Pubdate: Wed, 13 Mar 2013 Source: Hamilton Spectator (CN ON) Copyright: 2013 The Hamilton Spectator Contact: http://www.thespec.com/ Details: http://www.mapinc.org/media/181 Author: Joan Walters LICENSED POT USER DOES SLOW BURN OVER RULING In Dispute With His Insurance Company Over the Value Marijuana Plants Stolen From Yard A Hamilton judge has ruled against a licensed medical marijuana user who claimed his insurance company did not reimburse him for the full value of marijuana plants stolen from his yard. It's the first known case of its kind in Canada. Darren Stewart, licensed by Health Canada to grow weed for his own medical use, wasn't satisfied with the $6,000 that TD General Insurance Company paid him in 2009 for six stolen plants and $5,000 in 2011 for five plants taken from his property in Rockwood. "When I called the insurance company, I made sure I was covered and they said yes, anything stolen on my property is covered," Stewart said in an interview. "But the claims adjuster said the plants are part of the landscaping, and that's a maximum of $1,000 a plant. They're worth way more than that." Stewart filed court claims for higher compensation than what TD Insurance paid, seeking $26,000 for the first six plants and $19,000 for the second five. He also claimed a total of $360,000 for breach of contract, mental stress and physical pain, breach of fiduciary duty and infliction of mental and physical suffering. "There's no way these are just part of the landscaping; you don't beautify your yard with marijuana plants," Stewart said. "They're personal property and they're going to be consumed, just like any other drugs." Under many homeowner policies, for example, the replacement cost of an expensive pharmaceutical - such as a cancer drug that costs $100 per capsule - would be covered. Stewart uses about 6 grams of marijuana a day for severe residual pain from a 1997 car accident and subsequent surgery. His lawyer Keith Millikin said he took the position that "each one of the plants had a yield of X number of grams of marijuana" and the insurance company should have compensated him for the full value of the medicinal end product. But Superior Court Justice James A. Ramsay agreed with the insurance company, ruling that if marijuana is covered anywhere, it's under the trees, plants and shrubs section of the TD policy, with the payout capped at $1,000 per plant. "I do not accept the plaintiff's restrictive definition of 'landscaping,'" Justice Ramsay also noted. "The dictionary definition of landscaping does not necessarily exclude plants that were laid out for reasons other than aesthetic." Many homeowner policies specifically exclude marijuana, but the TD policy only excludes illegal grow-ops. Millikin said an appeal is being considered on the ruling, issued last week. He said research for the case has not turned up any similar cases coming to Canadian courts. There have been American cases of court claims against insurance companies, but in that country, the legalities of medical marijuana are different. Many states have passed laws enabling medical marijuana possession and the growing of marijuana for personal use. But federal law trumps state law, and insurance companies deny compensation for stolen plants on grounds that weed is a non-insurable, illegal substance. - --- MAP posted-by: Jay Bergstrom