The Ontario Superior Court has ruled that TD General Insurance Company owes a duty to defend a liability claim arising out of a snowmobile accident, despite the company’s contention that it did not insure the owner of the snowmobile.
In McLean v. Jorgenson, the plaintiff received serious leg injuries, resulting in amputation of the leg, as a result of a snowmobile accident. The 1996 Polaris snowmobile in question had just been acquired by Joshua Jorgenson, a friend of the plaintiff, and the accident had happened when they and Joshua’s father were trying to start the machine.
TD Insurance insured the Jorgensons, Joshua’s parents. Several TD policies covered various vehicles belonging to the Jorgensons, including one snowmobile. However, the 1996 Polaris was not listed on any of the TD policies, as it had been acquired less than 24 hours before the accident.
When Joshua and his parents were sued, TD argued that it did not owe a duty to defend them. The Jorgensons then brought this motion, contending that either TD or the family’s homeowner’s insurer (Germania Farmers Mutual Insurance) owed a duty to defend.
The court reviewed the usual cases, standing for the well-recognized proposition that a duty to defend is owed where there is a possibility that the claim might fall within the coverage. Mr. Justice Guy Di Tomaso took the somewhat unusual step of receiving evidence from the Jorgensons (usually, these motions are decided on the basis of the pleadings and the policy wording only). That evidence was to the effect that Mrs. Jorgenson had planned to add the 1996 Polaris snowmobile to her TD policy but had not yet been able to do so by the time the accident took place.
Justice Di Tomaso concluded that the 1996 Polaris fell within the description of “newly acquired automobile”, since TD insured all of the Jorgensons’ vehicles and the Polaris had been bought less than 14 days before the accident.
He also ruled that Germania, the homeowners’ insurer, did not owe a duty to defend.