In Lévesque v. Aviva Compagnie d’assurance générale, 2024 QCCS 1570, the Quebec Superior Court (the “Court”) denied an insured’s claim for compensation of the total loss resulting from the collapse of her cottage.
This decision should encourage insureds to exercise caution when taking out a specified perils policy which, although less expensive than an “all risks” policy, applies only to what is expressly specified in the contract.
The Facts
On April 7, 2019, Catherine Lévesque (the “Insured”) learned from her neighbour that her cottage had collapsed. The next day, she reported the loss to her insurer, Aviva General Insurance Company (“Aviva”).
The insurer mandated claims adjuster Martin Leblanc to establish the cause of the loss. On May 14, 2019, the Insured received a letter from Mr. Leblanc, informing her that Aviva had refused her claim on the ground that the cottage’s collapse was due to the weight of snow that had accumulated on the roof, which was not among the risks covered under her homeowner insurance policy.
The Insured maintained at trial that she had visited the site of the loss in mid-April 2019 and that a huge tree had fallen next to the cottage, near the adjacent shed (which was not destroyed).
Leblanc on the other hand reported that he had commissioned the engineering firm Technorm Inc. (“Technorm”) to determine the cause of the collapse. According to Technorm’s report, which was introduced as evidence, the collapse of the cottage was due to the accumulation of snow and ice water on the roof. The collapse caused by the weight of the snow was not one of the fourteen risks specified in the Insured’s policy.
At trial, Aviva also produced Gaétan Dupuis of Technorm as an expert witness. Mr. Dupuis visited the site on April 10, 2019 (before the Insured’s visit in mid-April). On that occasion, Mr. Dupuis observed a significant snow accumulation of approximately 30 inches on the roof of the shed adjacent to the cottage. In addition, all four slopes of the roof had collapsed inward, indicating that the collapse was due to a “vertical gravitational load” rather than a horizontal one, which could have been attributable to wind rather than snow. By the same token, there were no trees or branches among the debris, thereby eliminating the wind theory.
Mr. Dupuis also reported that he did not see the “huge tree” mentioned by the insured at trial. He also did not see any ice, which fell during the night following the collapse according to the meteorological data.
Finally, Mr. Dupuis opined that certain parts of the cottage affected by rot may have rendered it more fragile and contributed to the collapse. That said, the analysis of this hypothesis would have required further examination.
The Analysis
From the outset, the Court emphasized that the homeowner insurance policy was not an “all risks” policy, but a specified perils policy. The difference between these two types of policies is significant. In the first case, the “all risks” policy applies to all losses, except those specifically excluded. In the second case, the specified perils policy covers only those risks specifically listed in the policy.
As the Court pointed out, the premium associated with a specified perils policy is lower than that associated with an “all risks” policy, given that the insured himself assumes a greater risk. Consequently, the Court must be wary of transforming a specified risk policy into an “all risks” policy.
As for the burden of proof, the Court referred to St-Pierre v. Groupe Sinisco, 2022 QCCQ 5188. In this decision, the Court of Quebec stated that, in the case of “all risks” insurance, the insured must simply prove that property covered by the policy has been damaged to be entitled, a priori, to an indemnity. The onus is then on the insurer to establish that an exclusion applies if it wishes to deny coverage.
In the case of specified perils insurance, the insured must not only prove that property covered by the policy has been damaged, but also that the loss resulted from one of the listed perils.
In this case, the risks specified in the homeowner insurance policy issued to the Insured for her cottage included, but were not limited to, the following:
- The impact of objects striking the exterior of the dwelling or its outbuildings
- Hail
- Windstorms
Based on the evidence adduced at trial, including the opinion and testimony of Mr. Dupuis, the Court refuted each of these hypotheses.
As to the progressive deterioration of the cottage due to rot, the Court emphasized that this was not a risk specified in the policy.
In conclusion, the Court accepted Mr. Dupuis’ opinion that the collapse was attributable to a “vertical gravitational load”, i.e., the weight of snow and ice combined with wear and tear of the supporting materials. The Court stressed that it was the Insured’s responsibility to prove that the collapse due to the weight of snow was one of the covered risks, or that the collapse was the result of another covered risk. According to the Court, the Insured was not able to prove either. It therefore concluded that the collapse was not caused by a covered peril.
Takeaway
This judgment contains a clear application of the burden of proof in specified perils insurance policies. To obtain an indemnity, the insured bears the burden of establishing, on a balance of probabilities, that the loss of the covered property is due to one of the risks listed in the policy. If they fail to do so, the insurer is entitled to refuse to pay. This is a more onerous burden of proof than in the case of “all risks” insurance, where the insured need only establish that a covered property has been damaged to be entitled, a priori, to an indemnity.
