Clément Lucas

Clement LucasBorn in France, Clément Lucas obtained his Masters in law degree from the University of Paris X – Nanterre in 2002. Admitted to the Bar of Paris in 2004, he practiced law for seven years in France.

Aspiring to new horizons, he moved to Québec in 2010 and decided to settle down in Montréal. Once he was admitted at the Québec Bar, he began his practice at de Grandpré Joli-Cœur in 2011. He is a member of the condo law group (divided and undivided).

Having had an important legal practice in real estate law in France, during his various professional experiences, Me Lucas has been the legal representative of several condominium corporations and condominium managers. He has also been a lecturer at the University of Paris II – Panthéon Assas.

Misguided Insured, the insurer must pay!

February 11, 2017 - On November 11, 2016, Honorable Pierre-A. Gagnon, c.q j., rendered an interesting decision on insurance matters. Although his decision is not strictly related to co-ownership, it could be an eye opening example for several co-owners or syndicates. Here is the situation.

The owners of a home purchased home insurance under a “standard” "multi-risk" policy. The policy took effect on November 30, 2007 for a period of two years. It was renewed four times.

On 22 May 2013, water entered the home from the top of the wall at the junction of the roof at the front of the residence. Water accumulated because the roof drain became clogged due to tree debris (branches and leaves) following heavy rains and winds the previous weeks. The water rising on the flat roof eventually overflowed the wall and caused the infiltration.

On the following day, the insured undertook emergency work and the necessary repairs and presented a claim to their insurer. The latter replied that the policy did not cover such losses and, in particular, that it did not include "water damage" protection, provided for in a separate rider.

There were two questions before the Tribunal: was the loss covered and, if not, whether the insured had been adequately counselled?

The Tribunal found that the insurer was correct in its refusal of coverage, pointing out that the policy significantly limited coverage when the loss resulted from water damage.

However, in reviewing the underwriting process and renewals of the policy, the Tribunal found that the insured had been inadequately counselled, resulting in the liability of the insurance agent and, consequently, that of the insurer.

The Tribunal pointed out that the damage insurance agent is an insurance representative and that he has a legal duty to provide information and advice. The court also noted that he must act as a conscientious advisor, enlightening his clients on their rights and obligations and giving them all the necessary or useful information.

The Court goes on to state: "In practice, once the insurance agent has requested the information from his client, he must offer him the available coverage commensurate to the needs stated by his client. He must know the available coverage and riders and act in the manner an insurance consumer can reasonably expect from an advisor ".

The Tribunal, based on the evidence, found that this had not been the case at the time of subscription. In addition, he noted that the policy had been renewed on several occasions and, in that regard, indicated that under the Law, the damage insurance agent must take the necessary steps to ensure that the coverage  offered meets the client's needs at the occasion of the  renewal of  an insurance policy. Thus, he emphasized that at each renewal, the insurer, through its agents, had to ensure that the guarantee offered by the policy always met the needs of the insured.

"These were as many occasions that SSQ failed to verify that the policy was well suited to the needs of its clients."

He concluded that the insurer's agents had breached their obligations and had engaged the liability of their principal, namely the insurer. On these grounds, the Court awarded in part the amount corresponding to the cost of the damages, deducting therefrom the premiums which they should have paid had they been adequately covered.

The decision can be consulted by clicking on this link: Parent c. SSQ, Assurances générales, 2016 QCCQ 12798 (CanLII).

Clément Lucas, Lawyer
DE GRANDPRÉ JOLI-COEUR
2000, avenue McGill College
Bureau 1600
Montréal (Québec)  H3A 3H3
Tél. : (514) 287-9535
Fax : (514) 499-0469
Courriel : c.lucas@djclegal.com

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