ONTARIO
SUPERIOR COURT OF JUSTICE
Court File Nos. CV-09-393654 and CV-09-393813
Date: 20130404
B E T W E E N:
MERISSA ARMSTRONG, CARL RUSAN, JANET RUSAN, and JOHN ARMSTRONG, DYLAN ARMSTRONG and MICHAEL ARMSTRONG, minors by their Litigation Guardian, Philip Armstrong, and PHILIP ARMSTRONG, personally
Plaintiffs
Mr. Adam K. Wagman, Mr. D. Joel Dick for the Plaintiffs
- and -
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO
Defendants
Ms. Patti Shedden for the Moving Party, the Dominion of Canada General Insurance Company
HEARD: February 14, 2012
M.A. SANDERSON J.
Reasons for Decision
INTRODUCTION
[1] The Dominion of Canada General Insurance Company ("Dominion"), the insurer of the Plaintiffs' vehicle, brings this motion for partial summary judgment/a declaration that Dominion cannot be held liable for any amounts in excess of the $200,000.00 available to the Plaintiffs under s. 265 of the Insurance Act. Its counsel submits there is no genuine issue requiring a trial in relation to coverage under the OPCF 44R.
[2] Counsel for the responding party resists this motion for summary judgment on the basis that the requirement in the OPCF 44R that there be physical evidence indicating the involvement of an unidentified automobile has been met.
THE ISSUE
[3] The Plaintiffs' claims are brought pursuant to the “unidentified motorist” provisions of that Policy.
[4] Here, the eligible claimant, Merissa Armstrong, has maintained since regaining consciousness that the accident of December 19, 2007 was caused by an unidentified red car.
[5] Paragraph 7 of the Amended Statement of Claim reads as follows:
On or about December 19, 2007, the Plaintiff, Merissa Armstrong, was operating a motor vehicle in a safe and prudent manner northbound on 2nd Line of Tosorontio near its intersection with 5th Sideroad. The roadway was snow covered. Suddenly, and without warning, an unidentified motor vehicle proceeding southbound on 2nd Line entered into the northbound land, causing the Plaintiff's motor vehicle to take evasive action. Due to the condition of the roadway, the Plaintiff's motor vehicle, in the process of taking evasive actions, left the roadway and violently rolled over. The unidentified motor vehicle did not stop, the operator of the unidentified motor vehicle never identified himself or herself, and the Plaintiffs have been unable to obtain any identifying information. As a result of the aforementioned series of events, the Plaintiff, Merissa Armstrong, sustained catastrophic permanent personal injuries as hereinafter described.
[Emphasis added.]
[6] Dominion provided liability coverage to the Armstrong under Dominion policy number APP1805307 (“the Policy.”) The unidentified driver coverage in the Policy has two components: (1) $200,000.00 coverage pursuant to the terms of the Ontario Standard Policy and s. 265 of the Insurance Act; and (2) additional coverage pursuant to the terms of an optional endorsement, the Family Protection Coverage OPCF 44R (“the OPCF 44R.”)
[7] The first component is not at issue on this motion. It is the second component, additional coverage pursuant to the optional endorsement, the Family Protection Coverage, that is at issue here.
[8] The Optional Family Protection Coverage provision, OPCF 44R, includes the following:
(C) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant's own evidence of the involvement of such automobile must be corroborated by other material evidence [emphasis added].
[9] Counsel for Dominion submitted the plaintiffs are not entitled to coverage under the OPCF 44R unless they have “other material evidence” to corroborate Armstrong’s evidence of another vehicle.
[10] “Other material evidence” is defined in the OPCF 44R as: (i) independent witness evidence, other than evidence of a spouse as defined in section 1.10 of this change form or a dependent relative as defined in section 1.2 of this change form; or (ii) physical evidence indicating the involvement of an unidentified automobile.
[11] Counsel for Dominion submitted the Plaintiffs have no "other material evidence" that meets the requirements of OPCF 44R. There is no evidence from an independent witness.
THE FACTS
[12] Representatives of the Ontario Provincial Police attended the accident scene on December 19, 2007.
[13] In the Motor Vehicle Accident report, Officer Thomas Shantz of the Nottawasaga Ontario Provincial Police concluded that the Armstrong vehicle left the roadway, veered to the right, hit a hydro pole, and rolled into trees.
[14] Sometime after May 2, 2008, the police also prepared a Technical Collision Investigative Report (the “Investigative Report”), using data collected from the Armstrong vehicle’s Sensor Diagnostic Model.
[15] In her submissions before me, counsel for the Dominion relied on the following conclusions in the Investigative Report:
(a) the roadway “had a combination of wet pavement suitable in width for tires to travel for both north and southbound traffic” (at page 16);
(b) the tire marks of the Armstrong vehicle show it was travelling northbound (at page 15);
(c) the arcing of the tire marks indicates the Armstrong vehicle was being steered to the right as braking was being applied (at page 15);
(d) north of these tire marks there were fresh deer tracks from west to east (at pages 4 and 15);
(e) data from the vehicle’s Sensor Diagnostic Module indicates Armstrong was pumping the brake pedal in order to gain control of her vehicle (at page 15);
(f) Armstrong lost control and slid clockwise toward the east ditch (at page 4).
(g) There were no tire marks located in the area of the deer prints at the collision scene that would have indicated a southbound travelling vehicle. However, those tire marks could have been destroyed due to responding emergency personnel at the scene. It would be expected that a west to east travelling deer would cause a southbound driver to either steer right (west) towards the ditch or steer left (east) towards the deer, striking it. If a southbound vehicle had steered to the right, tire marks would have been located in the snow on the shoulder or the vehicle would have landed in the west ditch.
(h) The proximity and the west to east direction of the deer tracks to the longest tire mark are indicative of the [Armstrong vehicle] steering right after attempting to avoid the hazard of the deer. [Emphasis added].
[16] Counsel for the Plaintiff submitted the conclusions in the Investigative Report are incorrect, based as they were on fresh deer tracks located north of the Armstrong tire marks. He pointed to the police field notes of Constable Shantz taken at the scene, mentioning old deer tracks south of the Armstrong tire marks: “s/of tire marks going from west to east w/ slush/snow in deer prints (old)" [Emphasis added.]
[17] Counsel for the Plaintiff retained an expert, Craig C. Wilkinson ("Wilkinson"), Professional Engineer of MEA Forensic, to review the physical evidence. Based on that physical evidence, he noted the following at para. 5.0, Discussion:
The police photographs show that there were only three vehicle track marks along the otherwise snow and slush covered roadway. This pattern most likely resulted from northbound and southbound traffic sharing the same middle wheel track. If Ms. Armstrong was driving along the roadway with her left side tires following the middle wheel track, she would have needed to move over to the right in order to safely pass an oncoming vehicle. In the case of any two vehicles travelling in opposite directions on this road, one or both of the drivers would have had to steer to the right to avoid a collision.
[Emphasis added.]
[18] Wilkinson's conclusions included the following:
Ms. Armstrong steered to the right when her vehicle was at least 52 meters south of the utility pole.
Ms. Armstrong applied braking that was hard enough to partially lock her vehicle's front wheels between 28 and 79 meters south of the utility pole.
The physical evidence of steering to the right and braking by the Armstrong vehicle is consistent with Ms. Armstrong trying to avoid an oncoming vehicle as described during her examination for discovery.
The available physical evidence is more consistent with Ms. Armstrong making an avoidance manoeuvre than attempting to recover from a loss of control.
The three tracks through the snow and slush on the road surface are consistent with north and southbound vehicles sharing the middle tire track. If a north and southbound vehicle were on 2nd Concession at the same time, one or both vehicles would have had to move to the right to avoid a collision.
[Emphasis added.]
THE LAW
[19] The issue to be determined here is whether the Plaintiffs have other material evidence, physical evidence corroborating Armstrong’s evidence that an unidentified red automobile was involved in the accident.
[20] Counsel for the Dominion submitted the Plaintiffs’ evidence, including the engineering report of Wilkinson, does not constitute other physical evidence of the involvement of another vehicle.
[21] Counsel for Dominion relies on the following passages from Pepe v. State Farm Mutual Automobile Insurance Company, 2010 ONSC 2977:
[10] It is clear that the intention of this section is to limit the ability of individuals to make claims against their OPCF 44R policies for claims involving unidentified vehicles unless there is independent evidence to corroborate the involvement of a vehicle whose driver or owner cannot be ascertained. Further, the individual who corroborates the evidence of the claimant cannot be the spouse or a dependant of the claimant.
[13] In my view, the language of the section is clear and unambiguous. If a claimant wants to bring an action against the insurer pursuant to the terms of the OPCF 44R, that individual’s evidence must be corroborated either by physical evidence or, alternatively, by independent evidence that does not come from a spouse or dependant relative. In this case, the evidence of Ms Aguirre would qualify as she is not a member of the class that is specifically prohibited from providing corroborative evidence.
[22] Counsel for the Defendant submitted the circumstances here are substantially similar to those in Moein-Ziaie v. Axa Insurance, where the plaintiff alleged he was cut off by an unidentified motor vehicle, the insurer took the position that there was no evidence indicating the involvement of another vehicle making the requirements of OPCF 44R and where Pepall J. (as she then was) granted summary judgment to an insurer.
[23] Pepall J. reasoned as follows:
There is no independent witness. There was no contact between the Plaintiff’s vehicle and any other automobile. Additionally, there is no physical evidence indicating the involvement of an unidentified automobile. The evidence identified by the Plaintiff and described in paragraph 11 herein does not constitute other material evidence of involvement of another automobile.
[Emphasis added.]
[24] In Moein-Ziaie, the Plaintiffs tendered no accident reconstruction report to rebut the conclusions of the investigating officer; there was no evidence of braking: the tire tracks indicated the Plaintiff's car left the roadway in a slow and gradual manner; and, there was no evidence that the driver had engaged in an avoidance manoeuvre.
Conclusions
[25] I accept the submission of counsel for the Plaintiffs that Pepe is irrelevant in resolving the issue in this case.
[26] In Pepe, it was conceded Pepe had no physical evidence to meet the OPCF 44R upon which he could rely. D. Wilson J. noted at para. 11: "In the case before me, it is conceded that there is no physical evidence that Pepe can rely on to bring him within the section."
[27] I am of the view that the facts here are very different from those in Moein-Ziaie.
[28] In Moein-Ziaie, there was no sign of the plaintiff applying the brakes. There was no evidence to indicate the driver took evasive action. There was no reconstruction expert evidence of any kind. Here, the police officer who investigated at the scene noted “deer tracks (old)” found south of the tire marks. Dominion relies on information in the Technical Collision Investigative Report completed sometime after May 7, 2008 referring to fresh deer tracks located north of the tire marks. In my view, the physical evidence of the deer tracks/the location of the deer tracks, i.e., whether they were north or south of the Armstrong tire tracks, could be important at trial. A trial judge might well conclude that if the deer tracks were south of the tire tracks (i.e., behind Armstrong when she veered to the right) as noted in the field notes, the conclusion in the Technical Collision Investigative Report that a deer caused Armstrong to swerve to the right was incorrect. Both the police and Wilkinson found physical evidence that Armstrong steered to the right and braked. Wilkinson concluded that that physical evidence was more consistent with Armstrong's evidence about an avoidance manoeuvre e.g., avoiding an unidentified vehicle, than a loss of control. She would not have swerved to avoid a deer that was behind her. There is physical evidence here capable of corroborating Armstrong's evidence that she swerved to the right to avoid an oncoming red car. On the physical evidence here, a fact finder at trial could find that the red car caused her to swerve to the right.
[29] Here, I must determine whether there is physical evidence indicating the involvement of an unidentified vehicle.
[30] The wording of the statute suggests that a claimant's own evidence can be relevant if it is corroborated by other material evidence. Other material evidence includes physical evidence indicating the involvement of an unidentified automobile.
[31] The Canadian Oxford Dictionary defines "indicate" as follows: “be a sign or symptom of; express the presence of.”
[32] Is "physical evidence indicating the involvement of an unidentified vehicle?
[33] Here, there are several types of physical evidence which, if accepted by the fact finder at trial, are capable of supporting the conclusion that the Plaintiff took evasive action to avoid an oncoming unidentified vehicle.
[34] The physical evidence here that could be held to indicate the involvement of an unidentified driver includes: black box Sensor Diagnostic data evidence from the Armstrong vehicle [upon which a Court could conclude she was steering to the right and braking to avoid an oncoming vehicle]; tire tracks [that could be interpreted by a fact finder as indicating that north and southbound traffic was sharing a single lane, the Armstrong vehicle was braking and steered to the right to avoid something]; other physical evidence recorded in the notes of the investigation, including deer tracks south of tire marks.
[35] Here, the physical evidence enumerated earlier, if interpreted in the manner suggested by Wilkinson, would in my view be capable of "being a sign of" the presence of an unidentified vehicle [especially given the content of Constable Shantz's original field notes and the questionable nature of the conclusion of the Investigative Report that Armstrong swerved to avoid a deer.]
[36] Wilkinson, after considering the physical evidence including the tire marks, opined that Armstrong steered to the right, applied braking hard enough to partially lock her front wheels between 28 and 79 meters south of the utility pole. He concluded that the physical evidence was "consistent with Ms. Armstrong trying to avoid an oncoming vehicle as described during her examination for discovery;" … "more consistent with Ms. Armstrong making an avoidance manoeuvre than attempting to recover from a loss of control."
[37] Given the disagreements as to the location of the deer tracks and the need to hear expert evidence interpreting the physical evidence, this is a matter requiring a trial.
[38] In my view, there is physical evidence here that could be found to indicate the involvement of an unidentified automobile within the OPCF 44R Family Protection Coverage definitions." There is physical evidence that could be found to corroborate the Plaintiffs' evidence that a red unidentified automobile entered the northbound land, causing her to take evasive action and causing her injuries. Dominion has failed to discharge its burden to show that there is no physical evidence which indicates the presence of another motor vehicle.
DISPOSITION
[39] The motion is dismissed.
[40] Counsel may make written cost submissions no longer than two pages on or before April 24, 2013.
M.A. SANDERSON
Released:
Court File No. CV-09-393654 and CV-09-393813
Date: 20130404
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MERISSA ARMSTRONG, CARL RUSAN, JANET RUSAN, and JOHN ARMSTRONG, DYLAN ARMSTRONG and MICHAEL ARMSTRONG, minors by their Litigation Guardian, Philip Armstrong, and PHILIP ARMSTRONG, personally
Plaintiffs
- and –
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO
Defendants
REASONS FOR DECISION
M.A. SANDERSON J.
Released: April 4, 2013