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Woman Struck by Stationary Object
Published in the July 2010 issue of Litigation Notes - View Article
The Ontario Court of Appeal holds that the “uninsured or unidentified automobile” coverage in Ontario’s standard automobile insurance policy should provide coverage for injuries sustained as a result of walking into a pole protruding from a parked truck.
One day, Ms. Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole struck her above her right eye near her temple. She fell to the ground, unconscious and suffered a serious head injury which left her cognitively impaired.
The truck could not be identified and Ms. Lewis therefore sued her own insurance company, Economical Mutual Insurance Company (“Economical”). Economical denied coverage on the basis that Ms. Lewis had not been “struck by” or “hit by” the unidentified vehicle. A motions judge agreed and granted summary judgment in favour of Economical. Ms. Lewis appealed to the Ontario Court of Appeal.
Section 265 of the Ontario Insurance Act requires every automobile insurance policy to provide coverage to persons who are injured in an accident involving an unidentified or uninsured automobile. A person is entitled to recover amounts that they would have been “legally entitled” to recover from the owner or driver of the unidentified automobile. In the case of the person who is not the occupant of an automobile there is coverage if that person is “struck by” an unidentified automobile.
Under the compulsory form of automobile policy prescribed by regulation under the Ontario Insurance Act, insurance is available to a pedestrian who is “hit by” an unidentified automobile. In addition, Ms. Lewis had purchased a family protection endorsement, which also provided coverage to a person who is not an occupant of an automobile but is “struck by” an automobile.
The Court of Appeal found that the motions judge had correctly identified that “unidentified and uninsured motorist” coverage is remedial and must therefore be interpreted broadly and liberally. However, the Court considered that the motions judge had interpreted the legislative provisions too restrictively in concluding that Ms. Lewis had not been hit or struck by the automobile. The Court of Appeal held that the words “struck by” or “hit by” must be interpreted in the context of the dominant purpose of the insurance coverage, which is to compensate victims injured as a result of an accident involving an unidentified automobile. Economical had already acknowledged that Ms. Lewis had been injured in an accident with an unidentified automobile by paying her statutory accident benefits which are available where “an incident in which the use or operation of an automobile directly causes an impairment”.
The Court further held that the words “struck by” or “hit by” generally connote simply “coming into contact with” and do not specifically ascribe movement to either object involved. “Accordingly, we do not normally differentiate between ‘Ms. Lewis was struck by the pole’; ‘Ms. Lewis struck her head on a pole’; and ‘the pole struck Ms. Lewis above her right eye’”.
The Court also concluded that the interpretation relied upon by Economical was inappropriate “because its application brings about an unrealistic result that was not contemplated in the ‘atmosphere in which the insurance was contracted’”. The Court could not see any distinction between an accident where a person is struck by a pole on a very, very slow moving truck as opposed to being struck by a pole on a stationary truck.
The Court went on to consider case law which has extended coverage to persons who were not in any literal sense struck or hit by an automobile. In one case a cyclist had to take sudden evasive action to avoid colliding with a car that almost struck him and then left the scene. The cyclist suffered injuries and claimed under his unidentified automobile coverage. The Court held that this was tantamount to having been struck by the vehicle. In another case, a woman suffered shock and physical and psychological damage as a result of a car colliding into the wall of her house. Again, although the vehicle did not actually strike the woman herself, the Court concluded that her “injuries arguably resulted from the proximate, sensory invasion, the notional equivalent of being struck”. In another case a car mounted the curb and struck a street sign, bending it over and causing it to strike a pedestrian. The Court in that case held that the pedestrian had been struck by the automobile stating:
“The words “struck by the described automobile”, if taken to mean only that there must be direct physical contact between the automobile and the person of the claimant, could make the possibility of recovery depend upon minute differences in the circumstances, entirely unpredictable, such as, for example, whether the claimant had been able to interpose between himself and the automobile some article he was carrying, such as a suitcase, a box of tools or unusually thick clothing. In such cases, the force of the impact is transmitted directly to the person of the injured party, regardless of the fact that he has not been ‘struck by’ the automobile and that there is no direct physical contact between himself and it”.
The Court therefore concluded that there should be coverage. On the argument that this would open the floodgates to injury claims by persons who walk into unidentified parked cars, the Court pointed out that this was a case about coverage, not liability or negligence. If the owner or driver of a parked car were not negligent, the claimant would have no “legal entitlement” to damages and therefore would not be able to recover under the uninsured or unidentified motorist coverage.
Lewis v. Economical Insurance Group, 2010 ONCA 528 (CanLII)