Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: Mahoney v. Cumis Life Insurance Company, 2011 NSCA 31

Date: 20110330

Docket: CA 327577

Registry: Halifax

Between:

                                              Mary Isobel Mahoney

Appellant

                                                            and

                                        Cumis Life Insurance Company

Respondent

Judge:                   The Honourable Justice Joel Fichaud

Appeal Heard:      March 16, 2011

Subject:                 Preliminary Determination of Law - Rule 12

Summary:             Mr. Mahoney, who had a pre-existing heart condition, was in a motor vehicle accident and died of a heart attack shortly after.  His widow sued for recovery on an accidental death insurance policy.  The insurer applied under Rule 12 for a determination that the death was not accidental.  The Chambers judge held that the death was caused partly by the pre-existing heart condition and was outside the policy’s definition of “accidental death”.   He dismissed Ms. Mahoney’s action.  Ms. Mahoney appealed.

Issues:                   Was the judge entitled to make a finding of cause of death in an application under Rule 12?

Result:                  The Court of Appeal agreed with the judge’s interpretation of the insurance policy. Rule 12 deals with a determination of law and did not entitle the judge to find as a fact what caused the death.  The Court of Appeal allowed the appeal in part.