In Derksen v. 539938 Ontario Limited, the Supreme Court of Canada ordered both an auto and a CGL insurer to defend a personal injury action. It determined that there had been concurrent causes of the injuries, one covered by the auto policy and the other by the CGL policy.
That decision was applied in Aviva Insurance Company of Canada Limited v. Pizza Pizza Limited by Madam Justice Beth A. Allen.
The plaintiff in the underlying action was struck by a Pizza Pizza delivery truck. In her statement of claim, she not only made the usual allegations of negligence relating to the operation of the vehicle. She also alleged that Pizza Pizza’s “30 minutes or free” policy encouraged its drivers to drive too quickly.
Pizza Pizza had a CGL policy with Aviva Insurance. That policy had an exclusion for “‘bodily injury’ or ‘property damage’ arising out of the ownership, use or operation by or on behalf of any insured of: … Any ‘automobile'”.
Pizza Pizza also had non-owned automobile coverage through ING Insurance. So, the dispute was which policy was triggered by this claim. Justice Allen held that both policies had to respond.
Her Honour held that the claim, as pleaded, might not fall within Aviva’s exclusion: “the pleadings do give rise to the possibility that the Plaintiff’s injuries were caused by Pizza Pizza’s delivery policy and failure to screen drivers’ driving records. I find that claim is independent of the claim that involves the use or operation of an automobile, and for that reason, falls outside the scope of the exclusion in Aviva’s CGL policy.” This finding engaged Aviva’s coverage.
ING argued that the allegations of negligent driving should be responded to by the driver, not by Pizza Pizza. However, the statement of claim alleged that Pizza Pizza was vicariously liable for the driver’s action (even though he was not an employee, but an independent contractor). On that basis, Justice Allen concluded that there was a possibility that ING’s policy would be triggered.
So, Aviva was ordered to defend Pizza Pizza on the non-auto related claims and ING was ordered to defend the automobile related claims.