Under normal circumstances, when you are injured in an Ontario motor vehicle accident caused by another driver’s negligence, you have the right to file a personal injury lawsuit against that driver and collect damages. Of course, in practice the negligent driver’s insurance is likely to pay the damages. What happens when the driver is an uninsured motorist or–as is often the case with hit-and-run accidents–the driver is never identified?
The answer, you probably know, is uninsured motorist coverage. Ontario law requires all insurers to offer such coverage. With uninsured motorist coverage, your insurance company effectively steps into the shoes of the unknown or uninsured (or underinsured) driver and pays your claim. However, the insurer may also opt to defend against your claim in court. In this sense, the insurer is not on your side, but rather an adversary.
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The Accident and the Victim’s Claim Against Her Insurer
A pending case before the Ontario Superior Court of Justice, Gilbraith v. Intact Insurance Company, offers an unusual twist on the typical litigation that ensues between accident victims and their uninsured motorist carriers.
Here is what happened. In April 2014, the plaintiff was walking down a street in Waterloo. Suddenly, a car approached her from the opposite direction. A witness estimated the car was speeding, traveling at between 60 and 70 km/hr in a 50 km/hr zone.
As the car passed by the plaintiff, a passenger sitting in the front of the vehicle threw an egg–or possibly multiple eggs–at the plaintiff, which struck her right eye. The car then sped away without stopping. According to court records, neither the car itself nor its driver or occupants were ever identified. The egg caused permanent damage to the plaintiff’s right eye.
The plaintiff subsequently filed a personal injury lawsuit, which she served on her father’s uninsured motorist carrier and Ontario’s Superintendent of Financial Services. The plaintiff was also covered by this policy. Before the Superior Court, the defence filed a motion for summary judgment, effectively asking the judge to dismiss the case because, in their view, the plaintiff’s injuries “did not arise directly or indirectly from the use or operation of an automobile by an inadequately insured motorist.” Put another way, a passenger in a moving vehicle throwing an egg at a pedestrian is not the sort of accident that is covered by an uninsured motorist policy.
Judge: Plaintiff Meets Purpose, Modified Causation Tests
Justice Alexander Sosna dismissed motion for summary judgment, holding there was a “genuine issue” requiring trial.
The judge began by noting that under Ontario case law, an uninsured motorist endorsement is a “big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle.” In reviewing cases such as this, the Court must ask two questions:
- The Purpose Test: “Did the incident occur in the course of the ordinary and well known activities of automobiles?”
- The Modified Causation Test: “Was there an unbroken chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or ‘but’ for?”
With respect to the first question, the purpose test, the insurer argued that in the context of this case, the uninsured vehicle was used as a “catapult for the egg,” which was clearly an “aberrant use of the motor vehicle.” That is to say, using a car to catapult eggs is not an “ordinary and well known use to which motor vehicles are put.”
But as Justice Sosna pointed out, cars are regularly used to transport both passengers and cargo–which in this case, included both the egg and the person who threw it at the plaintiff. This was enough to satisfy the purpose test.
As for the second question, the modified causation test, the defence argued the “act of intentionally throwing an egg by a passenger from the moving motor vehicle was an intervening act that broke the chain of causation between the driving of the vehicle by the unidentified motorist and the plaintiff’s injuries.”
Again, the judge disagreed. The driving of the car was not a wholly separate and distinguishable act from the throwing of the egg. To the contrary, given the speed at which the car was traveling–which was above the speed limit, according to eyewitness testimony–the driver’s actions made “the plaintiff’s injury more likely than not,” as the egg contained “greater kinetic energy” than it otherwise would have had. In support of this point, the judge cited the testimony of the plaintiff’s expert witness, a biomechanical engineer who offered his opinions on the estimated “velocity of the egg.”
In addition, the judge said the unknown driver was “independently negligent” by failing to stop or slow his vehicle when he knew–or should have known–his passenger was preparing to throw an egg at a pedestrian. This is akin to a premises liability claim, where the owner of a building is responsible for failing to address a known hazard that endangers the safety of its visitors.
Accordingly, the judge held the plaintiff was entitled to take her lawsuit to trial. The court further awarded costs against the insurer and the superintendent with respect to the motion for summary judgment.
Contact Preszler Law Today if You Have Been Injured in a Toronto Pedestrian Accident
According to Jeffrey Preszler, “this is an unusual case as most accident-related claims against insurance companies do not involve drive-by egg throwing attacks. But this case does illustrate the lengths insurers will go to avoid paying out a potentially valid claim.”
If you are seriously injured in an accident caused by an unknown or uninsured motorist, you cannot assume that your insurance carrier will do right by you. You need to work with an experienced Toronto personal injury lawyer. Contact Preszler Law Firm today to schedule a free consultation with one of our lawyers today.