BarzoLaw.com

In Part 1, I ended with the issue of whether the insurer in these circumstances (where there are both allegations that are not covered and are covered by the policy) would be required to pay for the defence of my clients.  The law gets somewhat “subtle” on this point.

In the past, the courts have grappled with the situation where a clever plaintiff’s lawyer, acting for an injured person as a result of an intentional act, will also frame the case on the basis of negligence since that clever lawyer knows that the defendant will have no insurance coverage otherwise.  With no insurance coverage, it is unlikely the plaintiff will recover any money.

The courts essentially say that a “rose is a rose” no matter what name you call it.  If the allegations of negligence are really “derivative” of the otherwise uncovered allegations, then the insurer will still not be required to defend the action on behalf of its insured.

What is derivative?  The simplest example is an assault.  The plaintiff alleges that the defendant punched him/her.  But the clever lawyer knows that the defendant’s homeowner’s insurer won’t respond, also uses the words and phraseology in the claim to assert negligence.

But it is the exact same acts being complained of.  Thus it is “derivative” and the insurer will not be required to defend.

But in the case I am dealing with, the plaintiff alleges that “one or more” of the defendants assaulted him.  It goes on to allege that if my clients were not the perpetrators of the assault, they negligently allowed it to happen, and negligently failed to stop it, and then negligently failed to get timely medical treatment for the plaintiff.

Those allegations are distinct and separate, thus in my view are not derivative of the assault allegations and therefore, I have sued the insurer to force their hand and to have the insurer comply with its obligation to pay for the defence of the lawsuit as against my clients.

John Barzo
205-60 Collier Street,
Barrie, Ontario, Canada
L4M 1G8

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#: 705-733-6245
jbarzo@barzolaw.com