Personal Injury

Make no assumptions about MVA insurance claims: Lee

By Tony Poland, AdvocateDaily.com Associate Editor

A motor vehicle insurance claim can come in many forms and is not limited to injuries suffered in a collision, says Toronto personal injury lawyer Andrew M. Lee.

Referencing a case where a pedestrian filed a claim after she was hit in the eye by an egg thrown from a car, Lee, principal of Lee & Associates, says knowing what is covered by automobile insurance is not always a simple matter.

“Every case should be considered on its own merits,” he tells AdvocateDaily.com. “Every factor should be taken into account, and just because it may not seem like there’s a claim arising from the use of a motor vehicle it doesn’t necessarily mean that’s the case.”

Lee, who was not involved in the matter and comments generally, says the incident of a woman hit with the egg is a perfect example. The woman was walking on a sidewalk when several eggs were thrown at her from a passing car, he says.

She was struck and lost central vision in her right eye. The car, driver and occupant were never identified so the woman, who was covered under her father’s auto insurance, filed a claim on his policy, Lee says.

He explains that under the family protection coverage endorsement of a standard automobile insurance policy, a person is “protected from negligence caused by an unidentified, uninsured or underinsured individual.”

The insurance carrier sought a summary judgment in Ontario Superior Court, looking to have the claim dismissed. The company argued that the injury “did not arise directly or indirectly from the use or operation of an automobile by an inadequately insured motorist, but by an egg being thrown by a passenger in the car.”

The woman’s lawyer told the court that “the incident occurred in the course of the ordinary and well-known activity of motor vehicles, and that there was an unbroken chain of causation linking the injury to the use and operation of the motor vehicle.”

“The plaintiff submits that the added velocity of the egg imparted by the speeding motor vehicle rendered the involvement of the motor vehicle the dominant feature that caused her injury,” court heard.

In directing the matter to trial, Justice Alexander Sosna said “the driver was independently negligent in failing to stop his vehicle, or slow it down to the point of eliminating the effect of the vehicle upon the egg when he knew or ought to have known that the use of his motor vehicle would contribute to the impact of the egg about to be thrown in the direction where pedestrians may be present.”

In addressing the purpose and causation tests, the judge found that the vehicle was being used for the purpose intended, and that transportation of cargo — in this case, the eggs — was an ordinary and known activity of motor vehicles, and that the causation test had been met as the speed and velocity of the moving vehicle contributed to the eye injury.

Lee says it’s “not uncommon for defence counsel representing insurance companies to argue in unusual and out of the ordinary cases that the incident in question did not arise out of the ordinary use” of a motor vehicle.

As an example, Lee says his office successfully represented a client who was injured while “car surfing.”

In the case, a woman was standing on the rear bumper of a moving vehicle with one hand on the roof rack and another on a friend’s shoulder who was also on the bumper.

The driver made a sharp turn and the woman fell and suffered a serious injury when she hit her head on the concrete, court was told.

Lawyer Steven Sieger of Lee & Associates was successful in making a claim on the woman’s behalf which was later upheld by Divisional Court, which ruled that “while reckless and foolish, [the woman] was using the vehicle for its normal purpose of transportation.” The Court of Appeal refused to entertain an appeal of the decision.

“That’s just an example of how courts are willing to be flexible,” Lee says. “It really comes down to the facts in each particular case.

“I think the courts are generally willing to be very lenient and flexible when it comes to consideration of whether an incident arises from the ordinary use of a vehicle.”

He says court decisions are continuously evolving and while a case may be “out of the ordinary, it may be not impossible” to seek damages.

“One should not be afraid to move forward to make a claim,” Lee says.

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