Employee's Wife Covered By Employer's Insurance in Uninsured Accident - Murphy et al. v. Savoie et al. 2019 ONCA 784

February 07, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Murphy et al. v. Savoie et al. 2019 ONCA 784

Date of Decision: October 3, 2019
Heard Before: Lauwers, Fairburn and Zarnett JJ.A.

COURT OF APPEAL DECISION

AUTOMOBILE INSURANCE: automobile insurance; insured company’s sole delivery driver has flexible schedule and ability to use employer’s vehicle at will during business hours; driver’s spouse injured in accident after company opens but before driver arrives at work; van was available to driver to use anytime during regular business hours for his use; is spouse ‘insured person’ under OPCF 44R Family protection coverage; Rules of Civil Procedure; SABs;


The driver of the vehicle had free access to use the company vehicle for his own use any time the business was regularly open. It was understood that he would arrive at work around 9:30. He was not expected to seek permission from his employer to take the van keys off the hook or to drive deliveries at his own discretion.

When he arrived at work by bike around 9:30 on September 25, 2014 he got a call on his cell phone advising him his wife had been injured in an accident. As the insurer Aviva points out this implies the accident occurred sometime just before the driver arrived at work.

At trial the appellant Aviva, who had insured the florist and included an OPCF 44R Family Protection Coverage endorsement, brought a motion for determination as whether the automobile insurance policy issued to the florist provides uninsured coverage to the drivers wife for injuries in the accident. The driver who hit the wife was not insured as he was driving a stolen vehicle.

The motion judge noted that the delivery driver was the company’s sole driver and that the endorsement covered his wife on the following basis:

For Ms. M to be entitled to coverage she must be an insured person under s. 1.6 of the endorsement which provides:

1.6(b) if the named insured is a corporation, an unincorporated association, partnership, sole proprietorship or other entity, any officer, employee or partner of the named insured for whose regular use the described automobile is provided and his or her spouse and any dependent relative of either, while … (iii) not an occupant of an automobile, who is struck by an automobile.

The definition applies as of the time of the happening of an accident for which indemnity is provided under this change form.

Aviva argued on the basis the accident occurred before the driver was at work. They assert the driver’s wife would only be covered under the endorsement if the driver was ‘on duty’ at the moment of the accident.

The motion judge disagreed on the basis that the accident occurred just before 9:30 and the florist was open at 9:00. The OPCF 44R form is a clause providing coverage for injuries sustained by the driver’s wife and therefore Aviva is required to cover the Plaintiffs under the Policy.

Aviva appeals and advises there is no jurisprudence regarding the interplay of the endorsement and that this is a case of first impression. They argue the court should be guided by the ‘considerable jurisprudence’ of the SABs because of similar phrasing.

On Appeal the Justices did not accede to Aviva’s argument as to the usefulness of the SABs jurisprudence. The indicated that the purpose of the sabs is to provide rules to determine priority among insurers, but the purpose of the endorsement is to extend coverage to the insureds. The are different purpose which provide interpretive context.

More importantly on appeal the Justices indicated that the language of the provisions is not similar. “One of the main objectives of regulatory automobile insurance regime in Ontario is consumer protection and guaranteed compensation of victims”.

The Appeal court disagreed with Aviva’s position. The van was available for ‘regular use’ any time the business was open  and in the endorsement, s. 2 requires that ‘at the time of the accident’, ‘the employee’ must be one ‘for whose regular use the described automobile is provided’. This is sufficient.

The appeal is dismissed.



 

Posted under Accident Benefit News, Car Accidents

View All Posts

About Deutschmann Law

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.

Practice Areas

  1. Car accidents
  2. Motorcycle accidents
  3. Automobile accident benefits
  4. Catastrophic injury
  5. Brain injury
  6. Paraplegia and Quadriplegia
  7. Spinal cord injury
  8. Drunk driving accidents
  9. Concussion syndrome
  1. Wrongful death
  2. Bicycle accidents
  3. Disability insurance claims
  4. Slip and fall injury
  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement

Personal Injury Blog

Feb 25, 2020
Bicycle accidents and insurance - how does it work?
Feb 20, 2020
Two snowmobile driver deaths and a serious injury to a 10 Year old snowmobile driver prompt warnings
Feb 19, 2020
No underinsured coverage for injured Ontario truck driver - Kahlon v. ACE INA Insurance, 2019 ONCA 774
Feb 18, 2020
"Minor Concussions" Do not exist
Feb 17, 2020
Some Neurological disorders are related to increased suicide rates
Feb 14, 2020
No Negligence or Overly Aggressive Action in Hockey Game - Levita v Alan Crew et al., 2015 ONSC 5316 (CanLII)

More Personal Injury Articles » 
Review our services

Connect with us

Facebook Twitter Linkedin Youtube Google