Thursday, 13 June 2013

The doughnut shop fight that made the Ontario Court to protect the policyholder’s personal injury claim

The incident that took place a couple of years from now, i.e. in the month of February, 2011 forced the Ontario court to rethink on the personal injury claims, when it was found that the insurance policy excludes coverage for any kind of criminal acts. As a result, the Ontario court planned to issue orders to the insurer to guard the personal injury claim of the policyholder, when it was found that the policyholder, who was found guilty of assaulting the man, who is now suing him. 

Fausto Simone and Vincenzo Sgambelluri are the names of the persons involved in the fight. It all happened when Sgambelluri supposedly ran into the drive-through line. He has now sued Simone for all the alleged personal injuries namely broken leg, depression and anxiety, which he had to suffer because of Simone’s negligence.   

After several discussions, Simone received a conditional discharge as he was found to be guilty of common assault. But, as per the court records, the judge of the trial was “not convinced beyond a reasonable doubt” that Simone was responsible for any attack causing bodily harm. As written by Mr. Justice Bruce Glass in background with his May 31, 2013 decision on Economical’s duty to defend, “The trial judge found that there had been a chest bumping between the two men". 

Furthermore, the judge with the Ontario Superior court of Justice found that the proceedings could be based on those negligent actions that are not grouped under criminal actions. This caused the Ontario Court issue orders to the insurance company to protect the lawsuit against the policyholder for those personal injuries allegedly resulting from such an action.

When Simone found that the insurance policy he had, offers no coverage against the criminal acts, he applied to the court for a declaration asking economical insurance for his defence. But the insurance company, on the other hand, argued that the policy which Simone holds does not offer any kind of compensation for personal injuries developed as a result of any intentional criminal acts or failure to act.  

After scrutinizing all the proofs and studying the entire case, on May 31, 2013, Judge Glass ruled the decision in favour of Simone saying that he "is entitled to declaratory relief" and ordered the insurance company to support him "with the exception of a claim for punitive or exemplary relief," since punitive and exemplary damages are excluded from the insurance policy.

"There will be an order for a declaration that the Respondent defends the action," Judge Glass wrote.
Looking at the possibility that Simone could go for a negligence claim, Judge Glass in his ruling also suggested, exclusions of Simone's policy with Economical Insurance would not apply. However, "If there is a realistic possibility that a claim in negligence might be advanced separate from a claim for damages resulting from an assault, the insured is entitled to benefit of a defence being carried by the insurer," Judge Glass wrote, noting that when determining whether a carrier has a duty to defend, a court must look "beyond labels used" by a plaintiff and "determine the substance and true nature of the claims."