Intentionally reversing a vehicle in the direction of a plaintiff may not fall within an intentional act exclusion clause

An insurer could not rely on intentional act exclusion in s. 118 of the Insurance Act in circumstances where the insured intentionally reversed his vehicle in the direction of the plaintiff but did not intend to hit her.

Savage v. Belecque, [2012] O.J. No. 2818, June 21, 2012, Ontario Court of Appeal, R.P. Armstrong, R.A. Blair and S.E. Lang JJ.A.

The plaintiff was on skates in the parking lot of a rink. The defendant was driving a vehicle owned by his mother. The plaintiff leaned into the back window of the defendant’s vehicle to ask a passenger for a cigarette. The passenger held on to her jacket and the vehicle advanced, with the plaintiff moving alongside on her skates. The passenger let go and the plaintiff fell to the ground. The defendant then reversed quickly striking the plaintiff.

The plaintiff sued the driver, the passenger, both their parents for negligent supervision (these claims were later dismissed on consent) and her parents’ insurer, CGU, which provided uninsured and inadequately insured motorist coverage to her. The driver’s parents sued their insurer, Allstate, which denied coverage on the basis that the claim was excluded pursuant to s. 118 of the Insurance Act which excludes coverage for conduct that contravenes any criminal or other law committed “with intent to bring about loss or damage”. Allstate relied on the driver’s conviction for careless driving under the Highway Traffic Act.

CGU brought a summary judgment motion seeking a declaration that there was no genuine issue requiring a trial on the basis that Allstate was under a duty to indemnify its insureds (the parents of the defendant driver). The motion judge decided the motion in part on the basis of the terms of a settlement that was reached after the motion was filed and before it was heard. Pursuant to the terms of the settlement the plaintiff was paid $450,000 in compensatory damages. The motion judge viewed the terms of the settlement as amounting to an admission that the driver’s conduct, while negligent, was not intentional. On appeal counsel conceded that the motion judge had erred in considering the terms of the settlement. All parties requested that the Court of Appeal decide the issue on the basis of the record. The Court of Appeal reviewed the record and concluded that there was no genuine issue requiring a trial of the driver’s intention and the consequent coverage by Allstate.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP.

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