[2010] N.B.J. No. 436

3011 NBQB 26

New Brunswick Court of Queen’s Bench

H.H. McLellan J.

December 17, 2010

The plaintiff sued his insurer, Aviva Insurance Company (“Aviva”), for damages for breach of contract. Aviva insured the plaintiff's home against fire from 2000 onward. A fire occurred in the plaintiff's home in December 2007 which was caused by a wood stove. Aviva voided the policy and denied coverage on the basis that the plaintiff had installed the wood stove in his home in 2001 and that constituted a material change in the risk.

The plaintiff, age 74, had dropped out of grade seven at age 16. He never read the insurance policy. The plaintiff stated that he was unaware of any obligation to inform the insurer of the installation of the stove. Had the plaintiff read the insurance policy, it would not have alerted him to any obligation to notify the insurer regarding the addition of the wood stove as a supplemental heat source. The insurer relied on a renewal policy notice which contained a caution to ensure that all information in the policy was accurate, as coverage and premium were based upon the information provided. The insurer submitted that the wording should have put the plaintiff on notice to inform the insurer that heating had been updated since 1999. The plaintiff's policy stated that the “primary” heating was electric. Plaintiff's counsel submitted that the use of the term "primary" implied a secondary source of heat. It was submitted that the description of the coverage under the policy was therefore correct.

The Court found that Aviva had breached its contract of insurance with the plaintiff and was liable to him under the policy. The knowledge of the plaintiff was the determinative factor. The lack of guilty knowledge on the part of the plaintiff supported the conclusion that the wood stove, as a supplemental or auxiliary heating unit, was not a material change of risk. Damages were assessed at $23,662. The plaintiff was awarded costs.