ATV was considered a motor vehicle and therefore "accident" occurred
October 04, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: February 17, 2015
Heard Before: Adjudicator Anne Sone
DECISION ON A PRELIMINARY ISSUE
Before: Anne Sone
Addisen Ellen aged 2 was was injured in a ATV accident on August 26, 2005, when he was struck by Polaris ATV ridden by a 7 year old. The accident occurred on private property belonging to neither of the children’s family. He applied for statutory accident benefits from Belair and when the parties were unable to resolve their disputes through mediation, and Addisen Ellen applied for arbitration at FSCO.
The preliminary issue is:
Is the Polaris ATV that was operated by the 7 year old “automobile” under the Schedule so that Addisen Ellen was involved in an “accident” within the meaning of the Schedule?
The Polaris ATV was an “automobile” under the Schedule so that Addisen Ellen was involved in an “accident” within the meaning of the Schedule.
EVIDENCE AND ANALYSIS:
In the Agreed statements of Facts there were no disputes regarding the time, place and circumstances of the accident. The Polaris ATV has four wheels, steering handlebars and a seat designed to be straddled by the rider. It was a 90 cc vehicle, meaning the displacement of the engine was 90 cubic centimetres. It had a rider capacity of one rider with a maximum weight of 165 pounds. The Polaris ATV’s safety information in the owner’s manual made it clear that it was not to be driven by persons under the age of 12 because “[k]ids under the age of 12 have an increased chance of losing control, which could result in severe injury or death. Adult supervision is required.”
The Polaris ATV was not insured under a motor vehicle liability policy at the time of the incident, which occurred on eight acres of vacant land owned by a third party. The property was not open for public use and was posted “No Trespassing”. The family of the 7 year old Polaris ATV rider had permission to use the property from the owners in the form of a written letter in which Mr. McLennan agrees “to keep the property up to municipal standards.” The trail the children were on was widely used by neighbours as a short cut between homes.
The parties also agreed that Polaris ATV meets the definition of an off-road vehicle under the Off-Road Vehicles Act. Belair submits that the Polaris ATV is required to be insured under a motor vehicle liability policy.
The Arbitrator reviewed the evidence and the law and determined that accident benefits would only be available if this were a motor vehicle accident. The key thus was in the definitions of “motor vehicle” “all-terrain vehicle” and “accident”. The Arbitrator reviewed the definitions contained in the Schedule, in the Insurance Act, The Off-Road Vehicles Act, and whether the ATV was defined as an automobile in any insurance policy. The Arbitrator also reviewed the legal requirements of operating such a vehicle on private and public property.
The Arbitrator then reviewed how a person can be an ‘occupier’ of a property pursuant to the Off-Road Vehicles Act. Upon reviewing the definitions in the Act the Arbitrator determined Mr. McLennan is not an “Occupier” and therefore should have had the Polaris ATV insured under the Off-Road Vehicles Act.
The Arbitrator then determined that the Polaris ATV was an “automobile” within the meaning of the Insurance Act based on the following analysis. Firstly, as an off-road vehicle, the Polaris ATV was required to be insured by a motor vehicle liability policy at the time of the collision unless it was operated on land occupied by the owner of the vehicle. Secondly, Kevin McLennan, the owner of the Polaris ATV, was not an occupier of the land on which the collision occurred. Therefore, the Polaris ATV was required to be insured at the time of the collision, and was an “automobile”.
|Posted under Accident Benefit News, ATV Accidents, Automobile Accident Benefits, Car Accidents, Chronic Pain, Fractures, Pain and Suffering
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann 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.
It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.