Pizza Pizza Hits Delivery Speed Bump

(Tuesday, December 11, 2007) - Leapin' Lou Ferro, the maverick litigator from Hamilton who has made a career out of dogged pursuit of bad faith claims against insurers, is at it again. Except this time, he's chasing the Pizza Pizza delivery truck. His client, Ursula Prince, got hit by a Pizza Pizza delivery driver. By all accounts, there's a good chance the driver was an independent contractor who owned his own car. So no vicarious liability. But for Ferro, no problem.

Turning Pizza Pizza's promised "30-minute-delivery-or-free" policy on its head, Ferro pleaded that the policy was a material contribution to the driver's negligence because it rewarded speed and penalized tardiness by requiring the driver to pay for the pizza if he didn't meet the deadline. The policy, Ferro pleads, "not only encouraged, but mandated, that [the driver] speed to make a living."

Aviva Insurance, which held Pizza Pizza's general liability coverage, had an exclusion for injuries caused by an automobile. ING covered for "non-owned" automobiles." They had a coverage fight, and both lost. Justice Elliott Allen of the Ontario Superior Court of Justice ruled that ING had to defend Pizza Pizza on the automobile claim while Aviva was bound to defend the "hurry up" allegations. The ruling, then, implicitly recognizes that there's a triable issue that could make warm pizza at your door a bygone.

Julius Melnitzer

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