Chris Lupastin - v. -, 2012 SKPC 118

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 118 Date: July 23, 2012 File: 100 of 2011 Location: Regina _____________________________________________________________________________ Between: Chris Lupastin - and - Saskatchewan Government Insurance Donald Harmon For the Plaintiff Stephen Haichert For the Defendant _____________________________________________________________________________ JUDGMENT M.

HINDS , J _____________________________________________________________________________ Introduction [ 1 ] The Plaintiff is a contractor and at all material times owned a 1995 Haulmark enclosed trailer (hereinafter referred to as the “trailer”). In the month of November 2009, the Plaintiff made arrangements to store the trailer on a farm located nearby the City of Regina owned by his friend Greg Wickenheiser. The Plaintiff insured the trailer with the Defendant, Saskatchewan Government Insurance (hereinafter referred to as “SGI”) by virtue of purchasing licence plates for the trailer.

[ 2 ] The Plaintiff left the trailer at Greg Wickenheiser’s farm in late November 2009. In early December 2009, the Plaintiff went on vacation to Mexico for three months. [ 3 ] Shortly after a huge winter storm Mr. Wickenheiser noticed that the trailer’s roof was damaged from snow load. Mr. Wickenheiser contacted Mr. Lupastin in Mexico and advised him of the damage to the trailer. Agreed Facts [paragraphs 4-6] [ 4 ] There was a blizzard/severe snow storm in the Regina area on or about January 23, 2010. [ 5 ] On January 25, 2010, Mr. Lupastin was in Mexico. Mr. Lupastin contacted Mr.

Lafrance at Hook Lafrance Insurance indicating that he thought his plates (insurance) had expired on his enclosed trailer. [ 6 ] On March 3, 2010, Mr. Lupastin contacted Matthew Lafrance at Hook Lafrance Insurance asking him when his plate insurance on his trailer expired. [ 7 ] The insurance coverage on the trailer expired on January 20, 2010. It was not in effect from January 20, 2010 until March 6, 2010. [ 8 ] Mr. Lupastin submitted an insurance claim respecting the trailer to SGI on or about March 3, 2010.

On March 30, 2010, SGI denied the claim on the basis that at the time of loss the trailer was not registered and hence was not insured. [ 9 ] I found that the Plaintiff did not establish that the date of loss/damage occurred while the trailer was insured by the Defendant. Hence I found no breach of the insurance contract. I also found that the Plaintiff did not establish that the Defendant acted in bad faith. Issues

A) Which of the parties has the onus of proof respecting the date of loss?

B) Has the Plaintiff established that the date of loss occurred while the trailer was insured by the Defendant?

C) Has the Plaintiff established that the Defendant breached the contract of insurance?

D) Has the Plaintiff established the Defendant acted in bad faith?

E) If bad faith has been established, what is the appropriate quantum of damages? The Evidence before the Court

Greg Wickenheiser [ 10 ] Greg Wickenheiser allowed his friend, Mr. Lupastin to store his trailer on his property at the end of November 2009. Mr. Lupastin’s 24.5 foot trailer was parked on the east side of Mr. Wickenheiser’s 42 foot motor home which is five feet higher than the trailer. The Wickenheiser property consists of 60 acres of land located approximately two miles south of the City of Regina. Mr. Wickenheiser testified that as his land is open and lacks a shelter belt he has problems in the winter with blowing snow which accumulates on his property. Large snowdrifts are common in the winter. [ 11 ] Mr.

Wickenheiser testified that in the winter of 2009 - 2010 there was a lot of snow on and around his property. He specifically recalled that there was enough snow that he able to use his snowmobile two months prior to Christmas day 2009. [ 12 ] Mr. Wickenheiser testified that one day after a huge snowfall he had been out snowmobiling. On his way home he noticed that there was a snowdrift from the top of his motor home over Mr. Lupastin’s trailer to the ground. He also noticed a sag in the roof of the trailer. Mr. Wickenheiser believed he texted Mr. Lupastin after he noticed the damage to the trailer. [ 13 ] Mr.

Wickenheiser is unable to determine the exact day he noticed the damage to the trailer. He testified that his “closest” recollection concerning the event is contained in his statement to SGI (Exhibit P-1, Tab 4) which reads in part as follows: Mr. Lupastin stored his trailer at my farm at the end of November 2009. He was leaving the Country (sic) for 3 months and needed me to keep an eye on it. I live on a farm 2 miles south of Regina down Fleet St. It was parked on the east side of my 42ft motor home, witch (sic) stands 5ft higher than his trailer.

I had noticed in early January 2010 that a drift went from the top of my motor home over his trailer to the ground. After going in the trailer, I noticed a sag in the roof. I text Mr. Lupastin in Mexico and brought to his attention what I found. He said he was back in February. [emphasis added] [ 14 ] However, while testifying in-chief Mr. Wickenheiser said that he was not confident that he noticed the trailer damage in January 2010. He added that the damage could have happened in December. He was not sure. [ 15 ] On cross-examination Mr.

Wickenheiser was unsure of the date that he prepared and signed his statement set out in P-1, Tab 4. He did acknowledge that he sent his statement to an SGI adjuster on January 12, 2010. [ 16 ] Greg Wickenheiser also acknowledged that he spoke to an SGI adjuster, Marshal Racette on March 29, 2010. This conversation was recorded by SGI , however the quality of the audio recording is poor with several unintelligible gaps. A transcript of the conversation was entered as Exhibit P-1, Tab 20. In the course of the audio recording the two men speak of damage to the trailer.

The date of January 23, 2010 emerges from the conversation on two occasions as follows: SGI . . . you noticed the damage to it or was it . . . Greg Yeah, yeah . . .it’s a . . . backed up against, like I had a big motor home and a 40 foot __________pusher and a 30 foot enclosed trailer. I didn’t . . . I didn’t realize this but apparently he’s supposed to make sure there’s no snow on his roof and stuff like that ____________ SGI Okay . . . Greg But ah . . . but apparently his roof caved in. So . . I mean, I didn’t, I didn’t really monitor it or do anything about it . . .

I just, you know, like I said . . . it’s already caved in ___________ whatever, however you want to call it . . . SGI Okay. You . . . you phoned him or whatever back in January or something to let him know about it or . . . Greg Yeah . . . when did we get that big snowfall . . . that huge snowfall.

SGI Yeah, that was about the 23 rd or something like that . Greg Yeah I had like 15 foot banks pushed up against everything down there. You know, just where the wind blew . . . up against all that stuff cause like I said I got my motor home and trailer ___________ and his is, I don’t know how long he is, plus all the __________ and everything else . . . I kinda had everything, kind of like in a row. SGI Yeah. Greg And he was on the outside row so I don’t know if that makes a difference. SGI How much snow was on the roof? Greg Well I am . . .

I don’t know, it snowed up against there and on top there ____________ probably a 15 foot bank, so I don’t know how much that was maybe 2-3 foot deep. SGI Okay. Did you shovel it off for him . . .or? Greg Yeah I kinda let it ah do its own thing there, know what I mean, so kinda let it _____________ I don’t know what I’m supposed to do with it. SGI Did uh . . . Okay, so then the snow never did get shovelled off, it was . . . just . . . it just sat on there? Greg Yeah I kinda let nature do it’s thing . . . that too much snow, like I was ___________ snow up there just to move around. SGI So, okay . . .

Greg __________ just to drive my Bobcat away was leaving like a 2-3 foot trail. Just on the flat ground _____________ walk around or should I phone and tell him but he was in Mexico. SGI Okay . . . um . . . and that was from the big blizzard on about the 23 rd or whatever? Greg I ’m not sure but I thinks that ’s it, yes . [emphasis added] Chris Lupastin [ 17 ] Chris Lupastin testified that he provided SGI with a sworn statement regarding the damage to his trailer on March 4, 2010 (Exhibit P-1, Tab 6). Mr. Lupastin’s statement clearly indicates that he received a text from Mr.

Wickenheiser on January 12, 2010 indicating his trailer had been damaged. Mr. Lupastin’s statement reads in part as follows: I had parked the trailer in the last week of November 2009 at my friend Greg Wickenheiser’s farm just off of Fleet St. I parked it on the east side of Greg’s 30 foot trailer and motor home so that . . . he could check on it. I received a text from Greg on January 12, 2010 while I was in Mexico and he said that he had shovelled off the roofs but that he thought mine was hurt. [emphasis added] [ 18 ] Mr.

Lupastin testified in-chief that his sworn statement of March 4, 2010 was prepared with the assistance of a female SGI claims adjuster and that “ . . . between me and her we chose January 12, 2010”. He added “The date was not a big deal”. Mr. Lupastin testified in-chief that he is now not entirely sure that Mr. Wickenheiser contacted him on January 12, 2010. [ 19 ] Mr. Lupastin was confident that he contacted his insurance agent, Hook Lafrance regarding his insurance coverage the same day as Mr. Wickenheiser contacted him about the damage to his trailer. [ 20 ] Mr.

Lupastin testified that his cell phone company maintains records of telephone calls received by and sent from his cell phone. Unfortunately Mr. Lupastin’s cell phone company does not maintain records of texts received by and sent from his cell phone. [ 21 ] Mr. Lupastin testified that he has reviewed a record of his cell phone calls to Mr. Wickenheiser and has determined that the

[21] Mr. Lupastin testified that he has reviewed a record of his cell phone calls to Mr. Wickenheiser and has determined that thegreatest amount of time spent on his cell phone to Mr. Wickenheiser occurred on December 9, 2009 (Exhibit P-1, Tab 1). In particularthe records reveal that he called Mr. Wickenheiser on Wednesday, December 9, 2009, at 13:01 for two minutes and again at 13:40 forfour minutes. Mr. Lupastin also noted that a review of his cell phone calls to his insurance agent reveals he placed a call to HookLafrance on December 9, 2009, at 16:34 for five minutes (Exhibit P-1, Tab 2). As a result, Mr.

Lupastin was of the view that December9, 2009 could have been the day Mr. Wickenheiser texted him regarding the damage to his trailer and hence this was the date of loss. Marshal Racette [22] Marshal Racette was the sole witness called by the Defendant, SGI. Mr. Racette has been an employee of SGI for 13 years. He is an Auto-Adjuster II at Regina Commercial Claims and is responsible for investigating claims to determine if there is insurancecoverage. [23] Mr. Racette was responsible for investigating Mr. Lupastin’s claim. Mr. Racette testified that Mr.

Lupastin first contactedSGI on March 3, 2010, indicating his trailer had been damaged by snow load on January 12, 2010. Mr. Racette was concerned by Mr.Lupastin’s claim as he did not recall Regina and area receiving a lot of snow fall prior to a blizzard which occurred on January 23, 2010. On March 29, 2010, Mr. Racette had a telephone conversation with Mr. Wickenheiser which was recorded and has been set out inparagraph 16. As a result of that conversation Mr.

Racette determined that the date of loss was January 23, 2010 and denied Mr.Lupastin’s claim on the basis that the trailer was not registered (insured) on January 23, 2010. [24] Mr. Lupastin’s lawyer wrote to Mr. Racette on May 18, 2010 inquiring as to what evidence SGI has that indicated the date ofloss was during the period of time (January 20 - March 6, 2010) that Mr. Lupastin did not have insurance. [25] In a letter dated May 19, 2010 (Exhibit P-1, Tab 15), Mr. Racette provided his response as follows: In response to your letter of May 18, 2010, the date of loss was in fact determined from Mr. Wickenheiser.

I spoke to him and he told methat the snow blew on the trailers on the weekend of “The Big Storm”. I questioned him on this and he made reference to the storm thatoccurred on the weekend of January 23, 2010. At that time there was no contract of insurance on Mr. Lupastin’s trailer. [26] On cross-examination Mr. Racette acknowledged that Mr. Wickenheiser had submitted a statement to him (Exhibit P-1, Tab4) which indicated that in early January 2010, Mr. Wickenheiser had noticed a snowdrift that went from the top of his motor home to theground and after going into the trailer he observed a sag in the roof.

However, Mr. Racette testified that he was doubtful that thesnowdrifts could have occurred in early January 2010, given the minimal amount of snow fall up to that point in time. Mr. Racette didnot believe Mr. Wickenheiser’s statement that the loss occurred in early January 2010. Analysis

A) Which of the parties has the onus of proof respecting the date of loss? [27] In American Home Assurance Co. v. Canadian Pacific Railway Co., [2004] A.J. No. 1191, Judge Hawco of the Court ofQueen’s Bench of Alberta had occasion to consider the issue of the onus of proof respecting the date of loss as follows: GENERAL PRINCIPLES 21 In resolving coverage issues, the prescribed approach was outlined by McLachlin J. (as she then was) in Reid Crowther & PartnersLtd. v.

Simcoe & Erie General Insurance Co., (SCC), [1993] 1 S.C.R. 252 at 268-269: In each case the court must examine the provisions of the particular policy at issue (and the surrounding circumstances) to determine ifthe events in question fall within the terms of coverage of that particular policy. That is not to say that there are no principles governingthis type of analysis. Far from it. In each case, the courts must interpret the provisions of the policy at issue in light of general principlesof

interpretation of insurance policies, including, but not limited to: (1) the contra proferentum rule;

(2) the principle that coverage provisions should be construed broadly and exclusion clauses narrowly; and (3) the desirability, at least where the policy is ambiguous, of giving effect to the reasonable expectations of the parties. 22 It is well established that the onus of proving that the loss claimed was fortuitous and covered under the policy during the policyperiod lies on the insured: British & Foreign Marine Insurance Co. v. Gaunt, [1921] 2 A.C. 41 (H.L.); Luciani v. British America Co., (ON CA), [1931] 1 D.L.R. 166 (Ont. C.A.). [emphasis added] [28] Therefore, in advancing his claim, Mr.

Lupastin has the onus of proving on a balance of probabilities that he sustaineddamage to his trailer during the policy period.

B) Has the Plaintiff established that the date of loss occurred during the period of time the trailer was insured by the Defendant? [29] In University of Saskatchewan v. Fireman’s Fund Insurance Co. of Canada, (SK CA), 158 Sask. R. 223,the Saskatchewan Court of Appeal determined that loss or damage must occur during the term of an insurance policy. Sherstobitoff J.A.stated as follows at paragraphs 20 to 22: 20 It is common ground that the event which gives rise to the obligation to indemnify under the terms of the policy is the occurrence ofthe loss or damage to the insured building.

The insured did not argue that this was a “claims made” policy. It based its entire argumenton the premise that the trial judge was correct in finding that the loss occurred during the term of the policy. 21 As noted above, the policy provides insurance against “all risks of physical loss or damage.” The policy period is stated to be fromJune 30, 1984 to November 30, 1985. Other than these two provisions, there is nothing in the policy explicitly stating the loss or damagemust occur during the period of insurance.

Nevertheless, it is trite law that this be so. 22 The principle is summarized in McGillivray & Parkington on Insurance Law (8th ed., 1988), at paras. 994-5: 994 Time of loss in relation to the period of risk. Difficulties sometimes arise in relation to the time at which a loss, in respect of theclaim is made occurs.

The general rule is that, in absence of express terms to the contrary, the assured must suffer a loss from a perilinsured against during the currency of the risk . . . 995 In cases of indemnity insurance, the engagement of the insurer is to pay an indemnity for losses suffered by the assured, so that theevent upon which payment depends is the actual occurrence of the loss. The loss must accordingly be suffered inside the period ofcover.

See also: Couch’s Cyclopedia of Insurance Law (2nd ed., 1985), Vol. 9, para. 39:203, Colinvaux’ Law of Insurance (5th ed., 1984), at para. 4-30, and Ivamy’s General Principles of Insurance Law (6th ed., 1992), at pp. 402-3. [emphasis added] [30] In the present case the trailer was insured by the Defendant in 2009 and up to January 20, 2010 when the licence platesexpired. The insurance coverage was not in effect from January 20, 2010 until March 6, 2010 when it was renewed. [31] Paragraphs 4 and 5 of the Plaintiff’s claim states as follows: 4.

From late November 2009, until February 2010, the Plaintiff was in Mexico. During his absence, the Plaintiff stored the trailer onproperty owned by a friend by the name of Greg Wickenheiser. 5. At some unknown point during the time the Plaintiff was absent in Mexico, the trailer suffered damage. Mr. Wickenheiser firstnoticed the damage in early January and contacted the Plaintiff by texting him. The Plaintiff’s reply was that he would be in Mexicountil February and would examine the trailer upon his return. [emphasis added]

[ 32 ] The Plaintiff’s evidence as a whole provides several alternative dates that the trailer was first observed to have been damaged by snow load. Those dates include: 1. December 9, 2009. 2. Early January 2010. 3. January 12, 2010. 4. January 23 or 24, 2010. [ 33 ] It is noted that the Plaintiff did not provide any evidence respecting whether the date of loss/ damage to the trailer occurred on these dates in the form of sudden damage or prior to these dates as the result of damage over time. Hence, I am left with the dates set out above. [ 34 ] Initially Mr.

Lupastin provided SGI with a sworn statement regarding the damage to his trailer on March 4, 2010 (Exhibit P- 1, Tab 6). In this statement, Mr. Lupastin swore that January 12, 2010 was the date Mr. Wickenheiser first advised him of the damage to his trailer. At trial Mr. Lupastin attempted to distance himself from his sworn statement suggesting the date of January 12, 2010 was not a “big deal” and was in any event arrived at in conjunction with a female SGI adjuster. Mr. Lupastin testified at trial he is now “not entirely sure” that Mr. Wickenheiser contacted him on January 12, 2010.

Following a review of his cell phone records Mr. Lupastin testified that December 9, 2009 “could” have been the day Mr. Wickenheiser texted him regarding the damage to his trailer. [ 35 ] Mr. Wickenheiser provided his statement to SGI on March 4, 2010. This statement indicates that in early January 2010 he noticed the damage to the trailer. Mr. Wickenheiser then spoke to SGI adjuster Marshal Racette on March 29, 2010. The transcript of this poor quality recorded conversation reveals that Mr. Wickenheiser first noticed the damage to the trailer on or about January 23, 2010. However a t trial, Mr.

Wickenheiser distanced himself from the date of January 23, 2010. Mr. Wickenheiser testified that he was “ unable to determine the exact day ” he noticed damage to the trailer. He added that the damage to the trailer “could” have happened in December 2009. He was not sure. [ 36 ] There is, however, a credibility problem with the Plaintiff’s contention that December 9, 2009 was the date of loss and was within the period of insurance coverage. Mr. Lupastin and Mr. Wickenheiser testified that Mr. Lupastin was in Mexico when Mr. Wickenheiser texted him regarding the damage to the trailer.

While the Plaintiff was unable to obtain his texting records, he was able to produce cell phone records. The Plaintiff’s cell phone records (Exhibit P-1, Tabs 1 & 3) reveal that Mr. Lupastin was in fact in Regina on December 9, 2009 when he placed calls to Mr. Wickenheiser at 13:01 (2 minutes) and 13:40 (4 minutes) respectively. The only date which Mr. Lupastin called Mr. Wickenheiser from Mexico was December 23, 2009 at 15:34 (4 minutes). [ 37 ] Moreover, Mr. Lupastin also testified that after receiving the text from Mr.

Wickenheiser regarding the damage to his trailer, he called his insurer, Hook Lafrance from Mexico. While, Mr. Lupastin’s cell records (Exhibit P-1, Tabs 2 & 3) show that on December 9, 2009, Mr. Lupastin placed a call to his insurance agent, Hook Lafrance at 16:34 (5 minutes), the records clearly indicate that Mr. Lupastin called from Regina on December 9, 2009, not from Mexico. The only dates which Mr.

Lupastin called Hook Lafrance from Mexico were January 25, 2010 at 10:41 (3 minutes) and February 25, 2010 (1 minute) which occurred outside the period of insurance coverage. [ 38 ] In the present case given the conflicting dates of loss advanced over time by Mr. Lupastin, it is no wonder SGI investigated and ultimately denied the claim.

Given the conflicting dates of loss and credibility issues respecting the Plaintiff’s evidence raised at trial I am simply unable to conclude that the Plaintiff has established on the balance of probabilities that the damage to the trailer took place during the period of time the trailer was insured by the Defendant. As a result I am unable to conclude that the Defendant breached the contract of insurance. Lastly, I find no merit to the Plaintiff’s claim that SGI acted in bad faith. As a result the Plaintiff’s claim is dismissed.

Summary [ 39 ] I am of the view that the Plaintiff has not established: (1) that the damage to his trailer occurred during the time the trailer

was insured; (2) the Defendant company breached a term of the contractual agreement between the parties; or (3) that the Defendant acted in bad faith. [ 40 ] I therefore dismiss the Plaintiff ’ s claim against the Defendant. The Plaintiff shall pay the Defendant the sum of $200.00 in costs. ________________________ M. Hinds, J