2012 END OF WORLD !!

Remember Hurricane Katrina? In addition to the physical devastation and loss of lives, it resulted in an insurance nightmare for many business owners and homeowners, because their insurance policies did not cover damages caused by hurricanes, tornadoes, etc. As a lawyer, I read a lot of insurance policies. Hurricane Katrina is an extreme example, but it illustrates a scenario I see all the time in my practice: many people do not realize until it is too late that their insurance policies are inadequate or unequipped to shield them from financial losses or other damages.

Almost every adult owns some type of insurance policy. Vehicle, homeowner, medical, directors & officers liability, commercial property, professional liability and travel insurance are but some examples. Other than having a general understanding of the type of coverage we have and the coverage amounts (and, of course, the premium amount), many of us don’t know how to read and understand our policies and grasp how they work in the event that we need to rely on them.

The following is some basic information that will assist you if you are a policy owner or if you are contemplating purchasing insurance.

1. What documents constitute an insurance policy?

Usually, when you take out insurance, your insurance company will provide you with an insurance certificate or “declarations” page. This lists the items insured, and the amounts. The declarations may also refer to certain policy “exclusions.” However, as a policy owner you really should be asking the insurer for a copy of the complete policy, and any policy booklet that they may issue as a companion interpretive guide. In the event that you need to rely on your policy, the Declaration document is not helpful. Furthermore, reviewing the entire policy gives you an opportunity to understand or identify any “gaps” in coverage – i.e. matters that are not covered by your insurance and for which you may want to consider obtaining extra coverage through another insurance company.

2. Do you know what your policy “limits” are, and are they sufficient?

The amount of insurance coverage you obtain is called your insurance limits. If you own a vehicle, you will have purchased liability insurance with limits of $500,000, $1,000,000 or $2,000,000, this means that if someone sues you as a result of a car accident, your insurance policy will respond to that lawsuit to the extent of the limits you have purchased. These limits are sufficient for most people, however, did you know that if you are injured in a car accident and you sue the at-fault driver who only has limits of $500,000, yet your damages far exceed that amount, and then there is a clause in your policy that will allow you to access your own policy for the shortfall? If the liability limits in your motor vehicle insurance policy is $1,000,000, then there may be an extra $500,000 available to you. That is where having an understanding of the importance of the limits of your policy will assist you when you are making the decision to purchase insurance.

It is important to discuss with your broker all of the possible circumstances that may result in you having to access your insurance policy. This discussion will dictate the amount of insurance coverage you ultimately decide to purchase. If you do not purchase insurance with sufficient limits, then, in the case of liability insurance for example, if you are sued for an amount that exceeds the limits of your policy, you will personally be on the hook for the balance – which means that your assets and income may be vulnerable to garnishment. In the case of property insurance, you will have to personally pay for any damages that are not covered by your policy – if these damages are excessive or exorbitant, the financial consequences may be disastrous.

3. What are “Exclusions”?

In my experience, it’s the exclusion clauses that leave policyholders vulnerable and most policyholders do not read them. I draw your attention once again to Hurricane Katrina. Exclusion clauses identify the events or circumstances that will result in there being no coverage under the policy. For example, residential and commercial property insurance policies may contain an exclusion for theft caused when the premises remains unlocked or unoccupied. Do you run a business out of your home? If so, most homeowner’s policies will not cover any damages caused by or a result of commercial activities. Many professional liability policies contain exclusions for damages caused by fraud or dishonest conduct. If you own a large commercial building, your property insurance may contain exclusion for certain types of boiler and furnace mishaps (i.e. those caused by wear and tear, for example). And most travel insurance policies exclude health care coverage for illnesses causally related to pre-existing or prior medical conditions, even where those conditions have been dormant for some time.

The insurance company and broker have a duty to draw all policy exclusions to your attention. Many insurers accomplish this task by sending you a letter at the outset of the policy period, advising you to review the exclusion section of the policy. Some insurers do not do this. Regardless, in order to protect yourself, when you take out your policy, ask the insurer and your broker (if you are dealing with one) to identify all the policy exclusions. The exclusion clauses are often densely worded and convoluted. Therefore, if you do not understand them, you must point advise your insurer and ask for an explanation. If you think one of the exclusions may even potentially affect you in the future, you should speak to your broker about obtaining additional coverage for the excluded item from another insurance company, or, you may ask the insurer if you can purchase an enhanced form of coverage. For example, if you own a lakefront cottage and are worried about the potential for water leakage into the basement, review your policy carefully to ensure that this type of water damage is covered, if it is not covered, you will want to purchase supplemental coverage.

4. Policy Conditions

Policy conditions are pre-requisites to coverage. They are events or conditions that are necessary to keep the insurance in place. Payment of the premium by a certain date is a simple example. Another is maintaining a security alarm as a pre-condition to insurance against losses caused by theft. Other conditions relate to the policyholder’s obligations once a claim arises – that is, the reporting requirements. The reporting requirements dictate when and how you should report a claim to your insurance company. Some policies require that you report the claim in writing and within a certain period of time. In some policies, coverage will be triggered by notifying the insurer by phone – as many of you who have been in car accidents know.

There is almost always a time limit within which you can report a claim. Some insurance policies spell this out explicitly in the policy, others simply say that notice to the insurers must be given after an incident “forthwith” or “immediately.” Regardless of the wording used, if you suspect that you have a claim that may be covered by your policy, you should report it.

Policy conditions should be regarded in the same manner as exclusions, since failure to abide by them will result in a lack of coverage. Therefore, it is important that you have a complete understanding of what they are when you purchase your policy.

5. Insurer’s Obligations When a Claim Arises

Insurers have a duty to deal with you in good faith. When you make a claim under your policy, your insurer has a duty to assist you in processing your claim, to act in your best interests and to not take an unreasonable position on coverage. If the insurer makes a coverage decision that has no basis in the policy, then it may be subject to a complaint to the Financial Services Commission of Ontario, or in a lawsuit it may be vulnerable to a claim for punitive or aggravated damages.

6. The Role of the Broker

I have previously written on this site about the role and obligations of your insurance broker. Having an understanding of how your policy works and your policy exclusions allows you to have a meaningful discussion with your broker about what your insurance needs really are. Some of the additional questions that may arise out of this discussion, and which may result in your decision to purchase additional or enhanced insurance, are listed below.

• Do you own property outside of Ontario or conduct any business activities outside of Ontario?


• Do you conduct any business activities in your own home?


• Are you a voluntary or paid officer or director of a corporation? Are you aware that you may be sued in this capacity and that insurance may be available to protect you in this instance?


• Does your workplace medical-dental policy provide sufficient coverage for all possible health-care contingencies?


• Do you travel regularly outside of Ontario and/or internationally? Are you over the age of 65 and travel regularly?