Court denies abused woman’s indemnity claim

Husband lights wife and house on fire

Ontario law allows property insurers to deny innocent victims of spousal abuse recovery for property damage caused by the intentional acts of the abusers, according to recent judgment from the Ontario Superior Court of Justice.

Justice Ed Morgan dismissed Wieslawa Soczek’s claim for indemnity against Allstate Insurance Co. of Canada after her husband burned down their house when he doused her with gasoline and lit it in an attempt to kill her. Soczek was later convicted of attempted murder and is currently serving a 12-year prison sentence.

Soczek, who was severely injured, sued Allstate, which had insured the couple’s home. The policy did not cover her injuries, and she limited her claim for damage done to the house.

The policy contained a standard form exclusion precluding coverage for damage “resulting from any intentional or criminal act by any of the insured.” As co-owners of the house, both Soczek and her husband were named as insured.

Despite Soczek’s i nnocence, Allstate t ook t he position that her husband’s behaviour precluded her from recovering under the policy. Alf Kwinter of Singer Kwinter Lawyers in Toronto, who represented Soczek, maintained t hat applying the exclusionary clause would be entirely unfair: his client was not only blameless, but was herself a victim of the wrongdoer.

Morgan, albeit reluctantly, sided with Allstate and dismissed the case. He noted that B.C., Alberta and Quebec had prohibited the in- clusion of this exclusionary clauses in policies of insurance.

“Unfortunately, for the Plaintiff, Ontario has not followed the lead taken by those other provinces in remedying a fundamental inequity that exists in many insurance policies,” Morgan wrote in his reasons. Yet the law as interpreted by the Supreme Court of Canada three decades earlier compelled him to rule in Allstate’s favour.

But Morgan refused to award costs to Allstate, an award that usually follows on success in litigation. He characterized Allstate’s “corporate conduct” as “less than admirable.”

“Several provinces have intervened to protect innocent co- insured and have legislated this type of exclusionary clause out of existence,” he wrote.

“And yet Allstate continues to capitalize on it in those jurisdictions that have not seen fit to extend legislative protection to an innocent consumer such as the Plaintiff. This case graphically illustrates the compounding of injuries which Allstate’s policy i mposes on victims of domestic violence.”

Neither Allstate nor the company’s lawyers returned calls. But Allstate did tell CBC News, which had earlier uncovered several cases in which a spouse set fire to a shared property, that it was “willing to review its policies” in these types of cases.

Kwinter is not impressed. “The day before Allstate said this, they had my client in court,” he says.

The lawyer is also pessimistic that Ontario will change its law.

“Given that in Ontario the insurance lobby is so strong, as evidenced by the terrible erosion of car accident victims’ rights, I would say that this would be very low on the government’s agenda,” Kwinter said.