In TD General Insurance Company v. Intact Insurance
Company, 2019 ONCA 5, the Court of Appeal considered whether
one insurer's "other insurance clause" could trump
the other's. Both policies provided coverage for the loss
and contained identically worded clauses making their policies
excess to any other insurance which applied to the loss. The Court
found that the identical clauses made the two policies
irreconcilable and so the two insurers must share the burden
equally under a coordinate obligation to make good the loss.
The Loss, Policies and Lower Court's Decision
The loss in this case arose out of a boating accident. The
injured passenger sued the driver of the boat who was covered by
two policies of insurance — the boat owner's TD policy
and the driver's own homeowner's policy, issued by Intact.
Both policies contained an "other insurance clause" that
provided:
