Uncertainty exists around court's stance on duty to defend

Lawsuits arising as a result of “slip and falls” are common. The situation often unfolds as follows: on a winter day, an individual slips and falls. They sue both the property owner and the contractor responsible for performing winter maintenance at the location of the fall. Counsel for the property owner, who is named as an ‘additional insured' under the contractor's general liability insurance, writes to counsel for the contractor and demands that the insurer assume the defence of the property owner.

The demand is typically met with deafening silence. At that point, counsel for the property owner, or any defendant in a similar position, must decide what steps to take. One problem for counsel is that the courts are inconsistent in their response to this situation.

In some cases, the court focuses on the “essence” or “true nature” of the claim. If that “essence” falls within the scope of the insurance policy, the court orders that the insurer is obligated to defend the entire action.

In other cases, however, the court narrows its analysis. It finds that the duty to defend arises only with respect to specific allegations. Unless the claim falls within these specific allegations, the insurer is only ordered to pay partial defence costs.

For the purposes of certainty and predictability, it is important that the courts adopt a consistent approach to the duty to defend.