Who put the wrong pin in the exercise machine?
Justice Ardith Walkem says that will be “an issue” at trial in a personal injury claim against Surrey for damages arising from a man being injured while using a leg press machine at the Surrey Recreation and Leisure Centre. The plaintiff claims a pin fell out, and that the pin wasn’t designed for the machine it was placed in.
In a related action, the City of Surrey took Co-operators General Insurance Company to B.C. Supreme Court in New Westminster last month seeking an order that would compel the insurance company to defend it against the injury claim.
Walkem noted in her June 5 reasons for judgment that Surrey had contracted with Roland Cerf, Dorothy Cerf, and Elk Fitness Repair – collectively Elk – to provide weekly maintenance, repair and preventative maintenance every four months at Surrey’s fitness facilities. “The agreement required Elk to provide insurance to Surrey against any negligence on their behalf,” the judge noted.
The court heard Elk took out an insurance policy with Co-operators listing Surrey as an additional-named-insured containing an exclusion clause for bodily injuring arising from any act or omission by Surrey or its employees. Elk claims the pin that was in the leg press machine had not been put there by them.
“If liability regarding improper pin placement is found, the question of who was responsible for placing the wrong pin in the leg press machine will be an issue at trial in the Underlying Action,” Walkem noted.
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Surrey made a demand for defence against the injury claim but Co-operators denied coverage for potential liability, arguing that Elk had replaced the pin with a proper one and “if the wrong pin was in the machine, this is not their responsibility, but rather the result of actions of Surrey or other, unknown, third parties,” Walkem said.
“They argue that a determination that they were not responsible for the pin placement would, in effect, mean that their insurance does not cover Surrey. They point out that the insurance coverage requires an act or omission on the behalf of Elk or its employees, and does not extend to bodily injury arising out of any act or omission on the part of the additional insured (Surrey) or any of its employees.”
Walkem noted that after a trial “it may turn out that there is no liability on the insurer, and thus, no indemnity triggered. But that is not the issue when deciding the duty to defend. Consequently, we cannot advocate an approach that will cause the duty to defend application to become ‘a trial within a trial.’”
She said the burden rests on the insurance company “to show the exclusion clause applies to oust their duty to defend.
“I find they have not done so.”
The judge said the question before her is whether Co-operators would be bound to defend Surrey based on allegations contained within the pleadings.
“I find that they would. Surrey is granted an order on the terms sought.”
tom.zytaruk@surreynowleader.com
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