"Struck" by car does not only mean contact. - Kitchener Personal Injury Lawyer

Tucci v Pugliese – “STRUCK” by an automobile – insured sitting at her kitchen table when vehicle drives into her home causing loud noise and damage but not striking defendent– plaintiff brings claim against own insured for under insured coverage - definition of striking extended to cover “notional” striking.

July 18, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The plaintiff was sitting in her kitchen at the time that a car drove into a wall of her home, directly behind where she was sitting. The car caused a lot of damage to the home (approximately $100,000.00 in damage) but neither the car nor any part of the home came into contact with the plaintiff. The plaintiff was severely shaken by the incident and claimed that she was suffering from anxiety and depression due to the incident. The plaintiff brought a claim against the driver/defendant and also included her husband’s insurer in the event that the defendant is inadequately insured. This is a standard endorsement that is found in most, if not all, car insurance policies. However, to take advantage of this endorsement, the endorsement provides that an eligible person who is not an occupant of the car is struck by a car. The plaintiff has to be able to maintain an action against the inadequately insured defendant and show that where she was not an occupant of the car that she was “struck” by a car.

The defence obviously was seeking a strict interpretation of the word, “struck”, that required physical contact. However the court noted the following:

“The notional striking, to which he refers, occurs in circumstances where the operator of an automobile has, by his conduct in the operation of it, so imperiled an insured pedestrian, that the pedestrian reasonably believes that he has no alternative but to take immediate evasive action or lest he be struck. If he injures himself in the course of taking such evasive action, his injuries are the result of being notionally struck. They might well be worse if he did not attempt to preserve himself. Would the insurer be better off if the pedestrian did nothing, and let himself be run down?

The plain purpose of this endorsement is to protect the insured and members of his family, while they are pedestrians, and when they are injured by an uninsured or underinsured motorist. It does no violence to the interpretation of “hit” or “strike” to extend their meanings to a situation where the striking or hitting would occur but for the action taken by the insured to preserve himself from injury.

Taking evasive action, however, ought not to be an indispensable element of a notional touching. One can easily imagine occurrences where the pedestrian might have, as here, no opportunity to see the motorist. Absent sight of a pending calamity, the individual could not be expected to take evasive action.”

In this particular case, the court dismissed the defendant/insurer’s action to dismiss the claim and that is was proper for a trial on the facts to determine whether the plaintiff did qualify under the terms of the insurance contract to bring this claim.

“I have no difficulty extending the ordinary meaning the words “hit” or “strike” to cover the situations of “notional striking” such as I have described. That said, the words still plainly imply a significant degree of proximity between the automobile and the pedestrian, and the real apprehension by the pedestrian of imminent peril due to the actions of the motorist, the “immediate sensory invasion”.

Let us assume that this plaintiff had not simply been seated at her kitchen table. Let us assume, rather, that she had been standing at the top of her basement stairs when the Pugliese automobile struck her dwelling, “right behind where she was standing”. If the sudden loud bang had startled her, and had caused her to lose her balance, and tumble down the stairs, resulting in catastrophic injuries, it would be difficult for me to conclude that she had not undergone an “immediate sensory invasion”, i.e., a notional touching. There was a degree of proximity. She had no opportunity to take evasive action, because she did not see the automobile. So her injuries did not result from the fact of her having taken evasive action. But the injuries arguably resulted from the proximate, sensory invasion, the notional equivalent of being struck.

Plaintiff’s counsel asks in ¶ 33 of his factum:

… let us assume that a car was to strike a bus shelter. Would the legislature … have intended that only those people who came into direct contact with the tortfeasor’s automobile be compensated and not those who are injured as a result of taking evasive action …?

I believe that the answer to this question is “no” as I have framed the test …”

About Paquette Travers & Deutschmann

Paquette Travers & Deutschmann serve South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Doug O’Toole focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.

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