Franca Pingue v. Unifund Assurance
CITATION: Pingue v. Unifund Assurance, 2016 ONSC 7791
FILE NO.: DC 10747/15
DATE: 2016/12/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Maddalena J.
B E T W E E N:
Franca Pingue
Self-represented
Plaintiff (Appellant)
- and -
Unifund Assurance
Bradley M. Remigis, for the Defendant (Respondent)
Defendant (Respondent)
APPEAL HEARD at Welland, Ontario: October 28, 2016
DECISION ON APPEAL
[1] This is an appeal from the decision of Deputy Judge T. Marshall of the Ontario Small Claims Court released at Welland on August 13, 2015.
[2] The action arises as a result of a motor vehicle accident that occurred on May 28, 2014 in the church parking lot of St. Thomas More Church in Niagara Falls, Ontario.
[3] The motor vehicle accident occurred between the appellant (“Pingue”) and a third party, Helen Harper (“Harper”).
[4] The appellant initiated the action as against Unifund Assurance as her insurer for its failure to pay for the resulting property damage to her motor vehicle.
[5] The appellant did not have collision coverage for her vehicle, therefore recovery is based on the degree of fault of the insured as determined under the Insurance Act, R.R.O. 1990, Reg. 668, pertaining to the fault determination rules.
[6] The appellant was found by the trial judge to be 100 per cent at fault for the motor vehicle.
[7] The appellant submits in this appeal that she should be found to be zero percent at fault or, at most, 25 per cent at fault.
The Position of the Appellant
[8] The appellant had a motor vehicle insurance policy with the defendant. On May 28, 2014 she went to St. Thomas More Church in Niagara Falls for a baptism ceremony. She was driving a yellow BMW convertible.
[9] Pingue arrived in the church parking lot and noticed a Lexus double parked (from photos submitted at trial, this meant the right side of the Lexus was on the white line delineating the parking spaces).
[10] There were two open parking spaces to the right of the Lexus, and the appellant parked in a parking space furthest away from the Lexus.
[11] According to the appellant, as she started to exit her vehicle, the vehicle driven by Harper hit her driver’s door. Initially, Pingue suggested Harper’s speed was 70 kilometres per hour, but later suggested Harper was travelling at 40 kilometres per hour.
[12] Pingue testified her driver’s door would have been open “two fingers” when it was hit by the Harper vehicle. Pingue states that Harper “hurriedly struck Pingue’s left side” and came into Pingue’s clearly marked parking space.
[13] As a result, Pingue stated her vehicle was damaged at her driver’s door. She stated the accident was caused wholly by Harper’s speed.
[14] The estimate of Pingue’s claim for damages to her vehicle initially was $2,883.27, but later there was an additional estimate for an additional $1,000 in damages, this bringing the total claim to $3,883.27.
[15] Pingue submitted a claim to the respondent, which claim was denied.
[16] Pingue states the trial judge erred both in fact and in law. Pingue states in her appeal that she did not open her door wide as suggested by the trial judge nor did she strike Harper’s vehicle. Rather, she submits it was Harper’s speed that caused the accident.
[17] Further, Pingue argues the trial judge ought to have used either fault rule 17.1 or, alternatively, the ordinary rules of negligence whereby she is either not at fault or, in the alternative, at most 25 per cent at fault.
[18] She states the trial judge wrongly applied rule 19(c) of the fault rules.
The Position of the Respondent Unifund Assurance
[19] Harper was also to attend the baptism ceremony.
[20] Harper saw a parking space beside a yellow BMW and turned into it to park when suddenly, Harper states, the driver’s door of the BMW “swung open really quickly”.
[21] Harper states that at the time of impact she was proceeding at approximately two to four miles per hour (or, alternatively, three to six kilometres per hour).
[22] Harper stopped when she saw the door swing and the door was “wide open” at impact. She stopped to see “what hit her” and saw Pingue with a tray of coffee in her hand.
[23] The trial judge correctly found Pingue “flung” her door open into the path of the Harper vehicle. Further, the trial judge correctly found the accident was caused by the opening of Pingue’s driver’s side door into the path of the Harper motor vehicle.
[24] The trial judge correctly applied the law and attributed 100 per cent of the cause of the accident to the appellant.
[25] This court should not interfere with the findings of the trial judge.
Standard of Review
[26] The Standard of Review for this Appeal is as set out in the case of Jarlian Construction Inc. v. Waterloo (City), 2008 13186 (ON SCDC).
[27] There the court stated as follows:
“The rule with respect to the review of a trial judge’s findings, is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness. The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error. Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review than for the findings of fact.”
[28] This standard of review was also set out in the case of Tuchenhagen v. Mondoux, 2011 ONSC 5398, 107 O.R. (3d) 675. Here the court confirmed the principles as annunciated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R., 235 and those principles are as follows: “the standard of review on a question of law is that of correctness” and an appellate court is free to substitute its own opinion for that of the trial judge (para.8); -“[t]he standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a ‘palpable and overriding error’” (para.10);-The standard of review on questions of mixed law and fact “lie along a spectrum…where the legal principle is not readily extricable, then the matter is one of mixed law and fact’ and is subject to a more stringent standard…where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error’ (para.36).”
[29] Therefore, absent an error in law and/or a palpable and overriding error on a factual matter, the trial judge’s decision is entitled to deference.
Analysis
[30] The trial judge made specific findings of fact based on the evidence he heard at trial.
[31] He specifically noted the credibility of witnesses as an important factor in his decision. In this regard, he noted that the evidence of Harper was more credible than that of Pingue.
[32] He further noted that Harper recalled the facts and expressed them in a more clear fashion than did Pingue.
[33] He noted critically that Pingue’s evidence regarding the speed of the Harper vehicle as it pulled into the parking space at 40 kilometres per hour was “a wild exaggeration”. He found as more credible that the speed was likely closer to Harper’s estimate, which was two to four miles per hour, or three to six kilometres per hour.
[34] The trial judge also noted that the damage to the Pingue vehicle was consistent with Harper’s version of the facts, that is, with Harper starting to enter the parking space and Pingue’s door being “flung open” into the path of the Harper vehicle.
[35] The trial judge also found that the impact occurred within the Harper parking space. He therefore conclude that he preferred Harper’s evidence to that of Pingue’s evidence who said that the impact occurred in Pingue’s parking space. The trial judge also noted that Harper would not have been able to have her mother, who was with her in the vehicle, exit the vehicle if her vehicle was in the Pingue parking space as alleged by Pingue.
[36] The role of an appellate court is not to retry a case or substitute its own views for the views of the trial judge.
[37] The standard of review for findings of fact is that such findings are not to be reversed unless it can be clearly established that the trial judge made a “palpable and overriding error”.
[38] Trial judges are to be given a high degree of defence, particularly with respect to issues of credibility of witnesses and findings of fact. The trial judge is in the best position to assess credibility of witnesses and to make findings of fact. Therefore, great deference is given to the trial courts regarding findings of fact, as the trial judge is exposed to the entire case. The trial judge is the only person who is able to view the entire case as a whole. Appellate courts are not in as favourable a position to assess and determine factual matters. Thus, deference is to be given to the trial court on issues of fact, absent a palpable and overriding error.
[39] The appellant and respondent disagree over which of the fault determination rules are applicable in this instance. Fault rule 17(1) states as follows:
If automobile “A” is parked when it is struck by automobile “B”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident. R.R.O. 1990, Reg 668, s. 17(1)
[40] Fault rule 19(c) states as follows:
The driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for an incident that occurs,
(c) when the driver of, or a passenger in, automobile “A” opens the automobile door or leaves the door open. R.R.O. 1990, Reg. 668, s. 19
[41] The appellant also referenced rule 4 of the fault determination rules. Rules 4(1) and 4(2) state as follows:
If more than one rule applies with respect to the insured, the rule that attributes the least degree of fault to the insured shall be deemed to be the only rule that applies in the circumstances. R.R.O. 1990, Reg. 668, s. 4(1)
Despite subsection (1), if two rules apply with respect to an incident involving two automobiles and if under one rule the insured is 100 per cent at fault and under the other the insured is not at fault for the incident, the insured shall be deemed to be 50 per cent at fault for the incident. R.R.O. 1990, Reg. 668, s. 4(2)
[42] The trial judge appropriately addressed all three referenced rules and analyzed their applicability in a thoughtful and logical manner.
[43] The trial judge held correctly that rule 17(1) deals with a parked car and no other consideration. He correctly determined that this rule is not applicable to the current circumstances.
[44] Rule 19(c) involves a situation where a driver in one automobile opens the door and strikes a second automobile, thus leaving the driver of the first automobile 100 per cent at fault.
[45] The trial judge correctly found that the applicable fault determination rule is rule 19(c).
[46] Further, the trial judge also correctly considered the applicability of s. 263(4) of the Insurance Act. Section 263(4) states as follows:
An insured may bring an action against the insurer if the insured is not satisfied that the degree of fault established under the fault determination rules accurately reflects the actual degree of fault or the insured is not satisfied with a proposed settlement and the matters in issue shall be determined in accordance with the ordinary rules of law. R.S.O. 1990, c. I.8, s. 263(2-4)
[47] The trial judge concluded that Pingue’s actions in suddenly opening her vehicle door into the path of the Harper vehicle was negligent. Further, based on his findings of fact, he found no contributory negligence on the part of Harper. He further found that Harper was driving slowly into the parking spot when suddenly confronted with an open door in her line of travel. Accordingly, he found the appellant negligent and 100 per cent responsible for the motor vehicle accident.
[48] Accordingly, I find no palpable and overriding error with respect to the findings of fact made by the trial judge. I further find that the trial judge correctly applied the law.
[49] Therefore, the appeal is dismissed.
Costs
[50] Unless otherwise agreed, costs submissions may be made in writing, limited to two pages plus a bill of costs, plus any applicable offers to settle. The respondent’s submissions are due by December 23, 2016. The appellant’s submissions are due by January 9, 2017.
Maddalena J.
Released: December 12, 2016
CITATION: Pingue v. Unifund Assurance, 2016 ONSC 7791
FILE NO.: DC 10747/15
DATE: 2016/12/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Maddalena J.
B E T W E E N:
Franca Pingue
Plaintiff (Appellant)
- and –
Unifund Assurance
Defendant (Respondent)
DECISION ON APPEAL
Released: December 12, 2016