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Requirement for an accident / fortuity in British Columbia insurance claims

It is a fundamental principle of insurance law that only “accidental” losses are insurable:
 
[It is] fundamental to a successful insurance claim that the loss involve “accident” or “fortuity”.
(Brennan v. Economical Mutual Insurance Co., 2000 CanLII 22709 at para. 15 (Ont. S.C.)).
 
A “fortuity” is a “chance occurrence”, and is a word commonly used in insurance law (although not commonly used in everyday life). “Fortuity” means essentially the same thing as “accident”:
 
[An accident is] something out of the ordinary or the likely, something fortuitous, unusual and unexpected, not in the ordinary course guarded against.
(Canadian Indemnity Insurance Co. v. Andrews and George Co., [1953] 1 S.C.R. 19 at 27).
 
Similarly:
 
In general, the word "fortuitous", as interpreted by the cases, carries the connotation that the cause of the loss not have been intentional or inevitable
(C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814).
 
Implications of the requirement for an accident is that one cannot insure against a loss that is certain to occur, and one cannot claim under insurance for an event intentionally caused:
 
Fortuity cannot exist where an insured has purposely caused the loss.
(Brennan v. Economical Mutual Insurance Co., 2000 CanLII 22709 at para. 33 (Ont. S.C.)).
 
The fundamental requirement for an accident, and a loss not intentionally caused, are principles that apply to contracts of insurance regardless of whether the policy expressly refers to those requirements.
 
Whether pleadings in court proceedings allege an accident will be relevant to insurance coverage. For example, an accident must be alleged in order for the duty to defend under a CGL policy to be triggered:
 
In my view, the pleadings sufficiently allege an “accident”.  There is no reference to intentional conduct by Progressive which would suggest that the property damage was expected or intended.  The pleadings allege negligence, which, on its face, suggests that the damage was fortuitous. 
(Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33 at para. 49).

 

 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing persons who have been denied coverage under property insurance policies, or liability insurance policies. If you have been denied insurance coverage and require assistance with making a claim against your insurer call Michael at 604 895 3160.