Where an Insured is involved in a single vehicle motor vehicle accident and is found to have a blood alcohol level of 300 mg of ethyl alcohol in 100 milliliters of blood; absent any reasonable explanation for the accident, the Insured will be found to have been operating his motor vehicle under the influence of alcohol and his automobile insurance will be void

Co-operators General Insurance Co. v. Mayer, [2005] A.J. No. 1061, Alberta Provincial Court

Mr. Mayer was involved in a single vehicle motor vehicle accident while operating a 2001 Chevrolet Monte Carlo insured by Co-operators General Insurance Co. (“Co-operators”) in favour of Mr. Mayer’s lessor. Police attended at the scene and found Mr. Mayer alone, trapped in the vehicle. The police officer testified that Mr. Mayer smelled of alcohol, and that there was a half-consumed bottle of whiskey in a briefcase in the driver’s compartment of the vehicle. The roadway was dry at the time of the accident. There were no curves where the accident occurred, although the right-hand lane merged into the left-hand lane.

Mr. Mayer was taken to the Foothills Medical Centre for treatment of his injuries. The emergency chart contains a notation that Mr. Mayer admitted to consuming a few drinks. A sample of Mayer’s blood was obtained at 0123 hours and was found to contain 270 milligrams of ethyl alcohol in 100 milliliters of blood. An analyst with the forensic laboratory in Alberta opined that Mr. Mayer’s blood alcohol concentration would have been as high as 300 milligrams of ethyl alcohol in 100 milliliters of blood at the time of the accident. Co-operators paid out $25,000 to the lessor of Mr. Mayer’s vehicle. Co-operators then commenced this action against Mr. Mayer for recovery of the funds paid to the lessor. The basis for the claim by Co-operators was that Mr. Mayer had voided his contract of automobile insurance by operating his motor vehicle under the influence of alcohol, such that his ability to operate a motor vehicle was impaired.

At the trial Mr. Mayer provided no explanation, excuse, or plausible argument as to how the accident occurred. The road was dry, and the weather was fair, and there was no traffic. Mr. Mayer was familiar with the road and had no explanation as to why he did not merge out of the right-hand lane. Hess Prov. Ct. J. noted that this case was not dissimilar from Saskatchewan Government Insurance v. Lamontagne (1991) 34 M.V.R. (2d) 35, Inglis v. Insurance Corp. of British Columbia [2005] B.C.J. No. 1060 and Pilot Insurance Co. v. Tchourkine [2002] O.J. No. 2106. Mr. Mayer argued that the presence of a half-consumed bottle of alcohol, the odour of alcohol, and his blood alcohol readings were not conclusive evidence of impairment. Hess Prov. Ct. J. took all these factors into consideration, and when assessing all the evidence surrounding the cause of the accident came to the conclusion that Co-operators had met the burden of proof imposed upon it in establishing that Mr. Mayer was under the influence of alcohol. Hess Prov. Ct. J. determined that Mr. Mayer’s automobile insurance policy was void. Co-operators was entitled to judgment against Mr. Mayer for the funds paid to Mr. Mayer’s lessor.

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