Docket: 1946 Wawanesa Mutual Insurance Company Appellant (Defendant) - v. -, 2010 SKCA 157

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 157 Date: 20101217 Between: Docket: 1946 Wawanesa Mutual Insurance Company Appellant (Defendant) - and - Daniel Tapp and Catherine Kirby-Tapp Respondents (Plaintiffs) Coram: Vancise, Richards and Caldwell JJ.A. Counsel: David Thera for the Appellant (Defendant) Daniel Tapp for the Respondents (Plaintiffs) Appeal:

From: 2010 SKQB 165 Heard: December 17, 2010 Disposition: Dismissed (orally) Written Reasons: December 30, 2010 By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr.

Justice Caldwell Vancise J.A. [ 1 ] Wawanesa Mutual Insurance Company appeals a decision of Madam Justice Gunn, reported at 2010 SKQB 165 , wherein she found that the damage suffered by the respondents did not come within the exception of the policy which would have denied them recovery. [ 2 ] Briefly, but as fully explained in Gunn J.’s decision, the water pipes in the respondents’ hot tub room froze and burst causing damage to their basement. The pipes froze because Mr.

Tapp, in order to deal with the leak in the hot tub, drained the tub and shut off the heat pump. [ 3 ] Wawanesa’s policy specifically excludes damage caused by freezing in an unheated portion of the dwelling. The trial judge found the room was not an unheated portion of the dwelling and that they were entitled to coverage. [ 4 ] It is from this finding that Wawanesa appeals. [ 5 ] The relevant

section of the policy provides as follows: INSURED PERILS …[T]hat covered property is insured against all risks of direct physical loss or damage except: … (8) water: … but under no circumstances will “we” insure loss or damage: (

g) caused by freezing during the usual heating season: … (ii) within an unheated portion of “your” “dwelling” [ 6 ] We are all agreed that, in the circumstances of this case, the trial judge did not err in finding that the respondents were entitled to coverage under the policy. An unheated portion of the dwelling is not a portion of the dwelling that is unheated simply by reason of one of the respondents negligently failing to appreciate the consequences of turning off the hot water in the hot tub.

The result is that the damage did not occur within an unheated portion of the dwelling. [ 7 ] The appeal is therefore dismissed with costs to the respondents in the ordinary way on the appropriate tariff.