When attending a concert or another form of live entertainment or event, it is easy to overlook the amount of parties involved in putting on the show. Therefore, if an individual is injured at a sporting or music event, for example, it may be difficult to determine who has a duty to defend a personal injury claim relating to occupier’s liability.
In a recent decision from the Ontario Superior Court of Justice, a concertgoer claimed they were injured by security at a 2016 concert in Ontario. Since both the concert promoter and the concert security company had insurance policies in place, a dispute arose over which party had a duty to defend the action, or whether the duty should be shared between them.
Concert attendee is injured by security
In the case of Live Nation v. Aviva, the plaintiff attended a concert on September 1, 2016, at which Florida Georgia Line played at Toronto’s Budweiser Stage. The venue is located on land owned by the Province of Ontario. However, it is operated by the applicant promotion company, “LN.” For all intents and purposes, LN is responsible for the day-to-day operations of the venue. For the event in question, LN contracted security for the concert to a company referred to as “NWP.”
During the concert, an attendee became unruly and was removed from the event. Unfortunately, while removing the unruly concertgoer, security struck and injured another concert attendee, “TN.” TN commenced an action against LN, NWP, and others. While the Statement of Claim contained allegations of overcrowding at the venue and over-serving of alcohol, it was clear that the essence of the claim related to TN being struck by NWP personnel during the removal of an unruly patron.
Promoter and security company have their own insurance policies
The Court explained that the contract between LN and NWP required NWP to secure its own liability insurance. In this policy (“the Aviva policy”), LN was named as an additional insured. The LN policy stated that the Aviva policy must name LN as an additional insured, specifying that:
“Supplier shall procure and maintain, as applicable, during the Term, all customary and prudent insurance coverage naming the LN Parties as Additional Insured with respect to the operations of the Named Insured, including: …
(ii) Commercial General Liability insurance subject to limits of not less than $1,000,000 per occurrence for any bodily injury and/ or property damage claims, ….
Policy (ii) shall cover assault and battery and does not expressly exclude abuse and molestation. Coverage naming the Additional Insured shall be on a primary basis irrespective of any other insurance, whether collectible or not, to the extent of Supplier’s liability as described in this Agreement. …”
Therefore, NWP was responsible for carrying its own insurance for liability, including assault and battery. LN was named as an additional insured, and the policy was intended to cover LN on a primary basis regardless of any other insurance policies in place.
Despite this, Aviva claimed that LN should be responsible for 50% of the costs related to defending the action because LN had its own insurance policy (the “Starr policy”) which Aviva argued should provide coverage.
Competing policies claim they are each excess
LN claimed that the Starr policy had a self-insured retention of $1 million, which was essentially considered a deductible, which LN indicated had to be paid in order for the policy to be activated. However, the Court rejected this argument as it noted that other courts have found that “self-insured retentions do not mean that an insured has no coverage.” Instead, “as a matter of contract, the insured has agreed to assume a certain amount of the insured risk.”
LN also argued that the Starr policy contained language that it was “excess over any of the other insurance whether primary, excess, contingent, or on any other basis.” This resulted in the Starr policy stating it cannot be activated until coverage under the Aviva policy has been totally exhausted.
The Court found itself dealing with two competing policies that both claim to be excess, meaning that they each require the other policy to be exhausted before their coverage kicks in. However, the Court explained that the language of the Aviva policy and the general commercial concept of adding parties as additional insured parties allowed it to reconcile this issue. The Aviva policy contained an additional provision which stated:
9) Other Insurance
If other valid and collectible insurance is available to the Insured for a loss we cover under Coverages A, B, D or F of Section III, our obligations are limited as follows:
a) Primary Insurance
This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.
The language contained in the above section of the Aviva policy stated that the policy was the primary policy, unless NWP has also been added as an additional insured in another policy. However, this was not the case. LN was named as an additional party under NWP’s Aviva policy, but not the other way around.
The Court noted that it is common in contract law for a party who has been hired to do work to be required to carry their own liability insurance. In this case, LN hired NWP to perform security work at the event, which had the potential to create liability. The Court concluded that it made sense for NWP to assume the risk and protect LN from risks arising out of NWP’s operations. As a result, the Court held that Aviva and LN did not have an obligation to fund a defence for the claim.
The Personal Injury Lawyers at Tierney Stauffer LLP Represent Clients in Occupier’s Liability Claims
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