Murphy et al. v. Savoie et al.

[Indexed as: Murphy v. Savoie]

Ontario Reports Court of Appeal for Ontario Lauwers, Fairburn and Zarnett JJ.A. October 3, 2019

148 O.R. (3d) 225 | 2019 ONCA 784

Case Summary

Insurance — Automobile insurance — Interpretation and construction — Insured company's sole delivery driver having flexible schedule and being allowed to take company's van at his own discretion at any time during business hours — Driver's spouse being injured when struck by uninsured motorist after company opened for business but before driver arrived at work — Company's van being available to driver for his "regular use" during company's business hours even if he was not at work — Van being available to driver for his regular use at time of accident — Spouse being "insured person" under s. 1.6(b) of OPCF 44R Family Protection Coverage.

An employee was employed by a company as its sole delivery driver. His schedule was flexible and he was allowed to take the company's van at his own discretion at any time during business hours. The employee's spouse was injured when she was struck by an uninsured motorist after the company opened for business for the day but before the employee arrived at work. The company was insured under an automobile insurance policy that included an OPCF 44R Family Protection Coverage endorsement. Section 1.6(b) of the endorsement provides that an "insured person" includes the spouse of an employee of an insured corporation if the described automobile is provided for the employee's "regular use". The insurer brought a motion for a determination as to whether its policy provided uninsured motorist coverage to the spouse. The motion judge answered that question affirmatively. The insurer appealed.

Held, the appeal should be dismissed.

The van was available for the employee's "regular use" at any time after business was opened for the day, and not just when the employee was actually at work. The van was therefore available for the employee's regular use "as of the time of the happening of the accident" within the meaning of s. 2 of the endorsement. The spouse was an "insured person" under s. 1.6(b) of the endorsement.

Cases Referred To

• Abarca v. Vargas (2015), 123 O.R. (3d) 561, 2015 ONCA 4
• ACE INA Insurance v. Co-operators General Insurance Co.
• Royal & Sun Alliance Insurance Co. of Canada v. Intact Insurance Co. (2017), 138 O.R. (3d) 539, 2017 ONCA 381

Rules and Regulations Referred To

• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(a)
• Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96, s. 66

Judgment

APPEAL from the order of E.M. Morgan J. (2019), 144 O.R. (3d) 299, 2019 ONSC 121 (S.C.J.).

Alan L. Rachlin, for appellant Aviva Insurance Company of Canada.

Stuart Zacharias, for respondents.

Decision

[1] BY THE COURT: -- The appellant, Aviva Insurance Company of Canada, provided automobile insurance to Emblem Flowers that includes an OPCF 44R Family Protection Coverage endorsement.

[2] Emblem Flowers employed the respondent Colm Hogan as a delivery van driver. Benjamin Savoie struck Mr. Hogan's spouse, the appellant Emeralda Burke Murphy, on September 25, 2014, just before 9:30 a.m. Mr. Savoie was uninsured because he was driving a stolen car.

[3] Aviva brought a motion under rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for a determination as to whether the automobile insurance policy issued to Emblem Flowers provides uninsured coverage to Ms. Burke Murphy for her injuries in the accident. The motion judge held that the endorsement did cover her. Aviva appeals.

[4] The motion judge noted, at para. 3, that Mr. Hogan "was the company's sole delivery driver, and the company van was available to him for deliveries on a daily basis throughout the work day". He set the critical factual context, at paras. 8-9:

On the day of the accident, Emblem Flowers opened for business as usual at 9:00 a.m. Mr. Hogan had a flexible schedule, although it was understood that he would regularly arrive at work by 9:30. Mr. Hogan was not required or expected to seek permission from anyone at Emblem Flowers during business hours to take the van's keys off the hook where they were stored or to drive the van in order to make the daily deliveries. He did so at his own discretion.

The precise time of Mr. Hogan's arrival at work on the morning of September 25, 2014 is not certain, although it was likely sometime around 9:30. Mr. Hogan's memory is that he was just arriving at work on his bicycle that morning when he received a phone call on his cell phone advising him that Ms. Murphy had been injured in an accident. As counsel for Aviva points out, the implication of that is that the accident actually occurred sometime just prior to Mr. Hogan arriving at work.

[5] For Ms. Burke Murphy to be entitled to coverage, she must be an "insured person" under s. 1.6 of the endorsement, which provides:

1.6(b) if the named insured is a corporation, an unincorporated association, partnership, sole proprietorship or other entity, any officer, employee or partner of the named insured for whose regular use the described automobile is provided and his or her spouse and any dependent relative of either, while

(i) an occupant of the described automobile, a newly acquired automobile or a temporary substitute automobile as defined in the Policy;

(ii) an occupant of an automobile other than

(a) the automobile referred to in (i) above;

(b) an automobile leased by the named insured for a period in excess of 30 days; or

(c) an automobile owned by the named insured, PROVIDED family protection coverage is in force in respect of the other automobile, or

(iii) not an occupant of an automobile, who is struck by an automobile[.]

(Emphasis added)

[6] Section 2 of the endorsement provides:

2. The definitions in section 1 apply as of the time of the happening of an accident for which indemnity is provided under this change form.

(Emphasis added)

[7] Aviva's counsel asserts that Ms. Burke Murphy would only be covered under the endorsement, properly construing s. 2, if Mr. Hogan was "on duty" at the very moment of the accident.

[8] The motion judge disagreed. His reasoning is set out in paras. 14-16:

As was the case in Old Republic, the Emblem Flowers van was available for Mr. Hogan's use at the time of the accident. Mr. Hogan could have arrived at 9:00 that day -- i.e. the time that Emblem Flowers opened -- and taken the keys and van and started his deliveries. While Mr. Hogan did not use the van for personal use, or sleep in it, or drive it outside of work hours, he had full, discretionary access to the van when the employer's shop was open for business. In this sense, the insured vehicle was being provided for his use at the time that Ms. Murphy was struck, even though he was not in it and was a few minutes away from work.

The agreed statement of facts indicates that the accident occurred just before 9:30 and that Emblem Flowers had been open since 9:00. The claimant in the Old Republic case could have slept in the van and started his deliveries first thing in the morning of the accident, even though he didn't; in much the same way, Mr. Hogan could have arrived at 9:00 when the shop opened and started his deliveries first thing in the morning of the accident, even though he didn't. The fact that Mr. Hogan did not arrive early does not negate the fact that the company vehicle was available for his use as of 9:00 and the accident happened at about 9:30.

I find that section 1.6(b) of the OPCF 44R form is a clause providing coverage for the injuries sustained by Ms. Murphy. Aviva is therefore required in the circumstances to cover the Plaintiffs under the Policy.

[9] Aviva's counsel advises that there is no jurisprudence regarding the interplay of s. 2 and s. 1.6 of the endorsement. This is a case of first impression. He submits that the court should be guided by the "considerable jurisprudence" construing s. 66 of O. Reg. 403/96 (Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996), because of the "similar phrasing".

[10] In particular, s. 66 of O. Reg. 403/96 provides:

66(1) An individual who is living and ordinarily present in Ontario shall be deemed for the purpose of this Regulation to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident,

(a) the insured automobile is being made available for the individual's regular use by a corporation, unincorporated association, partnership, sole proprietorship or other entity[.]

(Emphasis added)

[11] Aviva's counsel invokes the decision of Belobaba J. in ACE INA Insurance v. Co-operators General Insurance Co.. This was a priority dispute between two insurers as to which should pay statutory accident benefits to an injured person.

[12] In the circumstances of this case, we would not accede to counsel's argument as to the usefulness of the SABS jurisprudence. Its purpose is to provide rules to determine priority among insurers, but the purpose of the endorsement is to extend coverage to insureds. These are different purposes. These different purposes provide interpretive context.

[13] More importantly, the language of the provisions is not similar. This court has said: "[O]ne of the main objectives of the regulatory automobile insurance regime in Ontario is consumer protection and guaranteed compensation of victims": Royal & Sun Alliance Insurance Co. of Canada v. Intact Insurance Co. (2017), 138 O.R. (3d) 539, 2017 ONCA 381, at para. 14. This court has also recognized that automobile insurance policies are more than commercial contracts and form part of an "integral social safety net": Abarca v. Vargas (2015), 123 O.R. (3d) 561, 2015 ONCA 4, at para. 37. The extension of spousal protection in the endorsement has precisely this purpose.

[14] As noted, Aviva's counsel asserts that Ms. Burke Murphy would only be covered under the endorsement, properly construing s. 2, if Mr. Hogan was "on duty" at the very moment of the accident. Because Mr. Hogan had not yet arrived at work when the accident occurred, Ms. Burke Murphy is not covered. What counsel calls the "temporal nexus" must be that precise.

[15] We disagree.

[16] There is no doubt, as the motion judge noted, at para. 14, that the van was available for Mr. Hogan's "regular use" any time after the business opened. In our view, this is sufficient to decide the case. As we read the endorsement, s. 2 requires that "at the time of the accident", "the employee" must be one "for whose regular use the described automobile is provided". This is a sufficient temporal nexus.

[17] We have difficulty accepting the notion that coverage under the endorsement would be available if Mr. Hogan had arrived earlier than his customary time, or that it would not be available if he had punctured a tire on his bicycle and had been especially late for work. It is possible to imagine other reasonable hypotheticals that would lead to odd results if Aviva's argument were correct. If the facts fit, as they do in this case, then the employee's spouse is covered. Or, to put it the other way, no words in the endorsement compel the denial of coverage on the facts of this case.

[18] The appeal is dismissed with costs payable by the appellant to the respondent in the agreed amount of $4,500, all inclusive.

Appeal dismissed.

End of Document