The Duty to Defend and its Applicability in Sexual Tort Cases: Perpetrators, Innocent Co-Insureds and the Impact of Non-Marine Underwriters, Lloyd's of London v. Scalera

the commercial transaction in the first place should be discarded in favour of an interpretation of the policy which promotes a sensible commercial result 2 Brown and Menezes also address these fundamental concepts, stating:Insurance is a mechanism for transferring fortuitous contingent risks.Losses that are neither fortuitous nor contingent cannot economically be transferred because the premium would have to be greater than the value of the subject matter in order to provide for marketing and adjusting costs and a profit for the insurer.It follows, therefore, that even where the literal wording of a policy might appear to cover certain losses, it does not, in fact, do so if (I) the loss is from the inherent nature of the subject matter being insured, or (2) it results from the intentional actions of the insured. 3 This passage was quoted with favour by the Supreme Court of Canada in Sca/era 4 ( discussed in detail below).Iacobucci J. in Sea/era also stated that in construing coverage, "one must always remember that insurance is presumed to cover only negligence, not intentional injuries." 5Brown and Menezes continue on to state, lest there be confusion on the point, that [a]s a simple rule of interpretation uncomplicated by other considerations, it ought to be an uncontroversial corollary of the proposition that insurance only transfers fortuitous or contingent risks ....The limit to the implied rule is that the result be intended, even if it is subsequently regretted. 6This latter passage was explicitly endorsed by the Manitoba Court of Appeal in Aclclands Ltd v. Canadian Indemnity Company. 1 Though not quoted, the passage is also consistent with the Supreme Court of Canada reasons in Sea/era.In dealing with defence and coverage obligations of an insurer in civil sexual assault cases, the author submits that it is this fundamental principle of risk or uncertainty that is at stake, and which should guide the analysis of coverage issues.In short, the result should never countenance a defence or coverage to any insured where the alleged wrongdoing of that insured is intentional in the sense that it was meant to cause injury to the victim. III. DU'IY TO DEFEND -GENERAL PRINCIPU:SLiability insurance is designed to indemnify the insured for losses covered by the policy and to provide a defence for allegations which may give rise to a duty to indemnify.In rare cases, the duty to defend is not restricted to such claims.These rare cases must be analyzed on an individual basis and are beyond the scope of this article.

Récupéré en direct depuis OpenAlex et désinversé. Les résumés ne sont pas conservés dans cette base de données : les index inversés représentent 8,6 Go des 9,3 Go de texte de la base, et le serveur dispose de 13 Go libres.