Look Both Ways and Straight Ahead

1 septembre 2010 | Gordon L. Robson | Kitchener-Waterloo

( Disponible en anglais seulement )

As parents, one of
the great concerns we all have is that when our children are growing up they
must be careful anywhere near a road so that they will not be “hit by a car.”
We also have this concern with our pets, and do what we can to ensure that our
dog or cat is not “hit by a car”. Our concern, of course, is obvious. If a
moving automobile strikes a child or animal, serious injuries will no doubt
follow. Although we would certainly not wish to see it happen, our concept of
being hit or struck by a car doesn’t really extend to a child or pet who
actually walks into a car that is parked. That is simply not the way most
people would interpret being “hit” or “struck” by a car. However, in the world
of insurance law things aren’t always as clear.

In a very recent
Ontario Court of Appeal decision, Lewis v.
Economical Insurance Group et al, the
Ontario Court of Appeal held that “struck by an automobile” and “hit by an
automobile” are to be interpreted to include situations where a pedestrian
walks into a piece of equipment extending from a parked vehicle.

In 2003, the
Plaintiff 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. According to the Court of Appeal decision, the pole was unmarked, grey
and nearly invisible. (I’m not sure what “nearly invisible” means.) Clearly,
however, the Plaintiff did not see the pole. She suffered a serious head
injury, which left her with certain impairments. Note that the concept of being
“struck by” or “hit by” appears in the Insurance
Act
, the Ontario Automobile Policy (unidentified automobile), and the
OPCF-44R Protection Endorsement.

The Defendant
brought a Motion for Summary Judgment, arguing that the Plaintiff was not
“struck” or “hit” by a vehicle, and was therefore ineligible for unidentified
automobile coverage. The Motions Judge found that the meaning of “hit” or
“struck” was not ambiguous and it was not sufficiently analogous to a situation
where someone is struck by an object which has been set into motion by the
force of a moving vehicle.

However, the Court
of Appeal reasoned that the words “struck by” and “hit by” should be given a
liberal interpretation, keeping in mind that the dominant purpose of insurance
coverage is to compensate victims injured as a result of an accident involving
unidentified automobiles. It was noted that the Defendant was in fact paying
Statutory Accident Benefits, although it must be conceded that the Entitlement
definition was different for Statutory Accident Benefits.

The panel also went
through the exercise of analyzing the Canadian Oxford Dictionary definitions of
“strike” and “hit”, although in this writer’s view, that analysis was not
particularly compelling. The Court also determined that it would have been
simple for the legislature to insert the words “excluding a stationary
automobile” in the various provisions.

The
Court of Appeal also indicated that there was no reason to distinguish this
situation from a situation where a vehicle had simply been moving slowly. It
was stated that “in either case, an insured would expect coverage.” I am not
sure that this necessarily follows. 

However, the Court
of Appeal was not prepared to stick to a literal interpretation.

It should also be
noted that jurisprudence contains examples in which the words “struck” or “hit”
have been given expanded interpretation, such as where a cyclist had to take
sudden evasive action to avoid colliding with a car that almost struck him and
left the scene (Talbot v. GAN General Insurance Co. (1999), 44
O.R. (3d) 252 (S.C.J.), or where an uninsured vehicle ran into the Plaintiff’s
house, causing the house to shake, which allegedly caused physical and
psychological damage to the Plaintiff (Tucchi
v. Pugliese (2009), 98 O.R. (3d)
151 (S.C.J.). In that case, the Trial Judge found that the injuries arguably
resulted from the “proximate, sensory invasion, the notional equivalent of
being struck.”

Further, the Court
noted Re Strum and Co-Operators Insurance
Association
(1974), 2 O.R. (2d) 70 (H.C.J.), where a pedestrian was
standing on a street corner and a moving car struck a sign which in turn struck
the pedestrian.

The Court of Appeal
herein noted that in all three of these cases, a narrow interpretation of the
words “struck by” or “hit by” would have disentitled the claimants to coverage.
The Court also noted that a broader interpretation of these terms would not
cause a “floodgate” situation, as even if an insured person, by virtue of this
decision, obtains access to unidentified motorist coverage, some negligence of the operator of the unidentified motor vehicle
must still be proved against the unidentified vehicle and in the ordinary
course, if one walks into the side of a parked car, in most cases the
owner/operator of the vehicle would be blameless.

It should be noted, however, that in all of the
cases cited by the Court of Appeal, there was some level of movement of the
offending vehicle and some force or exertion which was transmitted to the
victim. It can be argued that none of those cases are offensive to the concept
of “struck by” or “hit by”. While in the case of Lewis v. Economical,
there was no movement or force exerted at or near the Plaintiff by the
automobile, and contrary to what the Court of Appeal asserts as being the
“reasonable expectation of people that buy insurance”, it is submitted that it
can be quite a stretch to assume that being struck or hit by a vehicle would
include simply bumping into it while it isn’t moving.