What is the test for determining whether an amended pleading contains allegations which fall within the insuring agreement?
New Brunswick, Canada
The following excerpt is from Cook et al v. Aviva Insurance, 2017 NBQB 10 (CanLII):
As was set out in Progressive Homes v. Lombard, supra, I should first determine if the amended pleading contains allegations which fall within the insuring agreement. Then I must look to see if any exclusion in the policy would apply. The onus is on the insured in the first step of the analysis and the onus shifts to the insurer to establish if exclusion applies. At that stage, the onus would then shift back to the insured to establish if an exception to the exclusion exists.
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