Broadly speaking, over the past ten years, the media has increased its coverage and focus on personal injuries sustained in sports, both professional and amateur.  In conjunction, health professionals have cautioned the public about the dangers of sports injuries and the courts have scrutinized the legal implications of personal injuries sustained during organized sports.  As a certainty, when personal injuries are sustained in sport, various parties may be implicated.  In many instances, a plaintiff claims that he or she sustained personal injuries due to a fellow player’s conduct.  However, in addition to such a claim, the plaintiff may claim against the organization which sponsored or coordinated the sports activity or the party who supplied and maintained the sports facility.  It comes as no surprise that these parties often hold insurance policies and as a result, there has been litigation concerning when insurers have a duty to defend these insureds.

A review of recent case law identifies at least two themes or pertinent issues concerning insurance law and coverage for sport-related personal injuries.  First, the case law indicates that personal injuries sustained during sports will likely involve overlapping insurance coverage from several insurers, triggering the prospect of contribution.  Second, the case law indicates that careful consideration must be given as to whether a sport-related injury constitutes an intentional act on the part of a party defendant (e.g., a fellow sport participant who allegedly inflicted the plaintiff’s injury).

The likelihood and implications of overlapping insurance coverage are effectively illustrated in a 2007 decision of the Ontario Court of Appeal: Canadian Universities Reciprocal Insurance Exchange v. CGU Insurance Co. of Canada, 2007 ONCA 650 [Canadian Universities].  In Canadian Universities, supra, an individual was injured while sparring informally with a classmate after a judo class coordinated by the University of Windsor Judo Club.  The University had provided the Club with access to its facilities to conduct classes and other activities.  The insurer for the University, the Canadian Universities Reciprocal Insurance Exchange (CURIE), settled the matter; however, CURIE sought contribution from the insurer for the Ontario Judo Black Belt Association (Judo Ontario).  Judo Ontario was a governing body for judo clubs in Ontario, and it was comprised of both individual and organizational members.  Interestingly, the Club was a registered member of Judo Ontario during the academic year preceding the sparring incident, but the Club had not paid its registration fees for the academic year during which the sparring incident took place.

At the superior court level, the Court held that CURIE was not entitled to contribution from Judo Ontario who was insured by CGU Insurance Co. of Canada (CGU).  CURIE contested this finding, and the principal issue on appeal was whether the University of Windsor Judo Club was a “member club” of Judo Ontario.  If it was a member club, coverage was available under Judo Ontario’s CGU policy.  The Ontario Court of Appeal examined the Bylaws governing Judo Ontario and noted that under these Bylaws, members remain members unless they resign or are suspended or expelled.  None of these actions had been taken by any of the relevant parties.  The Court of Appeal held that despite the Club’s failure to pay its registration fees to Judo Ontario for the relevant academic year, the Club remained a member of Judo Ontario, although not a “member in good standing”: Canadian Universities, at para. 25.  Overall, the decision in Canadian Universities illustrates the fact that actions for sport-related injuries are generally multi-party claims.  In advancing or defending such an action, careful consideration must be given to implicated parties and insurers.  It is noteworthy that in addition to the University and Judo Ontario, this case implicated two instructors who facilitated and/or supervised the judo class.  At trial, in addition to the University, the superior court apportioned liability against these individuals, who were covered under the CURIE policy; this finding was not challenged on appeal.

The implications of multi-party litigation are further illustrated in a recent decision of the British Columbia Court of Appeal: Saanich (District) v. Aviva Insurance Co. of Canada, 2011 BCCA 391 [Saanich].  More interestingly, this case highlights potential insurance complications for sports facilities which coordinate more than one activity at a time.  In Saanich, the B.C. Lacrosse Association entered into a rental agreement for a facility operated by the District of Saanich.  In addition to providing the lacrosse association with access to the facility for lacrosse activities, access was provided for dog obedience classes.  In the course of attending the facility for a dog obedience class, the plaintiff was allegedly hit on the head with a lacrosse ball and suffered personal injuries and damages.  Aviva had issued an insurance policy to the B.C. Lacrosse Association covering bodily injury “arising out of lacrosse activities”, and the District of Saanich was an additional insured for “lacrosse activities”: Saanich, at paras. 6-9.  Aviva appealed the lower court’s ruling that it had a duty to defend the District of Saanich, and as a result, the Court of Appeal interpreted the policy and whether the liability of Saanich “arose out of lacrosse activities”.  The Court dismissed the appeal, ruling the lower court appropriately held that there was an unbroken chain of causation, potentially engaging the liability of Aviva vis-à-vis the District of Saanich.

The second pertinent issue amongst sport-related insurance coverage is whether a sports injury was caused by an intentional act on the part of a party.  This issue is generally at the forefront of cases where in the course of playing a contact sport (e.g., hockey, football, soccer), it is alleged that a player deliberately or intentionally harmed another player.  This issue was recently canvassed in Economical Mutual Insurance Co. v. Doherty, 2009 BCSC 959 [Doherty].  This case concerned injuries sustained by the plaintiff in the course of a soccer game coordinated by the B.C. Soccer Association.  As with the other cases discussed, there were several parties and several insurers involved.  Economical Mutual Insurance Co. had issued a homeowners’ policy to Mark Doherty, the individual who allegedly kicked the plaintiff in the head during a soccer game, and Aviva had issued a commercial general liability (CGL) insurance policy to the B.C. Soccer Association.  Broadly speaking, both insurance policies provided coverage for liability arising out of “accidents”, but not intentional acts.  Both Aviva and Economical petitioned the Court for a declaration that they did not have a duty to defend the action brought against Doherty and the B.C. Soccer Association.

After careful analysis, the Court granted the insurers’ petitions because “the claim is one for an intentional act and that act is not an accident or occurrence under either of the insurers’ policies”: Doherty, at para. 44.  Originally, the Statement of Claim was only advanced a claim for the intentional tort of assault; however, later it was amended to allege negligence, in the alternative.  In accordance with the applicable law, the Court examined the “true nature” of the claim. See Progressive Homes Ltd. v. Lombard General Insurance Co., 2010 SCC 33.  The Court held that the particulars of negligence plead by the plaintiff in actuality, did not speak to negligence and the plaintiff’s use of the word “negligence” was not determinative: Doherty, supra at paras. 22, 38.  From a plaintiff’s perspective, this case demonstrates the importance of careful pleading to bring oneself within a defendant’s insurance policy.

The circumstances in Doherty, can be contrasted with those in Thorne v. Royal & Sun Alliance Insurance Co. of Canada, 2003 NBCA 61 [Thorne].  The insurance policies in Doherty did not provide coverage for intentional acts, but that is not always the case.  Indeed, as in Thorne, supra, CGL policies may include exceptions to exclusion clauses pertaining to intentional acts.  In Thorne, the plaintiff brought an action for injuries he allegedly suffered in the course of a hockey game when an opposing player, Bradley Thorne, struck him in the face.  The insurer, Royal Sun Alliance, appealed the lower court’s declaration that it had a duty to defend the plaintiff’s action against Thorne because he had engaged in an intentional assault and battery.

The Court of Appeal noted that the insurance policy contained an exclusion clause pertaining to “bodily injury” expected or intended from the standpoint of the insured.  However, this exclusion clause went on to prescribe an exception for “bodily injury” resulting from the use of reasonable force to protect persons: Thorne, at paras. 8-9. In support of the underlying motion, Thorne had filed an affidavit in which he deposed that he struck the plaintiff in self-defence.  The Court of Appeal held that the lower court erred in refusing to consider this affidavit evidence.  The Court of Appeal considered the issue of “whether the Policy imposes upon Royal a duty to defend an action for compensatory damages for bodily injuries resulting from intentional acts committed in justifiable self-defence”: Thorne, at para. 16.  The Court reasoned that exceptions to exclusion clauses serve “to preserve within coverage some aspect of one or more of those sources of liability” and as a result, the exception to the exclusion clause in Thorne, supra, preserved coverage for a risk that would otherwise have been removed.  In a nutshell, because Thorne asserted that he acted in self-defence, the Court of Appeal upheld the lower court’s ruling that Royal had a duty to defend the plaintiff’s action against Thorne.

This article is not intended to provide a comprehensive review of the law pertaining to sport-related injuries and insurance coverage.  Rather, it seeks to provide insurance professionals and lawyers with an overview of some of the issues and themes illustrated in recent case law.  The cases discussed in this article illustrate several themes which may be of assistance in evaluating a claim involving organized sports, especially those taking place in a facility.  Multi-party litigation is almost inevitable due to the involvement of various parties in the hosting, coordination and provision of organized sports in Canada.  In certain circumstances, as in Canadian Universities, supra, a plaintiff may advance a personal injury claim against fellow sport participants, coaches, facility providers, and any implicated sport organizations and/or associations.  The involvement of numerous parties increases the likelihood that more than one insurance policy will be implicated, and as always, careful consideration is required on the part of legal counsel in commencing, advancing and/or defending a claim for sport-related personal injuries.  Consideration must be given to the sufficiency and nature of the pleadings vis-à-vis the insurance policies, as well as whether intentional conduct by a fellow sport participant caused the plaintiff’s injuries.