Passenger’s Steering-Wheel Grab Sparks Insurer Squabble

The Advocate Files: Personal Injury

Passenger’s Steering-Wheel Grab Sparks Insurer Squabble

Ontario Auto Insurance – Accident victims will still be taken care of, even when insurers end up squabbling over who should pay, says Toronto personal injury lawyer Gary Will.

The Ontario Court of Appeal (OCA) recently upheld a motion judge’s finding that a driver whose boyfriend grabbed the wheel during an argument should not be held liable for the serious injuries of the driver of the car she crashed into.

While the ruling helps clarify the law on coverage, Will, managing partner of Will Davidson LLP, says it’s all largely moot to the injured woman, since it just means that her own insurer is on the hook for her damages, rather than a different company.

“At the end of the day, our insurance scheme is based on ensuring that innocent victims aren’t left out in the cold in the unusual circumstances that gave rise to this case,” says Will. “The defendant driver wasn’t responsible for the accident, but the plaintiff still has a remedy.”

According to the decision, the case has its roots in a 2013 collision on Highway 407, when the defendant driver got into an argument with her boyfriend, who was sitting in the front passenger seat. The man grabbed the wheel, steering the car into another vehicle, where one of the occupants was left seriously injured.

The boyfriend was later convicted of dangerous driving causing bodily harm and failing to remain at the scene of the accident, while the injured woman sued both him and his girlfriend, the driver.

The driver’s insurer then moved for summary judgment dismissing the case against her, arguing that she could not be held responsible for her boyfriend’s actions under s. 192(2) of the Highway Traffic Act, which provides vicarious liability for owners due to negligence in the operation of their motor vehicles “unless the motor vehicle … was without the owner’s consent in the possession of some person other than the owner.”

The motion judge agreed, dismissing the case against the driver after concluding that her boyfriend took control without her consent. That finding was upheld on appeal by the three-judge panel, which rejected additional arguments from the injured woman’s insurer that the driver should be held liable because she remained in possession of the car at the time of the crash.

The OCA did rule in favour of the injured woman’s insurer on another issue, reversing the motion judge’s decision to grant a Rule 21 motion brought by the driver’s insurer, which confirmed that her boyfriend would not be indemnified by her policy.

The appeal panel found the motion judge’s ruling must be set aside because she “gave no meaningful explanation for the reasoning path she took in coming to her decision.” In any case, the panel added that it was not clear that her decision was based on a “question of law raised by the pleadings,” as required under Rule 21.

Will explains that the Rule 21 motion reversal does not actually settle the issue of whether the boyfriend will be covered by the driver’s insurance.

“There may be a further decision on that issue if the insurers are unable to resolve it themselves,” he says, adding that he was not surprised by the OCA’s conclusion, despite the unique fact situation.

“It’s consistent with the principles from other case law,” Will says.