Insured surveying firm entitled to coverage under professional liability policy.  

Insured surveying firm entitled to coverage under professional liability policy.

Insurance law – Liability insurance – Exclusions – Interpretation of policy; Settlement.

Monteith & Sutherland Ltd. v. Novex Insurance Co., [2025] O.J. No. 3633, Ontario Superior Court of Justice, August 15, 2025, C.C. Chang J.

The insured land surveying company brought an application for a determination that it is entitled to indemnification by the insurer under a professional liability policy. The insured obtained a professional liability policy from Novex to insure its land surveying operations and a separate policy from Lloyd’s to insure its engineering work.  The Lloyd’s policy excluded coverage for claims arising out of land surveying activities.

The insured was engaged to provide surveying services in respect to a wastewater utilities installation project in Halton Hills. The client put the insured on notice of an intention to claim against it for deficient work.  The client later put the insured on notice of an intention to claim against it for allegedly deficient work respecting an unrelated project in the Port Lands area of Toronto. 

Novex settled the Port Lands claim in the amount of $5 million, being the policy limits. No money had been paid by Novex in respect to the Halton claim, which was settled by the insured. The insured brought an application for indemnity from Novex for the $3.2 million it paid to settle the Halton claim.

The issues before the court were whether the Halton claim fell within the policy’s coverage; if so, whether the policy period overlapped with the Port Lands claim (thereby reducing the amount of coverage available); and whether the insured breached its duty to cooperate under the policy.

The court held the claims fell within coverage. They related to the insured’s land surveying business. The insured was alleged to have failed to correctly measure and mark drilling locations.  The court also held the Halton claim was reported in a separate policy period from the Port Lands claim.  The triggering date was the date the insured was notified of the claim, not the date the insured reported the claim to the insurer.  Finally, the court held that the insured has not failed to cooperate with the insurer sufficient to vitiate coverage.

This case was digested by Cameron B. Elder and edited by Steven W. Abramson of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact them directly at [email protected] or [email protected].