When does the limitation period begin to run in duty to defend or duty to indemnify cases?
In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs. Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor. Georgian was added as an additional insured to the contractor's policy. The underlying claim was ultimately settled on the basis of the contractor's admission of liability.
One of the issues was when the limitation period began to run. Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.
Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement." Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.
Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.