Leavitt v. Hooper, 2012 NBQB 74

The plaintiff Leavitt was injured in a motor vehicle accident with the defendant Hooper, who admitted liability. Shortly after the action was commenced, Leavitt’s Section B insurer, Aviva Canada Inc. (“Aviva”), ceased paying Section B benefits to Leavitt after 104 weeks once it determined that Leavitt no longer qualified for benefits. Hooper (in effect, AXA Insurance Canada) (“AXA”) claimed contribution for the weekly indemnity benefits from the date Aviva terminated benefits and for future benefits.

The decision concerns a motion by Hooper to amend a third party claim against Aviva to add a claim for damages for intentionally causing economic loss allegedly suffered because of Aviva’s “unlawful breach of contract with its insured” by not continuing the weekly indemnity payments. Aviva brought a cross-motion to dismiss the third party claim, claiming that the tort of unlawful interference with economic interests could not be engaged through the third party claim. Aviva sought summary judgment to have the third party claim dismissed.

The court found that Aviva committed no illegal or unlawful act; rather Aviva was at liberty to dispute entitlement after the initial 104 week period, meaning there had been no economic loss. Further, the court found that Hooper was not insured by Aviva and was not party to the contract between Leavitt and Aviva. The court ultimately granted summary judgment to Aviva, stating Hooper had no right of action against Aviva as Aviva was not liable to her or her insurer.