garnet and I would like to sue for the amount of the 30 th wedding anniversary holiday that we paid for but didn’t receive. [ 23 ] She testified to the same effect. However, she did not purchase the holiday package from Manulife Financial, and Manulife did not guarantee or ensure that she would receive that exact package.

By its insurance contract, Manulife agreed to reimburse for costs and expenses incurred for a trip, in the event that the plaintiffs had to cancel that trip. The plaintiffs did not cancel the trip, and in fact took a trip. They did not advance the claim for cost or expenses, and clearly Manulife committed no breach of the existing insurance policy. [ 24 ] The claim might be advanced by the plaintiffs against Manulife if their agent agreed to provide coverage, even if a specific policy did not provide for those exact terms of coverage. However, I cannot conclude that the agent, Ms.

Lawson, agreed to provide any coverage other than what was specifically provided in this insurance policy. Ms. Lawson knew the terms of the insurance policies, and knew that the maximum coverage under this policy, or any policy, was 75% of the cost involved. She knew of the exclusion clause respecting the pre-existing condition. I can think of no reason why Ms. Lawson would completely misrepresent the terms of insurance coverage, and undertake a coverage beyond what was contained in any of the insurance policies.

I conclude that she acted within the scope of her authority, and undertook coverage in accordance with the agreed upon policy. As mentioned above, I can see no breach of that policy. For all of these reasons, the claim against Manulife Financial must be dismissed. The Claim against Marlin Travel [ 25 ] As I understand the plaintiffs claim against Marlin Travel, it is in negligence. They allege that the defendant’s agents were negligent in not advising them properly regarding the insurance coverage, and not providing them with the insurance coverage that they wished.

[26] In Zheng v John Galon Insurance Services Limited and Saskatchewan Government Insurance, 2016 SKPC 90, his HonourJudge Demong dealt with the duty of care that an insurance broker or agent owes to its customers. At paragraph 29, Judge Demongstated: [29] There is no question that an insurance broker owes a duty of care to its customers. In the Cheecham v SaskatchewanGovernment Insurance, 2011 297 (SKQB) Sherman J, of the Saskatchewan Court of Queen’s Bench, at paragraph 16 of hisdecision cited Fine’s Flowers Ltd. v General Accident Assurance Co. of Canada (1977), (ON CA), (ONCA), 81 DLR (3rd) 139 (Ont Ca) as the seminal authority for the proposition that: (

a) An insurance agent has a duty to procure insurance consistent with the client’s request or to advise the client that he/shecannot obtain it; and (

b) Where a client gives no specific instructions but relies on the agent to see that he/she is protected, the agent has a duty touse reasonable care to understand the nature of the client’s business, assess the risks which ought to be insured against and to procure theinsurance coverage that is appropriate to the client’s needs. [27] For a number of reasons, I have determined that the claim against Marlin Travel cannot be maintained. Above I dealt with theconversations between Ms. Lawson and Ms. Robson.

I can think of no reason why she would deliberately misrepresent the extent ofinsurance coverage to the plaintiffs. I conclude she did not do so. I note that Manulife did not even have an insurance policy thatprovided the kind of coverage or the extent of the coverage that the plaintiffs sought. I conclude that the plaintiffs went to see Ms.Lawson and the defendant Marlin Travel, to obtain insurance coverage. Their belief or their understanding was that if they obtainedtravel insurance, they would be able to cancel it at any time and receive full coverage.

I conclude this was their understanding and belief,but that this was not induced or brought about by any representations from Ms. Lawson or Marlin Travel. As a result, I conclude thatthere was no negligence on the part of Marlin’s agents, and this claim must fail. [28] I am in part reinforced in this determination by the plaintiff’s misunderstandings of the insurance policy in bringing this action. As mentioned above, Ms. Robson claimed that they should be reimbursed for the 30th anniversary holiday that they paid for butdidn’t receive.

It is clear to me that she understood and believed the insurance policy would provide payment and reimbursement in theevent that the trip was not exactly as contracted for. The insurance policy did nothing of the sort. This too was a misunderstanding ofthe plaintiffs regarding the nature of the insurance coverage. [29] For these reasons, I conclude that there was no negligence on the part of Marlin Travel or its agencies and the claim againstMarlin Travel must also be dismissed. Dated of the City of Moose Jaw, the Province of Saskatchewan, this 20th day of October 2016. ______________________D. Kovatch