Home Sweet Home: What Constitutes 'Living In The Same Household' In A Home Insurance Policy

In the recent decision in Ferro v. Weiner ("Ferro"),1 the Court of Appeal for Ontario provided clarity as to what constitutes "living in the same household" in a home insurance policy.

Background

Enid Weiner owned a house on Lake Eugenia, which was used as a cottage until the late 1980's when it became Enid's sole residence (the "Property"). When Weiner moved to a nursing home around 2008, her three adult children and their families used the Property as their vacation home.

The Property was covered by an Intact Insurance Company ("Intact") insurance policy in which Weiner was listed as the sole owner of the Property (the "Intact Policy"). The Intact Policy provided coverage for all of Weiner's relatives "while living in the same household" as her. This coverage included liability protection from "unintentional bodily injury or property damage" and extended coverage to "not only the insured's primary residence but also the insured's seasonal and other residences".2

In May 2010, a young man tragically drowned while attending a high school graduation party at the Property. At the time of the death, Weiner's adult son Scott, and Scott's daughter were present. Weiner's estate, Scott, his wife, and their daughter were subsequently named as defendants in an action brought by the family of the drowning victim. The plaintiffs' claim was later settled by Scott's insurer, TD Insurance Company ("TD").

The Summary Judgment Motion

TD moved for summary judgment for a declaration that Intact was bound to indemnify and defend the defendants against the claims brought by the plaintiffs. The motion judge granted the motion, and a declaration was provided that Scott and his family were insured under the Intact Policy. Intact was also ordered to indemnify TD for 50% of the value of the settlement with the plaintiffs.

In her analysis, the motion judge found that Scott and his family were part of Weiner's household since they occupied the Property at will, cared for it, and later took an ownership interest in the Property.

Intact appealed.

The Court of Appeal

On appeal, Justice Miller's analysis first turned to the interpretation of the word "household". At the summary judgement motion, the motion judge's consideration of Scott's use of the Property only went to whether he was "living in" the Property. In the context of insurance law, "household" constitutes a type of community, which is evidenced by the "extent to which its members share the intimacy, stability...