[2010] B.C.J. No. 1863

2010 BCSC 1321

British Columbia Supreme Court

C.A. Wedge J.

August 26, 2010

The plaintiff in the underlying action was injured when he was struck in the head by a lacrosse ball when he was attending a municipal recreation centre for a dog obedience class. To get to the class inside the recreation centre, participants had to pass through an area where a lacrosse practice was happening. He brought the underlying action against the B.C. Lacrosse Association, the Pacific Rim Field Lacrosse Assn. and the District of Saanich. The District of Saanich was added as an additional insured to the B.C. Lacrosse Association’s policy of insurance pursuant to wording which provided that additional insureds were covered “solely with respect to the liability which arises out of the activities of the named insured”. In the definitions section of the policy it was stipulated that coverage extended to additional insureds was “only for their vicarious liability arising out of” the named insured’s operations. Saanich requested that Aviva defend and indemnify it in the action but Aviva refused to do so. Saanich brought this petition action seeking a declaration that Aviva was required to defend and indemnify it. At issue was whether Saanich’s potential liability in the action “arises out of the activities of the named insured” and whether its potential liability was “vicarious liability” arising out of the named insured operations.

With respect to the issue of whether Saanich’s potential liability arose out of the activities of the B.C. Lacrosse Association, the court noted that the case law established that the claims against the additional insured must relate to allegations that “flow back” to the activities of the named insured, in order for it to be found that liability “arises out of” the operations of the named insured. The allegations against the District of Saanich in the underlying action were that it failed to provide an entrance to the class that did not require participants to pass through the area being used for the lacrosse practice, it failed to have its staff direct participants to an alternate route, it failed to provide a means of preventing persons on the premises from being hit by lacrosse balls, and it failed to post any warning signs. The court noted that there were no allegations that the plaintiff’s injuries were caused by anything other than the errant lacrosse ball and the pleadings did not disclose a cause of injury independent of the lacrosse activities. The court observed that, but for the lacrosse activity, there would have been no obligation on Saanich to provide an alternative entrance to the dog obedience class and the only reason the regular entrance became unsafe was because lacrosse was being played at the recreation centre at the time the class took place. The court acknowledged that the particulars of the negligence alleged against Saanich were not identical to the allegations of negligence against the B.C. Lacrosse Association, but held that they were nevertheless inextricably linked and that identical allegations of negligence between the named insured and the additional insured is not a necessary prerequisite to establish the duty to defend where the policy contemplates coverage, so long as the potential liability arises out of the activities of the named insured. The court concluded that there was a clear nexus between the possible liability of Saanich and the activities of the named insured and, therefore, Aviva owed Saanich a duty to defend the claims against it.