Rougoor v. Co-operators General Insurance Company [Indexed as: Rougoor v. Co-operators General Insurance Co.]

99 O.R. (3d) 139

Court of Appeal for Ontario,

Sharpe, MacFarland and Watt JJ.A.

January 25, 2010

Insurance -- Automobile insurance -- Interpretation and construction -- "Automobile" -- Plaintiff's automobile insurance policy covering her own dirt bike -- Plaintiff injured in Florida while riding friend's uninsured dirt bike which was same make and model as her own -- Policy defining "automobile" as including "other automobile driven by you" -- Florida dirt-bike an "automobile" within meaning of policy.

The plaintiff's automobile insurance policy, issued by the defendant, covered her dirt bike. The plaintiff was injured in Florida while riding a friend's uninsured dirt bike. The defendant denied the plaintiff's claim for statutory accident benefits, and the application judge dismissed the plaintiff's application for a declaration of entitlement. The plaintiff appealed.

Held, the appeal should be allowed.

The Florida dirt-bike was an "automobile" within the meaning of the insurance policy. The policy defined "automobile" as including "a described automobile" and "other automobile driven by you". The word "automobile" when used in the policy should be given a consistent meaning. As the plaintiff's dirt bike was an "automobile" for the purpose of coverage under the policy, the Florida dirt-bike should also be considered to be an "automobile" under the terms of the policy.

APPEAL from the judgment of Moore J. of the Superior Court of Justice dated July 20, 2009 dismissing an application for a declaration of entitlement to statutory accident benefits. [page140]

Cases referred to

Adams v. Pineland Amusements Ltd. (2007), 88 O.R. (3d) 321, [2007] O.J. No. 4724, 2007 ONCA 844, 231 O.A.C. 177, 55 C.C.L.I. (4th) 1, 54 M.V.R. (5th) 25, 162 A.C.W.S. (3d) 1022, 289 D.L.R. (4th) 744

Loretta P. Merritt, for appellant.

Philippa G. Samworth, for respondent.

[1] Endorsement BY THE COURT: -- The appellant is insured under a standard automobile policy with the respondent, Co- operators, for each of several family-owned vehicles. The appellant is listed as principal driver for one off-road dirt bike and as secondary driver for another off-road dirt bike.

[2] The appellant was seriously injured in Florida while riding a dirt bike of the same make and model as one of the insured dirt bikes. That Florida dirt-bike was owned by a friend. Under Florida law, the friend was not required to insure his dirt bike and he had not done so.

[3] The respondent denied the appellant's claim for Statutory Accident Benefits ("SABs") under her standard automobile policy and the application judge dismissed her application for a declaration of entitlement.

[4] The issue is whether the Florida dirt-bike is an "automobile" within the meaning of the appellant's policy or under an extended definition of "automobile" under any applicable legislation.

[5] It is common ground that the test to be applied is that set out in Adams v. Pineland Amusements Ltd. (2007), 2007 ONCA 844, 88 O.R. (3d) 321, [2007] O.J. No. 4724 (C.A.), at para. 7:

(i) Is the vehicle an "automobile" in ordinary parlance?

If not, then,

(ii) Is the vehicle defined as an "automobile" in the wording of the insurance policy?

If not, then,

(iii) Does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?

[6] The appellant concedes that the dirt bike she was riding is not an "automobile" in common parlance under the first branch of the Adams test.

[7] That brings us to the second branch and, in our view, the central issue on this appeal, namely, whether the dirt bike is an "automobile" in the wording of the policy. In our view, the answer to that question is yes.

[8] The definition section of the policy defines "automobile" as:

In this policy, there is a difference between a described automobile and the automobile. When we refer to an automobile as described, we mean any automobile specifically shown on the Certificate of Automobile Insurance. [page141]

When we refer to the automobile, we mean: -- a described automobile, -- a newly acquired automobile, -- a temporary substitute automobile, -- other automobile driven by you, or driven by your spouse who lives with you, or -- trailers, in certain circumstances. (Emphasis added)

[9] The policy provides for coverage with respect to automobiles driven in both Canada and the United States. Accordingly, if the Florida dirt-bike falls within the definition of "automobile" under the policy, the appellant is entitled to SABs.

[10] It is clear that the appellant's own dirt bike is covered as an "automobile" under the terms of her policy. In our view, the word "automobile" when used in the policy must be given a consistent meaning. As the appellant's dirt bike is an "automobile" for the purpose of coverage under the policy, the dirt bike in Florida must also be considered to be an "automobile" under the terms of the policy. Simply put, the appellant purchased insurance to cover the risk of riding a dirt bike. The policy provided that coverage by treating the dirt bike as an "automobile" and extended coverage for any other "automobile" driven by the appellant in Canada or the United States.

[11] Adams directs consideration of the any extended definition of automobile under relevant legislation only where the policy definition is not met. In our respectful view, the application judge erred by deciding the case on the basis of the legislation rather than on the plain language of the policy. Accordingly, we find it unnecessary to decide whether he correctly interpreted the legislation.

[12] Accordingly, the appeal is allowed, the judgment is set aside and a declaration is granted that the appellant is entitled to SABs. Costs to the appellant fixed at $5,000 for the appeal and $25,000 for the application, both figures inclusive of disbursements and GST.

Appeal allowed.