in the supreme court of british columbia - Clark Wilson LLP

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British Columbia Medical Association v. Aviva Insurance Company of Canada Page 20 in conducting the analysis, the court must assume the truth of all of the factual allegations. [58] Aviva relied upon a number of American authorities which support the proposition that claims of libel and slander which are alleged to be part of a deliberate and knowing plan to injure, do not trigger a duty to defend under typical “personal injury” wordings. These typically recognize a distinction between an intentional act and an intended injury, finding there is no coverage for defamation pleadings related to the latter based upon explicit provisions recognizing the fortuity principal fundamental to every policy of liability insurance, or public policy considerations related to fortuity (see Insura Prop. & Cas. Ins. Co. v. Ashe, 2003 WL 253255 (Tenn.Ct.App.); Monumental Life Insurance Company v. US F & G, 94 Md. App. 505 (1993); Cincinnati Ins. Co. v. Shanahan, 2008 WL 4426116 (C.D.Ill.); Continental Casualty Co. v. Schaubel, 380 So.2d 483 (1980 Fla.App.3rd)). 2011 BCSC 1399 (CanLII) [59] Finally, Aviva submits that the allegations of negligence which were contained in the original Statement of Claim are derivative of the clear allegations of an intentional campaign to injure. [60] In my view, Aviva’s contention that, for purposes of the present analysis, the court must proceed on the assumption that all the facts in the alleged underlying Claim will be made out is overly restrictive. To my mind, it is also inconsistent with the principle reiterated by the court in Progressive that a duty to defend exists if there is a possibility that the claims could fall within the insurance coverage. I think that it is implicit in that test that in considering the issue, the court should address possible outcomes at trial based upon the claims alleged in the statement of claim. In other words, in order to determine if there is a possibility of coverage, the court should consider the possibility that some but not all of the plaintiff’s allegations will succeed at trial. [61] I note that in Scalera, the majority in addressing the question of whether there was a duty to defend considered what the possible outcomes could be and whether the policy provided coverage for either eventuality. Concluding at paras. 43 and 44:
British Columbia Medical Association v. Aviva Insurance Company of Canada Page 21 I conclude that there is no justification in cases of battery of a sexual nature for departing from the traditional rule that the plaintiff in a battery action must prove direct contact, at which point the onus shifts to the defendant to prove consent. To do so would be to place a burden upon plaintiffs in battery actions of a sexual nature which plaintiffs in other battery actions do not bear. I see neither the need nor the justification for doing this on the material before us in this case. This said, I agree fully with Iacobucci J. that the law will not permit a defendant in an action for sexual battery to say that though he might be found to have committed the battery, he did not intend any harm. This leaves the defendant with two alternatives discussed in Williams, supra. Either the plaintiff consented, in which case no action lies, or she did not consent and the defendant is deemed to have intended to injure her. In neither case does the policy provide coverage. 2011 BCSC 1399 (CanLII) [62] Further, in Scalera, Mr. Justice Iacobucci characterized the task as follows at paras. 93 and 94: Our task, therefore, is to decide which of the plaintiff's legal allegations are properly pleaded, whether any of them are derivative, and whether any of the surviving claims evince an intention to injure, thus triggering the exclusion clause. To do this, it is necessary to understand precisely what the elements of the various torts alleged against the appellant are. If the elements of a tort claim require proof of conduct that also proves an intent to injure, there will be no duty to defend because any potentially successful claim would fall under the exclusion clause. As will be seen from the following discussion, I conclude that each of the plaintiff's properly pleaded claims necessarily involves an intent to injure, because each requires proof that the appellant either knew, or should have known, that the plaintiff did not validly consent to sexual activity. Given this actual or constructive knowledge of non-consent, the law will not permit the appellant to claim that he did not intend any harm. The exclusion therefore applies because there is no claim against the appellant that, if successful, could potentially fall within coverage. There being no potentially indemnifiable claim, the respondent has no duty to defend. [63] In The Co-operators General Insurance Company v, Morrison, 2004 NBCA 62 [Morrison], the plaintiff claimed for damages arising from a motor vehicle collision and subsequent assault at the hands of the defendant. The original statement of claim had alleged that both acts were intentional. It was conceded that the original statement of claim did not raise any claims which would be payable under the insurance and hence there would be no duty to defend. A subsequent amendment alleged that the collision was the result of negligence and therefore raised the
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