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July 18, 2012

Duty to Defend - Winter Maintenance Contractor

Minto brought an application seeking a declaration that Carlsbad and its insurer, Intact, were obligated to provide it with a defence.  Minto was a property owner that was named as a defendant in a slip and fall action.  Carlsbad contracted with Minto to provide winter maintenance on the property.  In the contract, Carlsbad agree to indemnify and save harmless Minto, to maintain a CGL policy with $2,000,000 limits and to add Minto as an additional insured.

Carlsbad refused to assume the defence.  It argued that the claim included allegations of negligence with respect to snow and ice removal, inspection, warning signs, breach of lease agreement and occupier's liability.  Its position was that the majority of the claims did not fall within the scope of coverage and stood on their own.

Justice Kershman held that the true nature of the Statement of Claim was that of a negligence case where the plaintiff slipped on snow and ice in the parking lot.  It therefore fell within the scope of coverage and Intact had a duty to defend Minto. 

Duty to defend issues arise fairly often in slip and fall cases where the property owner hires a contractor to maintain the property.  It is important to look closely at the Statement of Claim to determine the true nature of the claim; the mere insertion of a number of different allegations by the plaintiff will not necessarily be enough to take the claim outside of the scope of coverage.

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