John R. McCarthy

The appellant suffered a serious head injury when she walked into a nearly invisible steel pole protruding from a parked, unidentified truck.

She sued her insurer for damages under the unidentified motorist coverage of her policy.

The motion judge dismissed the claim, finding that the appellant was not 'struck by' or 'hit by' the truck because it was stationary.

The Court of Appeal allowed the appeal, holding that the words 'struck by' and 'hit by' should be interpreted broadly in light of the remedial purpose of the coverage, and that contact with a stationary vehicle satisfies the requirement.

The respondent was injured in a motor vehicle accident caused by an uninsured driver who was being pursued by police.

She sued the uninsured driver and her own insurer under the uninsured coverage provisions of her policy, but did not sue the police or municipality.

The insurer brought a third-party claim against the police and municipality, and argued it was not liable to pay the respondent because she failed to sue the insured joint tortfeasors.

The Court of Appeal held that an injured insured is not required to sue insured potential joint tortfeasors to access uninsured coverage, and is only disentitled if the joint tortfeasor's insurer admits liability to pay or the insured obtains judgment against them.

The appeal was dismissed.

The plaintiff was injured in a motor vehicle accident caused by an uninsured driver who was fleeing police.

The plaintiff sued the uninsured driver and her own insurer under the uninsured coverage provisions of her policy, but did not sue the police or municipality.

The insurer brought a third-party claim against the police and municipality, arguing that the plaintiff was disentitled from uninsured coverage because she failed to sue the insured joint tortfeasors.

The Court of Appeal dismissed the insurer's appeal, holding that the phrase 'entitled to recover' in the Uninsured Automobile Coverage Schedule means 'entitled to recover in fact', and an injured insured is not required to sue potential joint tortfeasors to access their uninsured coverage.

The appellants appealed an order of the motion judge regarding the litigation guardian for the minor plaintiffs.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that any potential conflict of interest would not impede the litigation guardian's ability to act in the best interests of the children.

Costs of $2,500 were awarded to the respondent.

The appellant appealed a decision striking their pleadings for failing to disclose a reasonable cause of action.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the pleadings disclosed no reasonable cause of action under Article 17 of the Warsaw Convention, citing leading jurisprudence on deep vein thrombosis and air travel.

The appellant insurer appealed the trial judge's decisions regarding misrepresentation, waiver, quantum of damages, and an award of solicitor and client costs.

The Court of Appeal upheld the trial judge's finding that the insurer waived its rights under s. 17(3) of the Statutory Accident Benefits Schedule by validating the contract and continuing to accept premiums after becoming aware of alleged misrepresentations.

The appeal on liability and quantum was dismissed.

However, the Court allowed the appeal on costs, reducing the trial costs to a party and party basis, as the insurer was entitled to put the plaintiff to proof of her claim given the misrepresentations.