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Insurer must defend property owner and snow removal company in slip-and-fall lawsuit

Riocan Holdings Inc. v. Intact Insurance Co., 2017 ABCA 73

Riocan Holdings Inc. owns several properties in Alberta. Riocan contracted with Think Green Alberta to carry out snow removal and sidewalk maintenance at its properties. In the service contract, Think Green Alberta agreed to indemnify Riocan in respect of every loss, cost or expense which Riocan suffers as a result of any claim arising from or related to the snow removal work, whether Riocan is negligent or not. The contract also required Think Green Alberta to purchase its own liability insurance and to name Riocan as an additional insured. Think Green Alberta purchased a policy from Intact Insurance and named Riocan as an additional insured.

In December 2013, a woman claimed to have slipped and fell on an icy sidewalk at one of Riocan’s properties. The injured woman brought an action against Riocan and Think Green Alberta. Intact hired counsel to represent Think Green Alberta in the lawsuit, but declined to hire counsel to defend Riocan.

Riocan brought a Motion seeking a declaration by the Court that Intact owed a duty to defend it against the slip and fall lawsuit. The chambers judge granted Riocan’s Motion, and Intact appealed.

On appeal, Intact argued that the Plaintiff’s allegations against Riocan were broader in scope than Think Green Alberta’s duties under the service contract.  Specifically, Intact pointed out that the Plaintiff alleged that Riocan failed to supervise Think Green Alberta, to inspect its property and to warn visitors of hazards. Further, Intact argued that these duties remained an ‘occupier’s duties’. As these duties were not transferred to Think Green Alberta under the service contract, the insurance policy should not respond and Intact should not be obliged to defend Riocan.

The Alberta Court of Appeal dismissed Intact’s appeal. The Court of Appeal ruled that the true nature of the claim was about a slip and fall which occurred on a sidewalk that Think Green Alberta was to maintain. The Plaintiff’s allegations against Riocan did not support a claim independent of Think Green Alberta’s maintenance work. Consequently, Intact was ordered to defend Riocan against the Plaintiff’s lawsuit.

You can read Riocan Holdings Inc. v. Intact Insurance Co., 2017 ABCA 73, in its entirety here.

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