No Duty to Defend found in personal injury claim despite pleading of negligence.
July 24, 2009

On July 15, 2009, in the case Economical Mutual Insurance Co. and Aviva Canad Inc. v. Doherty, 2009 BCSC 959, a case argued by Whitelaw Twining's own Nigel Beckmann, the BC Supreme Court held that the insurers had no duty to defend their insured, Mark Doherty, in a personal injury action commenced by Clark Brolly. Mr. Brolly alleged that he had been kicked in the head by Mr. Doherty during an amateur soccer match in North Vancouver in 2006.

The amended Statement of Claim plead that Mr. Doherty had intentionally kicked Mr. Brolly, or in the alternative, that Mr. Doherty had negligently struck Mr. Brolly in the head. The pleading purported to provide particulars of the negligence. Mr. Justice Myers dwelt on the term, recklessness, which was the essence of one of the particulars plead. Mr. Doherty's position was that it was synonymous with gross negligence and that gross negligence was still negligence. Mr. Justice Myers disagreed, finding that the pleading must be construed to mean that Mr. Doherty intentionally kicked the plaintiff in the head, knowing of the risk of injury but not caring about it. Given this finding, the court granted the declaration that the insurers did not have a duty to defend and awarded costs.