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[DeanDickens]

While it is quite obvious that it is generally desirable to tommy hilfiger bucket hat have the risk borne (and therefore premiums paid for comprehensive coverage of all involved in a project) by the most appropriate party to achieve the overall benefits mentioned just above (ed. premium costs and avoiding litigation confusion) this benefit cannot in itself change the interpretation which would otherwise be given to a contract of insurance. In that case, the unnamed subcontractor supplied steel beams to a housing project and one of its workers started a fire. The trial judge ignored the Commonwealth Construction line of reasoning and focused on the fact that the beams damaged in the fire constituted other property, which would be covered by the policy.

In Active Fire Protection, the contractor entered into a contract with the Town of Whitby to renovate a building. The contractor then entered into a sub-contract with BWK for the installation of sprinkler equipment. During construction, a flood occurred which BWK admitted was caused by its negligence. The contractor paid the Town for the damage and then brought an action against BWK to recover the amount paid to the Town. BWK argued that the contractor's action was barred because of its contractual obligation to insure. Relying on Madison cp company goggle hat [supra], the Court of Appeal held that the contractor's commitment to obtain insurance acted as a voluntary assumption of the risk of loss or damage caused by the perils to be insured against and as a result, the contractor was barred from bringing this claim against the sub-contractor BWK.

The Court held, however, that the original structure was covered. The Court of Appeal relied on the general principle 5 panel hat that a builder's risk policy is insurance from which owners, contractors and subcontractors can derive comfort and security when participating in these types of projects. All parties involved in the construction of the project therefore had an insurable interest not only in the addition being undertaken to the existing structure but the existing structure itself. If the damage was caused to an entirely separate existing structure, the result would likely differ. In light of all the above cases, the emerging trend appears to be that in any case where there is a builder's risk policy, and where a loss occurs during construction, the insurer will typically not be able to bring a subrogated claim against contractors or sub-contractors involved in supplying materials or labour to the project.

Likewise, all such parties will be afforded coverage as insureds under baker hat the policy. The overriding rationale for the prohibition of subrogation by a builder's risk insurer against those involved in a construction project is linked to public policy considerations involving economics and business efficacy. The reasonable expectation of the parties who entered into the builder's risk policy was to insure the property without regard to which contractor or subcontractor was responsible. By upholding a waiver of subrogation in construction cases, the courts intend to promote insurance funds being made available quickly following a loss, to limit the amount of litigation that arises from a loss, and to avoid the need for each and every contractor and sub-contractor to purchase its own insurance for the value of the entire project.

The product of the work made necessary by the faulty or defective design was the steps which were required to be taken to replace the totally failed structure with a new bridge. The entire loss, but for the rails, was be considered the cost of making good faulty or defective design. The word design in the context of the case comprehends the totality of the scheme, plans and specifications for the bridge. The design was faulty in that the bridge was unstable under its own dead weight. Damage was caused to a steel roof truss when it fell to the ground in the course of being lifted into place during erection. A procedure had been developed to erect and install the truss. The trial judge found that the erection procedure was part of the design and that the cause of the accident was faulty erection procedure.

Both cases recognize the distinction to be drawn between "designing" and "design," and strongly suggest that only in the case of the former, i.e., "designing," does negligence or blameworthiness constitute an essential factor& But here the design itself was "flawed." It was based on Mr. Leighton's assumption berghaus hat that the substratum of the fill was on the colluvium and not on lacustrine soils. That assumption was a "mistake in judgment" based on an "incorrect belief as to the existence of matters of fact," and even though he may not have been negligent, a question which I do not find it necessary to decide, it was an "error in design" within the meaning of the policy. Wilson J. agreed with the insured that the results in Queensland and B.C. Rail were distinguishable on the basis that the impugned designs were inadequate to meet the demands of foreseeable circumstances.