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.