New Brunswick Shooting Death

New Brunswick's case involving the accidental shooting death of a friend at a house party has been ruled on by the Supreme Court. The Supreme Court has refused to grant leave to appeal. By doing so the Supreme Court has upheld the decision of the New Brunswick Court of Appeal.

The concern was that if a person has a criminal charge against them then the insurance company should not have a duty to defend.

The Supreme Court of Canada has declined to hear the appeal of Optimum Insurance Company in this duty-to-defend case.

Optimum, the insurance company argued that it did not have a duty to defend Brandon Joseph Donovan because his actions allegedly breached the homeowner policy's exclusion for criminal acts.

With Donovan's parents were away for the holidays 23 year-old Donovan held a party. During the course of the party he discharged a firearm and accidentally killed his friend, Cody Gillespie.

The home insurer refused to provide for Donovan's defense. Donovan sued the insurer for failing to comply with its duty under the policy.

The insurance company agreed that Donovan did not intend to kill or injure kill Gillespie. Their arguments was that the statement of claim in a civil case against Donovan was tied to "wrongful conduct" (i.e. brandishing firearms in a reckless manner). This conduct constituted a criminal act within the meaning of the policy's "criminal act" exclusion.

When taken to The New Brunswick Court of Appeal the insurer's argument was dismissed. The Court stated that neither the insurer nor Donovan made any reference in the pleadings to the Criminal Code, upon which Optimum relied for its argument.

Second, the New Brunswick Court of Appeal ruled, allegations of misconduct in civil trials commonly resemble the language found in a case involving criminal charges. “All of that to say that courts are rightly disinclined to rule out a duty to defend solely on the basis of textual symmetry or similarity between the plaintiff's claim and a Criminal Code provision.”

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