In order to obtain coverage from an uninsured motorist insurer, the owner of the vehicle must rebut the presumption that their vehicle was operated with their consent

The Court found that the owner of a van which struck the Plaintiff during a robbery failed to rebut the statutory presumption that the van was being operated with the owner’s consent when the Plaintiff was injured. Pursuant to s. 144(1) of the Insurance Act and s. 248(3) of the Motor Vehicle Act, the owner’s liability insurer was therefore liable to pay the Plaintiff’s damages.

Morash v. Burke, [2006] N.S.J. No. 503, Nova Scotia Supreme Court, R.W. Wright J., December 14, 2006

In this case, the Plaintiff was run down in the parking lot of a local mall as he was pursuing a shoplifter. The van that struck him, driven by one of the Defendants, was being used as the get-away vehicle. The issue for the Court to decide was whether damages in the amount of approximately $163,000 were to be paid by Allstate, the liability insurer of the registered owner of the vehicle at the time of the incident, or by ING, the Plaintiff’s Section D (Uninsured Motorist) Insurer.

Based largely on findings of credibility, the Court found that the owner of the van failed to rebut the statutory presumption that it was being operated by the Defendant, Charles Burke, with the owner’s consent when the Plaintiff was injured. It therefore followed from s. 144(1) of the Insurance Act and s. 248(3) of the Motor Vehicle Act that Allstate was liable to pay the Plaintiff’s damages as the issuer of the owner’s liability policy. The action against ING, the Plaintiff’s uninsured motorist Insurer was dismissed.

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