A person who walks into a vehicle is entitled to damages from automobile insurance

14. October 2010 0

Appeal by the insured from the trial judge’s decision finding no coverage under an automobile policy was allowed. The judge interpreted the terms of the automobile policy too narrowly. A broad interpretation of the words “hit or struck by” entitled the insured to coverage for her injuries, which were sustained when she walked into a steel pole protruding from a parked vehicle. The legislature did not intend to exclude coverage for injuries resulting from contact with stationary automobiles. There is precedent for extending coverage to persons not in any literal sense struck or hit by automobiles.

Lewis v. Economical Insurance Group, [2010] O.J. No. 3158, July 26, 2010, Ontario Court of Appeal, J.I. Laskin, K.N. Feldman and E.E. Gillese JJ.A.

Insured walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, grey and nearly invisible. She suffered a serious head injury, which left her cognitively impaired.

Since the truck could not be identified, the insured sued her own insurance company, Economical Mutual Insurance Company (“Economical”) for damages for personal injuries. The policies she had purchased provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As the insured was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was “struck by” or “hit by” an unidentified automobile. Economical denied coverage on the basis that the insured was not “struck by” or “hit by” the vehicle because the truck was not moving at the time. The motion judge agreed and upheld Economical’s denial of coverage.

The Court of Appeal agreed with the motion judge that the legislative intent of s. 265 of the Insurance Act was to alleviate the plight of motorists injured by drivers of uninsured and unidentified automobiles and, since the coverage is remedial, it must be interpreted broadly and liberally. However, the appellate court found that the motion judge did not apply this principle of broad interpretation but rather erred by interpreting the coverage provisions too narrowly.

The Court of Appeal set out several reasons why a broad interpretation of the provision entitled the insured to coverage for her injuries. First, it stated that the words “struck” or “hit by” must be interpreted in the context of insurance coverage whose purpose is to compensate victims injured as a result of an accident involving an unidentified automobile. Second, it explained that in ordinary parlance the words “struck by” or “hit by” connote simply “coming into contact with” and do not specifically ascribe movement to either object involved. Third, it reasoned that if it was the legislature’s intent to exclude coverage it could have explicitly said so. Fourth, the Court could not find any rational distinction between an accident where a person is struck by a protruding pole on a very slow moving truck and an accident where a person is struck by a pole on a stationary truck. Lastly, the Court noted that existing case law has extended coverage to persons who were not in any literal sense struck or hit by an automobile. In Talbot v. GAN General Insurance Co. (1999), 44 O.R. (3d) 252, a cyclist who suffered injuries when he had to take sudden evasive action to avoid colliding with a car was found to have coverage under the unidentified automobile coverage. In Tucci v. Pugliese (2009), 98 O.R. (3d) 151, an insured who suffered shock, physical and psychological damage when an uninsured vehicle hit the wall of her house was found to have coverage under the uninsured motorist protection. In Re Strum and Co-Operators Insurance Associate (1974), 2 O.R. (2d) 70, a pedestrian was standing on a street corner when a car mounted the curb and struck a street sign, bending it over and causing it to strike the pedestrian. The pedestrian was found to have coverage. The court noted that in all three of the described cases a narrow interpretation of the words “struck by” or “hit by” would have disentitled the claimant to coverage whereas a broad interpretation entitled each claimant to coverage. Further, in all three cases the court recognized that a narrow or literal interpretation would produce a result contrary to common sense and the legislative intent of s. 265(1) of the Insurance Act.

The appeal was allowed.

This case was digested by Natasha D. Morley and edited by David W. Pilley of Harper Grey LLP.

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