VI. selected issues in interpreting insurance policies 4
Automobile Insurance: Who is Covered?
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- Wawanesa Mutual Insurance Co v. SC Construction (ONSC 2012)
- Automobile Insurance: Loss Arising from the “Use or Operation” of a Motor Vehicle
- Amos v. ICBC (SCC 1995)
- Citadel General Assurance Co. v. Vytlingham (SCC 2007)
- Lumbermens Mutual Casualty Co v. Herbison (SCC 2007)
- Russo et al. v. John Doe (ONCA 2009)
- Martin v. Freeze Night Club (ONCA 2013)
- V-Twin Motorcycle School Ltd. v. ICBC (BCSC 2010)
- Whipple v. Economic Mutual Insurance Co (2010)
Automobile Insurance: Who is Covered?BCI(V)A s. 63, Reg 447/83: named insured, members of their household, and persons operating the vehicle with the insured’s consent No liability where vehicle used without insured’s permission No liability where vehicle operated by unauthorized person, e.g. unlicensed driver or otherwise in breach of coverage condition: Insurance (Vehicle) Act s. 75(b), Reg 447/83, s. 55(3), Schedule 10 s. 3(1),(2),(3),(7) Determining whether the insured permitted unauthorized operation is a question of fact: Ins (V) Reg 447/83 s. 55(3.1), Schedule 10 s. 3(3) Did the insured have actual or constructive knowledge of unauthorized status? Whether a reasonable person would have known that the person was unauthorized or operated vehicle in breach of coverage conditions Wawanesa Mutual Insurance Co v. SC Construction (ONSC 2012)Facts: Statutory condition 4(1) says that you cannot permit another person to drive the insured automobile unless the other person is authorized by law to drive it Employee’s vehicle stopped working so his employer let him take a company van- he was involved in a personal injury accident and it turned out he didn’t have a valid license Analysis: An insured will not be in breach of statutory condition 4(1) if he acts reasonably in all the circumstances Key question is whether the accused took reasonable care (Sault Ste. Marie) If an insured who has given someone an unqualified permission to drive his car has no reason to expect that the car will be driven in contravention of policy terms, then he cannot be said to have permitted the contravening use The word “permit” connotes knowledge, wilful blindness, or at least a failure to take reasonable steps to inform oneself of the relevant facts The proper test is to determine what the insured knew or ought to have known Held: When the employee was not hired as a driver and a valid drivers license is not necessary, and there are good reasons to believe that he has a driver’s license, it is not unreasonable to let the employee drive the employer’s vehicle occasionally without first demanding to see the actual license The employer did not act unreasonably in letting the employee take the van home Automobile Insurance: Loss Arising from the “Use or Operation” of a Motor VehicleBCI(V)A s. 7 (1) Subject to section 2 and compliance with this Act and the regulations, the corporation must administer a plan of universal compulsory vehicle insurance providing coverage under a motor vehicle liability policy required by the Motor Vehicle Act, of at least the amount prescribed, to all persons (a) whether named in a certificate or not, to whom, or in respect of whom, or to whose dependants, benefits are payable if bodily injury is sustained or death results, (b) whether named in a certificate or not, to whom or on whose behalf insurance money is payable, if bodily injury to, or the death of another or others, or damage to property, for which he or she is legally liable, results, or (c) to whom insurance money is payable, if loss or damage to a vehicle results from one of the perils mentioned in the regulations caused by a vehicle or its use or operation, or any other risk arising out of its use or operation. Amos v. ICBC (SCC 1995)Facts: Insurance policy provided death and disability benefits where death or injury was caused by an accident that arises out of the ownership, use or operation of the vehicle Amos was driving his van to California and was surrounded and attacked by 6 men, was shot in the process and rendered permanently disabled Insurer denied coverage, saying his injury did not result from the use and operation of the insured vehicle Analysis- “Amos Test”: First, did the accident result from the ordinary and well-known activities to which automobiles are put? Driving vehicle off-road is an ordinary and well-known activity (Pender v. Squires) Pushing motorcycle during a driving lesson is also ordinary and well-known (V-Twin Motorcycle School v. ICBC) Irrelevant if conduct is illegal or dangerous Vytlingham: SCC rejected insurer’s argument to deny indemnity claim where vehicle was used for a criminal purpose Whipple: insured’s negligence not a factor in determining “accident” for first party statutory benefits Same test for no-fault benefits and indemnity claims Second, is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’s injuries and the ownership, use or operation of his vehicle, or is the connection merely incidental or fortuitous? This causal link should be more strictly defined in the context of a liability insurance policy (Vytlingham, Herbison) than in the context of no-fault automobile insurance benefits (Amos) For no-fault benefits coverage, must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made (Martin) Injury need not arise from negligent use of vehicle Connection between injury and use or operation of car need not be direct (Amos) Vehicle use must be more than fortuitous But for liability policies/indemnity insurance, the insured vehicle must be more than the site of the loss, but a direct causal connection is not required and the insured vehicle need not be the instrument of the injury- causation element is met where the use or operation of a motor vehicle in some manner contributes or adds to the injury without an intervening act which breaks the chain of causation Vytligham: tortfeasor not at fault as a motorist Test is more demanding than for no-fault benefits (Vytlingham) Held: Mr. Amos was entitled to disability benefits because he was driving the van when the assaut occurred and was therefore using the vehicle or its ordinary purpose- the shooting had resulted from the attackers’ attempts to gain entry into the van Citadel General Assurance Co. v. Vytlingham (SCC 2007)Facts: Insured suffered permanent injuries when the vehicle in which he was traveling was struck by a boulder dropped from a highway overpass bridge by two people who had brought boulders up to the overpass for that specific purpose, and had used their car to transport the boulders and make a getaway Insurance policy covered damage caused by an inadequately insured motorist, arising directly or indirectly from the use or operation of an automobile Held: while the purpose element of the Amos test was satisfied, the causation element was not- the loss resulted from the tortfeasors act of throwing boulders off the bridge, which was independent from their use of a motor vehicle to bring boulders to the bridge They were covered for their no-fault benefits- causation test was satisfied because it was the driving of the vehicle that placed them on the highway But they could not recover the excess losses under the underinsured motorist policy which is an indemnity policy- for indemnity the injury must have resulted from the use of the vehicle (i.e. vehicle must be used as a weapon), but in this case the dropping of the rock was an independent and separate event and so the chain of causation was broken- tortfeasor was not at fault as a motorist Lumbermens Mutual Casualty Co v. Herbison (SCC 2007)Facts: a group of friends went hunting, one of them had driven to the hunting area in his truck- thought he saw a dear so he stopped his truck and shot the target, which turned out to be another hunter who was permanently disabled by the shot Held: same reasoning as Vytlingham- the plaintiff’s injuries were caused by the defendant firing a rifle, which was unrelated to the defendant’s use of the insured vehicle to travel to the hunting site He was no longer acting as a motorist at the time of the shooting Russo et al. v. John Doe (ONCA 2009)Facts: Appellant was the victim of a drive-by shooting in which she sustained spine injuries that rendered her paraplegic Insurer said that the shooting was an intervening independent act Analysis: This case deals with at-fault insurance coverage, so it is outside the scope of Amos and must follow Lumbermens and Vytlingham instead The at-fault defendant’s tort must be committed as a motorist Purpose test: excludes only aberrant uses of a motor vehicle It is the actual manner in which the car is used that is determinative, not the subjective reasons that the tortfeasor may have for using it- therefore, the fact that a motor vehicle is used for a criminal purpose does not necessarily exclude coverage, provided that it is used as a motor vehicle Met in this case- the vehicle was used to transport passengers and apparatus from one place to another, which is a well-known and ordinary use of an automobile Causation test: But-for test is not enough- there must be an unbroken chain of causation linking the motorist as a motorist to the injuries in respect of which the claim is made Not satisfied- the shooting was a severable intervening event from the use or operation of the motor vehicle Martin v. Freeze Night Club (ONCA 2013)Facts: Martin is a part time audio technician, was assaulted while loading his car after finishing work- was driven a few blocks in his own vehicle, further assaulted and then abandoned Analysis: Purpose test is satisfied Causation test? An intervening act may not absolve the insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car Can it be said that the use or operation of the vehicle was a direct cause of the injuries? His car was nothing more than the venue where the assaults occurred It is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury- the use or operation of the automobile must have directly caused the injury His car was not the dominant vehicle in the assaults- all of the assaults except for the car driving over his foot constituted intervening acts that cannot reasonably be said to be part of the ordinary course of things associated with the use or operation of his vehicle The involvement of the car was merely ancillary or fortuitous to the injuries inflicted V-Twin Motorcycle School Ltd. v. ICBC (BCSC 2010)Facts: student fell and was injured while pushing a motorcycle during a motorcycle course Analysis: Did the accident result from the ordinary and well-known activities to which automobiles are put? Instructing students in the use of a motorcycle as part of a course in learning to operate the motorcycle is part of the ordinary and well-known use of a motorcycle Is there some nexus between the third-party claimant’s injury and the use or operation of the vehicle by the insured? There is an unbroken chain of causation from the use of the motorcycle by V-Twin to instruct its student in pushing a motorcycle to the injury Whipple v. Economic Mutual Insurance Co (2010)Facts: Whipple attempted to do a headstand against a pole in the centre of a party bus, fractured his neck, resulted in incomplete quadriplegia Analysis: Purpose test: In the no-fault benefits scheme, the parties expectations about what is covered is governed by what qualifies as an accident- the negligence of the insured person is not a factor Whether a particular activity associated with a motor vehicle is or is not itself inherently dangerous is not determinative- the test is whether the activity could reasonably be expected to fall within the use or operation of the vehicle The headstand was within the ordinary use and operation of the party bus There are few restrictions on the use of the bus- the activities of the group, including the headstand, were not outside the scope of its use or operation Causation test: The headstand, though unusual, flowed naturally from the increasingly creative activities around the pole, which was an integral part of the vehicle The use of the pole was not incidental to the use and operation of the vehicle- it was a key element and thus meets the dominant feature test Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 Download 296.18 Kb. Share with your friends:
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