Gordon v. Royal Ins. (1980), 40 N.S.R.(2d) 259 (TD);
73 A.P.R. 259
MLB headnote and full text
Gordon v. Royal Insurance Co. and Stewart
(S.P. No. 00581)
Indexed As: Gordon v. Royal Insurance Co. and Stewart
Nova Scotia Supreme Court
Trial Division
Glube, J.
June 5, 1980.
Summary:
This headnote contains no summary.
Insurance – Topic 5968
Fire insurance – Loss payable to mortgagee – Effect of failure of mortgagee to notify insurer of change material to risk – A fire insurance policy required (in a mortgage clause) that the mortgagee notify the insurer of a vacancy of more than 30 days – However, the policy did not specify the consequences of notice to the insurer of a vacancy or of failure to give such a notice – The mortgagee knew that the home insured was vacant more than 30 days before the home was destroyed by fire – The insurer defended the mortgagee’s claim for the policy proceeds by claiming breach by the mortgagee in failing to notify the insurer of the vacancy – The Nova Scotia Supreme Court, Trial Division, allowed the mortgagee’s action for the proceeds and held that the breach did not invalidate the policy – The Trial Division granted the insurer leave to file a counterclaim for damages for the mortgagee’s breach.
Insurance – Topic 1724
The insurance contract – Breach by insured, effect of – A fire insurance policy required the insured to notify the insurer of a vacancy of more than 30 days but the policy did not specify the consequences of notice to the insurer of a vacancy or of failure to give such a notice – The Nova Scotia Supreme Court, Trial Division, stated that in case of a breach by an insured of such a notice requirement, the policy is not invalidated (see paragraphs 12 to 23).
Cases Noticed:
London L. & S. Co. of Canada v. Union Ins. Co. of Canton Ltd., [1925] 4 D.L.R. 676 (Ont. C.A.), folld. [para. 13].
Webb Real Estate Limited and Antigonish Home Furnishings Limited v. McInnis, Meehan & Tramble et al. (1977), 20 N.S.R.(2d) 6; 27 A.P.R. 6, refd to. [para. 28].
Authors and Works Noticed:
Heighington, Insurance and the Mortgagee, Vol. 27 (1949), No. 8, 879 [para. 20].
Ivamy, General Principles of Insurance Law (2nd Ed.), p. 251 [paras. 20 & 21].
Counsel:
J.G. MacDonald, for the plaintiff;
D. Miller, for the defendant, Royal Insurance Company of Canada.
This case was heard by Glube, J., of the Trial Division of the Nova Scotia Supreme Court at Pictou, Nova Scotia, on April 22, 1980.
The judgment of Glube, J., was delivered at Pictou, Nova Scotia, on June 5, 1980.
