sept. 1. 2020

No Hit-and-Run Insurance for You…Failing to Photograph the Car/Driver Who Hurt You!

Lamb v. Co-operators General Insurance Co., 2020 ONSC 4955 (CanLII)

This aggressive summary judgment motion was Co-operators attempt to avoid having to post their policy / respond to their insured's (i.e. the plaintiff herein) claim.[1]

Ms. Lamb was hit by a car, which left the scene, so Ms. Lamb sued her own insurer,[2] Co-operators, in order to access her policy limits for an unidentified / underinsured / uninsured defendant. This is commonplace.[3]

The Point of Contention on this Motion

The basis for Co-operators' summary judgment motion was that the plaintiff:

  1. is under a duty, under the legislation, to take reasonable steps to ascertain the identity of the car / driver who hit them (so that they can sue that person’s insurance policy, instead of simply suing their own insurer). Per Stribopoulos, J. at paras 9-10:

[9] The automobile insurance policy agreement between Ms. Lamb's husband and Co-operators included the O.P.C.F. 44R Family Protection Coverage endorsement. The Insurance Act requires that every automobile insurance policy include such coverage: Insurance Act, R.S.O. 1990, c. I.8, s. 265(1). The Act defines a "person insured under the contract" as including the policy holder's "spouse" if "struck by an uninsured or unidentified automobile": s. 265(2). The Act also defines an "unidentified automobile" as meaning "an automobile with respect to which the identity of either the owner or driver cannot be ascertained": s. 265(2) (emphasis added).

[10] Given the definition of an "unidentified automobile," the case law recognizes that for a plaintiff, like Ms. Lamb, to succeed in a claim against her insurer, she must establish, on a balance of probabilities, that she could not ascertain by reasonable means the identity of the driver or owner of the vehicle that injured her:

2. here, the Plaintiff (and by extension, her husband and their friend, who were at the scene) failed to do any of the following:

  • take a picture of the offending car's license plate;
  • failed to write down the license plate number;
  • failed to ask the offending driver for their name / driver's license / particulars when they had the chance; and

therefore, failed to fulfill her statutory requirement.

Reasonable enough, except for the facts.

The Plaintiff had a fractured knee as a result of being hit, which eventually required surgery.[4]

Why This Matters

So in this motion, Co-operators was taking the position that despite her broken knee, that Ms. Lamb breached her statutory responsibility by failing to take a picture of the car / license plate, as well as asking the driver for his driver's license / particulars.

The denial of insurance coverage here based on this failure to take down the defendant’s information, while suffering / in great pain.

Other Important Details

Other notable facts within the Reasons of Stribopoulos, J.:

  • The Plaintiff was meeting her husband their friend, at a local pub, to celebrate her husband’s birthday when she was struck, by a car, in the parking lot;
  • The Plaintiff was thrown 4-5 feet by the impact;
  • The Plaintiff describes herself as being in shock after the impact. Her husband and their friend also describe her as being in shock; and
  • The defendant driver gets out and speaks to them. The husband/friend help the Plaintiff off the ground (in the parking lot) and into the pub, away from traffic. The defendant driver has left when they go back outside.

To add to the difficulties on this motion, Stribopoulos, J. notes the following, which is an inconsistency in Co-operators’ position, the two-kicks-at-the-can approach:

[42] In May of 2016, Ms. Lamb met with an adjuster from Co-Operators. On June 15, 2016, Co-operators wrote Ms. Lamb's lawyer, advising that, based on its assessment, the vehicle that struck her had the right of way. On that basis, Co-operators denied Ms. Lamb's claim, asserting that she was 100 percent liable for any damages or injuries. Unlike its position on this motion, in denying her claim Co-operators did not cite Ms. Lamb's failure to identify the driver or the owner of the vehicle that struck her.

The ratio of these Reasons:

[60] In the end, acceding to Co-operators' position on this motion would serve to cast the burden on a plaintiff seeking redress for injuries caused by an "unidentified automobile" far too high. If a plaintiff is injured by a motor vehicle, and because of her injury is not in a position to collect information about the driver of that vehicle or record his license plate before that driver takes flight, they are the very sort of claimant the law should protect. To close the door on such a plaintiff's claim would, in practical terms, have the somewhat perverse effect of only ever affording coverage to those injured by "hit and run" drivers who have the misfortune of being rendered unconscious. That would be a rather absurd result. It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 36 O.R. (3d) 419, at p. 27. [underlined emphasis added]

[1] summary judgment motions are an early way for any party, in a lawsuit, to end part (or all) of the lawsuit early. Hryniak (SCC) is the leading case on the expanded summary judgment motion test

[2] if you cannot locate the driver / car owner who hit you (i.e. a classic hit-and-run scenario), then you can sue "John / Jane Doe" (for the unidentified driver / owner) as well as your own insurer. Your insurer will respond to your lawsuit claims, in the place of the unidentified / underinsured / uninsured defendant(s)

[3] In Ontario, the legislative intent is that if you are hit by a car, you will have a minimum of $200,000 of insurance coverage to respond to your claims. You are likely to have more, as most private insurance contracts are higher than $200,000. But if there is absolutely no insurance available (i.e. you don't have car insurance and you are knocked down in a hit-and-run situation, for example), then the government will step in, as an insurer of last resort, and provide you with this $200,000 minimum: see Motor Vehicle Accident Claims Fund (MVACF).

[4] para 39 of Reasons - right tibia plateau fracture and would require surgery