Malaviya was insured under a Standard Automobile Policy (SAP) with Jevco for the minimum liability limit of $200,000. He was sued following an accident in 2005. The insurer paid the limits of its policy, then sought a declaration that it had no continuing duty to indemnify or defend Malaviya. The contentious issue on the application was whether Jevco was obliged to continue paying the insured’s defence costs.
Justice Morgan described the wording of the SAP as “muddled and contradictory”. It failed to clearly answer whether the insured would pay the insured’s legal costs above and beyond the coverage limit. On the other hand, s. 245(b) of the Insurance Act provides that the insurer shall bear the defence costs of a claim. There is no limiting language in s. 245. As a result, the insurer is obligated to continue paying defence costs of the insured, even when there is no further duty to indemnify.
The SAP may have to be modified in order to avoid this situation from arising in the future.