Lewis v. Economical Insurance Group, 2010 ONCA 528

Lewis v. Economical Insurance Group also known as Economical Mutual Insurance Company et al. [Indexed as: Lewis v. Economical Insurance Group]

103 O.R. (3d) 494

2010 ONCA 528

Court of Appeal for Ontario,

Laskin, Feldman and Gillese JJ.A.

July 26, 2010

Insurance -- Automobile insurance -- Unidentified motorist coverage -- Interpretation and construction -- Insured suffering serious head injury as result of walking into nearly invisible steel pole protruding from parked truck -- Insured "struck by" truck within meaning of s. 265(2)(c)(ii)(B) of Insurance Act and s. 1.6(a)(iii) of OPCF 44R Family Protection Coverage Endorsement and "hit by" truck within meaning of s. 5.3.1 of Ontario Automobile Policy -- Insured entitled to coverage -- Insurance Act, R.S.O. 1990, c. I.8, s. 265(2)(c) (ii)(B).

The plaintiff suffered a serious head injury when she walked into a nearly invisible steel pole protruding from a parked truck. Since the truck could not be identified, she sued her own insurer for damages for personal injuries. As she was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" an unidentified automobile (as required by s. 265(2)(c)(ii)(B) of the Insurance Act and s. 1.6(a)(iii) of the OPCF 44R Family Protection Coverage Endorsement) or "hit by" an unidentified automobile (as required by s. 5.3.1 of the Ontario Automobile Policy). The defendant moved for summary judgment to dismiss the claim. The motion judge found that the plaintiff was not struck or hit by the truck, or the pole that protruded from it, because the truck was not moving at the time. Rather, it was the plaintiff who struck or hit the pole. The motion was granted. The plaintiff appealed.

Held, the appeal should be allowed.

The motion judge erred by interpreting the coverage provisions too narrowly. The words "struck by" and "hit by" should be interpreted broadly. The plaintiff was "struck by" or "hit by" the truck. She was entitled to coverage.

APPEAL from the summary judgment of Eberhard J., 2009 34784 (ON SC), [2009] O.J. No. 2853, 75 C.C.L.I. (4th) 254 (S.C.J.) dismissing the claim.

Cases referred to Strum and Co-Operators Insurance Assn. (Re) (1974), 1973 577 (ON SC), 2 O.R. (2d) 70, [1973] O.J. No. 2230, 42 D.L.R. (3d) 52, [1973] I.L.R. Â1-572 at 747 (H.C.J.); [page495] Talbot v. GAN General Insurance Co. (1999), 1999 14796 (ON SC), 44 O.R. (3d) 252, [1999] O.J. No. 1741, 96 O.T.C. 95, 46 M.V.R. (3d) 211 (S.C.J.); Tucci v. Pugliese (2009), 2009 38984 (ON SC), 98 O.R. (3d) 151, [2009] O.J. No. 2956, 75 C.C.L.I. (4th) 277, [2009] I.L.R. I-4872 (S.C.J.), consd Other cases referred to Barton v. Aitchison (1982), 1982 1843 (ON CA), 39 O.R. (2d) 282, [1982] O.J. No. 3510, 139 D.L.R. (3d) 627, [1982] I.L.R. Â1-1584 at 1110, 16 A.C.W.S. (2d) 430 (C.A.); Chambo v. Musseau (1993), 1993 8680 (ON CA), 15 O.R. (3d) 305, [1993] O.J. No. 2140, 106 D.L.R. (4th) 757, 65 O.A.C. 291, 19 C.C.L.I. (2d) 66, 49 M.V.R. (2d) 111, 42 A.C.W.S. (3d) 727 (C.A.); Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co., 1979 10 (SCC), [1980] 1 S.C.R. 888, [1979] S.C.J. No. 133, 112 D.L.R. (3d) 49, 32 N.R. 488, [1980] I.L.R. Â1-1176 at 595, 1 A.C.W.S. (2d) 169 Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, s. 265 [as am.], (1), (a), (2)(c)(ii)(B) Rules and regulations referred to Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 2(1)

John R. McCarthy, for appellant. Gerard T. Tillmann, for respondent.

The judgment of the court was delivered by

LASKIN J.A.: -- A. Overview

[1] On a spring day in 2003, Bonnie Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, gray and nearly invisible. Ms. Lewis did not see the pole until she hit it. The pole struck her above her right eye, near her temple. She fell to the ground, unconscious. She suffered a serious head injury, which has left her cognitively impaired.

[2] Since the truck could not be identified, Ms. Lewis sued her own insurance company, Economical Mutual Insurance Company, for damages for personal injuries. Both her automobile policy and the OPCF Family Protection Endorsement, which was additional insurance she had purchased, provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As Ms. Lewis was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" or "hit by" an unidentified automobile. [page496]

[3] Economical moved for summary judgment to dismiss Ms. Lewis' claim. It contended that she was not struck or hit by the truck, or the pole that protruded from it, because the truck was not moving at the time. Instead, Economical argued that it was Ms. Lewis who struck or hit the pole. The motion judge agreed and dismissed Ms. Lewis' claim.

[4] On her appeal, Ms. Lewis submits that the motion judge erred by interpreting the coverage provisions too narrowly. I agree with her submission. She is entitled to coverage. Whether she is entitled to damages depends on her being able to prove that the unidentified owner or driver of the truck was negligent. I would allow the appeal, set aside the motion judge's order and dismiss Economical's motion for summary judgment. B. Insurance Coverage (1) The Insurance Act

[5] Section 265(1)(a) of the Insurance Act, R.S.O. 1990, c. I.8 requires every car insurance policy to cover insured persons who are injured in an accident involving an unidentified or uninsured automobile:

265(1) Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that, (a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile

[6] Section 265(1)(a) mandates coverage. But an insurer, such as Economical, is liable only for those damages an insured person is "legally entitled" to recover from the owner or driver of an unidentified automobile. Legal entitlement requires an assessment of fault or negligence.

[7] An insured person injured while a pedestrian is covered only if "struck by" an unidentified automobile. Section 265(2) (c)(ii)(B) defines a "person insured under the contract" to mean:

265(2)(c) in respect of a claim for bodily injuries or death, . . . . . (ii) the insured and his or her spouse and any dependant relative of either, . . . . . (B) while not the occupant of an automobile . . . who is struck by an uninsured or unidentified automobile [page497]

[8] This appeal turns on the interpretation of this provision and similarly worded provisions in Ms. Lewis' automobile insurance policy and the family protection endorsement. (2) The Ontario Automobile Policy

[9] The terms and conditions of every motor-vehicle liability policy in Ontario are prescribed by regulation under the Insurance Act. The policy is known as the Ontario Automobile Policy. Section 5.2.1 of the Policy in effect when Ms. Lewis was injured sets out the extent of coverage for injuries resulting from an accident with an unidentified automobile. Section 5.3.1 addresses who is covered under the Policy and specifies that if a person was not the occupant of an automobile when injured, coverage extends only if the person was "hit by" an unidentified automobile:

5.3.1 Who is covered?

The following are insured persons for bodily injury or death:

-- Any person who is an occupant of the automobile.

-- You, your spouse and any dependant relative of you

-- when an occupant of an uninsured automobile, or

-- when not in an automobile, streetcar or railway vehicle if hit by an unidentified or uninsured automobile.

(3) OPCF 44R Family Protection Endorsement

[10] Ms. Lewis bought this additional uninsured and unidentified automobile coverage. The superintendent of financial services approved the terms of this Endorsement. Under s. 1.6(a)(iii) [of the OPCF 44R Family Protection Coverage Endorsement], Ms. Lewis was only covered for her personal injuries claim if she was "struck by" an unidentified automobile:

1.6 "insured person" means (a) the named insured and his or her spouse and any dependant relative of the named insured and his or her spouse while . . . . . (iii) not an occupant of an automobile who is struck by an automobile[.]

[11] Thus, all three coverage provisions -- the Insurance Act, the Ontario Automobile Policy and the Family Protection Endorsement -- raise the same issue: was Ms. Lewis struck or hit by the truck, or the pole protruding from it, as she left the variety store? If the answer is yes, she is an insured person [page498] entitled to coverage for her injuries; if the answer is no, then Economical is justified in denying her coverage. C. Analysis

[12] The motion judge correctly found that the legislative intent of s. 265 of the Insurance Act was to alleviate the plight of motorists injured by drivers of uninsured and unidentified automobiles: see Barton v. Aitchison (1982), 1982 1843 (ON CA), 39 O.R. (2d) 282, [1982] O.J. No. 3510 (C.A.), at p. 287 O.R. As s. 265(2)(c)(ii)(B) covers the insured "while not the occupant of an automobile", logically the same legislative intent extends to the plight of pedestrians injured by drivers of uninsured and unidentified automobiles. The trial judge also correctly noted the principle that because unidentified and uninsured motorist coverage is remedial, it must be interpreted broadly and liberally: see Chambo v. Musseau (1993), 1993 8680 (ON CA), 15 O.R. (3d) 305, [1993] O.J. No. 2140 (C.A.), at p. 308 O.R.

[13] Nevertheless, the motion judge concluded that Ms. Lewis could not invoke her insurer's unidentified automobile coverage because the truck was not moving when she hit the protruding pole. The essence of the motion judge's reasoning is found at paras. 8-10 of her endorsement:

The meaning of "hit" or "struck" is not ambiguous. It is not necessary to specifically exclude individual circumstances that do not fall into that particular meaning such as an individual injured by walking into a parked vehicle. It is no different than walking into any stationary object. The fact of its being an automobile (or a protuberance from an automobile) is irrelevant to the occurrence.

This is quite unlike the circumstance of being hit/struck by something hit by an automobile or falling out of a moving vehicle as it is the movement of the vehicle that applies the force that gives rise to the hit/strike.

It is also unlike the interpretation of "hit/struck" where a moving automobile created a peril which caused the insured to take evasive action which resulted in his injury. There, the visual impact of the automobile caused the injury. In the present case the Plaintiff did not see the pole and walked into it. Nothing about the automobile impacted upon the situation. [Footnotes omitted]

[14] Although the motion judge stated the principle that coverage provisions should be interpreted broadly, I do not think that she applied this principle. Instead, she took quite a narrow or restrictive view of the words "struck by" or "hit by". In my opinion, these words should be interpreted broadly, and a broad interpretation entitles Ms. Lewis to coverage for her injuries. I say this for the following reasons.

[15] First, the words "struck by" or "hit by" must be interpreted in the context of the dominant purpose of this type of [page499] insurance coverage: to compensate victims injured as a result of an accident involving an unidentified automobile. Ms. Lewis was injured in an accident with an unidentified automobile. Indeed, Economical has recognized as much by paying her statutory accident benefits. Section 2(1) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 ("SABS") defines "accident" to mean "an incident in which the use or operation of an automobile directly causes an impairment . . .". In other words, Economical has already accepted that Ms. Lewis was involved in an incident where the use or operation of an automobile directly caused her injuries.

[16] Second, in ordinary parlance, the words "struck by" or "hit by" generally connote simply "coming into contact with" and do not specifically ascribe movement to either object involved. For example, the Canadian Oxford Dictionary, 2nd ed., defines "strike" as "subject to an impact" and defines "hit" as "strike against, crash into, collide with". Accordingly, we do not normally differentiate between "Ms. Lewis was struck by the pole"; "Ms. Lewis struck her head on a pole"; and "the pole struck Ms. Lewis above her right eye".

[17] Third, although the usual case of coverage would involve an automobile that was moving, I do not think that the legislature intended to exclude coverage for injuries resulting from contact with a stationary automobile. If that was the legislature's intent, it could have said so by, for example, limiting coverage to a person "while not an occupant of an automobile who was struck by an automobile, excluding a stationary automobile".

[18] Fourth, the literal interpretation relied upon by Economical is inappropriate because its application brings about an unrealistic result or a result that was not contemplated in the "atmosphere in which the insurance was contracted": see Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co., 1979 10 (SCC), [1980] 1 S.C.R. 888, [1979] S.C.J. No. 133, at p. 901 S.C.R. I find it hard to see any rational distinction between an accident where a person is struck by a protruding pole on a very, very slow-moving truck and an accident where a person is struck by a protruding pole on a stationary truck. In either case, an insured would expect coverage and I seriously doubt the legislature contemplated a scheme that includes one scenario within the ambit of coverage but excludes the other. A literal interpretation, however, would lead to exactly this result.

[19] Fifth, the existing case law shows that courts have extended coverage to persons who were not in any literal sense struck or hit by an automobile. Three cases illustrate this point. [page500]

[20] In Talbot v. GAN General Insurance Co. (1999), 1999 14796 (ON SC), 44 O.R. (3d) 252, [1999] O.J. No. 1741 (S.C.J.), Mr. Talbot, a cyclist, had to take sudden evasive action to avoid colliding with a car that almost struck him and then left the scene. Mr. Talbot suffered injuries and claimed under his unidentified automobile coverage. As in this case, the insurer brought a summary judgment motion on the ground that Mr. Talbot was not "struck" or "hit" by the unidentified automobile. Fleury J. rejected the insurer's position because it called for a restrictive interpretation. He wrote, at pp. 255-56 O.R.:

I am therefore drawn to the inescapable conclusion that the words "if hit by an unidentified or uninsured automobile" are intended to qualify when other insured persons will be covered and that they not impose any restrictions on the named insured.

. . . I am satisfied that where, as here, the offending vehicle came within inches of colliding with the responding party's bicycle, thereby causing a situation of danger where the responding party was forced to take evasive action in order to extricate himself from the perilous conditions created by the offending vehicle, that those words should be interpreted in a broad and generous fashion to include the visual impact visited on Dennis Talbot. I therefore hold that Dennis Talbot was "hit" or "struck" by the unidentified motor vehicle and that he was a right to recover from the defendant[.] In short, Fleury J. rejected the insurer's position because it would have yielded an unrealistic result.

[21] In Tucci v. Pugliese (2009), 2009 38984 (ON SC), 98 O.R. (3d) 151, [2009] O.J. No. 2956 (S.C.J.), Mrs. Tucci was seated at her breakfast table when the uninsured car of the defendant ran into the wall of her house. The resulting sudden loud bang and the violent shaking of the house caused Mrs. Tucci to suffer shock, as well as physical and psychological damage. On the insurer's motion to dismiss her claim, it argued that she was not "stuck by" an automobile. Langdon J. refused to strike the claim because Mrs. Tucci's "injuries arguably resulted from the proximate, sensory invasion, the notional equivalent of being struck".

[22] In Strum and Co-Operators Insurance Assn. (Re) (1974), 1973 577 (ON SC), 2 O.R. (2d) 70, [1973] O.J. No. 2230 (H.C.J.), a pedestrian was standing on a street corner when a car mounted the curb and struck a street sign, bending it over and causing it to strike the pedestrian. Osler J. held that the pedestrian was "struck by the described automobile". He said, at pp. 72-73 O.R.:

The words "struck by the described automobile", if taken to mean only that there must be direct physical contact between the automobile and the person of the claimant, could make the possibility of recovery depend upon minute differences in the circumstances, entirely unpredictable, such as, for example, whether the claimant had been able to interpose between himself [page501] and the automobile some article he was carrying such as a suitcase, a box of tools or unusually thick clothing. In such cases, the force of the impact is transmitted directly to the person of the injured party, regardless of the fact that he has not been "struck by" the automobile in that there is no direct physical contact between himself and it.

. . . Here the force of the impact was transmitted directly to the person of the claimant by an object which was and which remained for the critical period in contact with the automobile. The force was thereby transmitted directly from the automobile to the deceased. This, in my view, amounted to a striking within the meaning of the policy.

[23] In all three cases, a narrow interpretation of the words "struck by" or "hit by" would have disentitled the claimant to coverage, whereas a broad interpretation entitled each claimant to coverage. In all three cases, the court recognized that a narrow or literal interpretation of the words "stuck by" would produce a result contrary to common sense and the legislative intent of s. 265(1) of the Insurance Act. So too is the case with Ms. Lewis' claim. Strum (Re) is particularly instructive; indeed, I agree with counsel for Ms. Lewis that there is no appreciable difference between being struck by a street sign moved by an automobile and being struck by a steel pole protruding from an automobile.

[24] Sixth, my interpretation of these words would not open the floodgates to injury claims by persons who walk into unidentified parked cars. This is a case about coverage, not liability or negligence. If the owner or driver of a parked car was not negligent, the claimant would have no legal entitlement to damages. D. Conclusion

[25] For the above reasons, I would set aside the motion judge's order and dismiss Economical's motion for summary judgment. Ms. Lewis is entitled to the costs of the motion and the appeal, each fixed, on the agreement of counsel, in the amount of $5,000, inclusive of disbursements and GST.

Appeal allowed.