Insurer was found to owe insured a duty to defend notwitstanding allegations of intentional conduct causing harm and an exclusion in the policy for intentional acts.

[2014] A.J. No. 1278

2014 ABQB 688

Alberta Court of Queen's Bench

G.A. Campbell J.

November 12, 2014

The insured was a defendant in an action commenced by the plaintiff for personal injuries arising out of a floor hockey game in which she and the insured were participants. The insured had a liability policy that included an exclusion for intentional conduct. On that basis he was denied coverage and the insurer refused to defend him. The insured sought a declaration that the insurer was obliged to defend him in the action and to pay a pro rata share of the expenses the insured incurred to defend himself in the action.

The court reviewed the statement of claim in which it was alleged that the insured had committed an assault and battery by "intentionally, viciously and forcibly tripping and then pushing" the plaintiff. The plaintiff later filed an amended statement of claim in which she alleged negligence. The court concluded that if the facts underlying the intentional tort claim were removed, there would still be a basis to advance a claim in negligence, which would give rise to the possibility that there could be coverage. Accordingly, the court found that the insurer had a duty to defend the insured in the action.