There was no duty to defend against claims that in substance sounded in the intentional tort of battery.
Insurance law – Homeowner’s insurance – Duty to defend – Exclusions – Intentional acts
Obront v. Dominion of Canada General Insurance Co.,  O.J. No. 367, 2019 ONSC 594, Ontario Superior Court of Justice, January 25, 2019, L.A. Pattillo J.
The insured sought a declaration that the insurer was obliged to defend and indemnify him against claims made by a plaintiff in an action for personal injuries.
The plaintiff was a camp counsellor and the insured was a camper at a Toronto day camp. The plaintiff alleged that the insured, who was a minor at the time, “suddenly and without warning … approached [the plaintiff] from behind and put his two hands on top of [the plaintiff’s] head. He proceeded to pull [the plaintiff’s] head back and knee him in the back.” As the plaintiff was walking to a nearby bench to sit, the insured, “approached [the plaintiff] and once again pulled his head back and this time punched [the plaintiff] in the neck.” Upon receiving the original statement of claim, which described the incident as an assault, the insurer sent the insured’s parents a reservation of rights letter, advising that the insured was not covered under the homeowner’s policy due to the intentional acts exclusion. The plaintiff later amended his claim to include particulars that characterized the incident as “excessive and dangerous horseplay.” The insured brought this application.
At the outset, the Court held that the indemnity portion of the application was premature as a finding of indemnification could only be made following a determination of the underlying allegations. Regarding the duty to defend, the Court found that the allegations in the amended claim clearly sounded in the intentional tort of battery. While no intent to injure was plead, the Court held that the tort of battery did not require intention. Describing the incident as “excessive and dangerous horseplay” did not change the true nature of the conduct pleaded. The negligence claim was therefore derivative of the intentional tort. The claim was excluded from coverage and there was no duty to defend.
This case was digested by Michael J. Robinson, 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 Michael J. Robinson at firstname.lastname@example.org.