Pubdate: Wed, 13 Mar 2013
Source: Hamilton Spectator (CN ON)
Copyright: 2013 The Hamilton Spectator
Author: Joan Walters


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.
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