Two insurance policies had the same “other insurance” clauses which made the policies excess insurance when other insurance was applicable. The two insurers were required to share equally in the defence and indemnity of the insured.

Insurance law – Homeowner’s insurance – Multiple policies – Overlapping policies – Different insurer – Interpretation of policy – Exclusions – Excess liability – Duty to defend – Practice – Appeals

TD General Insurance Co. v. Intact Insurance Co., [2019] O.J. No. 60, 2019 ONCA 5, Ontario Court of Appeal, January 9, 2019, R.G. Juriansz, D.M. Brown and L.B. Roberts JJ.A.

A boat passenger claimed damages for personal injuries after the boat struck the shoreline. The passenger sued the driver and owner of the boat. The owner had an insurance policy which provided coverage for the driver and the driver was also covered by his homeowner policy. The insurers dispute which policy was primary. The policies had identical “other insurance” clauses which provided that the policy would be excess insurance if other insurance applied. The court held that the insurers were required to share equally in the defence and indemnity of the insured.

This case was digested by Dionne H. Liu, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Dionne H. Liu at dliu@harpergrey.com.

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