CITATION: Yu Peng Ding et al. v. John Doe et al., 2016 ONSC 1690
COURT FILE NO.: CV-11-440260
DATE: 20160315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PUBLIC GUARDIAN AND TRUSTEE as Litigation Guardian for YU PENG DING
Plaintiff
– and –
JOHN DOE, JOHN DOE INC. and STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
Defendants
Lisa Holland, for the Plaintiff
Jennifer Viera, for the Defendant
HEARD: March 2, 2016
LEDERMAN J.
NATURE OF MOTION
[1] This action arises out of a motor vehicle accident which occurred on February 9, 2010. The plaintiff is seeking damages against the defendant, State Farm Mutual Automobile Insurance Co. (“State Farm”) pursuant to the unidentified driver provisions of the plaintiff’s policy of insurance.
[2] State Farm brings this motion for summary judgment to dismiss the plaintiff’s action as against it on the grounds that there was no unidentified vehicle that caused or contributed to this accident, and accordingly, there is no obligation for State Farm to pay any claim pursuant to the unidentified motorist provisions of the plaintiff’s policy of automobile insurance.
UNIDENTIFIED DRIVER – OAPI and OPCF-44R
[3] State Farm’s policy covers injuries caused to the plaintiff as a result of the negligence of an unidentified driver. The unidentified coverage has two components: $200,000 standard coverage pursuant to the terms of the standard Ontario Automobile Policy (“OAPI”), and an additional $800,000 coverage provided by the OPCF-44R Family Protection Coverage Endorsement (“OPCF-44R”).
[4] The coverage under the OAPI is available if the plaintiff establishes on the balance of probabilities that the accident was caused by an unidentified driver. The unidentified driver coverage under the OPCF-44R is available only if the evidence of the plaintiff is corroborated by “other material evidence”. (See Paolucci v. John Doe et al. 2015, ONSC 7675).
APPROPRIATENESS OF SUMMARY JUDGMENT MOTION
[5] The court is entitled to assume that the parties have put before it all of the evidence that would be available for trial. That being so, this court can readily weigh the evidence and make findings of credibility and determine the issues in question, namely, whether there is sufficient evidence to prove, on the balance of probabilities, that an unidentified vehicle was involved in the accident; and if so, whether there is sufficient evidence to prove that the negligence on the part of an unidentified motorist caused the accident; and if so, further, whether there is “other material evidence” as required by OPCF-44R that corroborates the plaintiff’s evidence thereby permitting the plaintiff to access coverage in excess of the statutory minimum of $200,000.
[6] These issues can readily be determined on the basis of the material filed on this motion. Counsel for the plaintiff could not indicate in what way viva voce evidence would add anything to the written record available to the court on this motion. Accordingly, there is no genuine issue requiring a trial and this is an appropriate case for disposition under Rule 20.
THE ACCIDENT
[7] The plaintiff was the driver of a silver van that collided with a guard rail causing heavy front end damage to the front bumper area of that vehicle.
[8] The only evidence with respect to how this motor vehicle accident occurred, comes from (a) the affidavit of the investigating police officer, Nicole Ivanisko, to which is attached her Motor Vehicle Accident report and her contemporaneous notes of her investigation, (b) the plaintiff’s statement to a medical provider on the day of the accident, and his report to his insurer the day after the accident; and (c) the plaintiff’s discovery evidence.
[9] In the course of her investigation, the police officer spoke with both the plaintiff driver and his passenger, Tao Jacky Feng (“Feng”), as well as the driver of a tractor trailer stopped a short distance further up the highway from where the plaintiff’s vehicle had collided with the guard rail.
[10] In her affidavit, Officer Ivanisko, attaches a signed statement of the plaintiff who reported that he was attempting to change lanes when a tractor-trailer looked like it was entering his lane so he swerved to avoid it, spun out and struck the guard rail head on. He stated that the tractor-trailer impacted the front of his vehicle. (emphasis added). He said that he did not see any damage to the tractor-trailer.
[11] Officer Ivanisko, in her affidavit, states that the passenger, Feng, in the plaintiff’s vehicle stated that he observed a tractor-trailer attempting to change lanes, causing the plaintiff to lose control, spin out and strike the guard rail.
[12] Officer Ivanisko states that she observed a tractor-trailer stopped on the side of the highway near the accident scene. She approached the tractor-trailer and spoke with the driver. He advised her that the plaintiff’s silver van was trying to enter his lane of travel which prompted him to honk his horn. He continued driving forward after honking his horn and observed in his rear-view that the silver van had lost control and struck the guard rail.
[13] Officer Ivanisko inspected the tractor-trailer for any signs of damage or contact with the plaintiff’s vehicle and she did not observe any such damage or evidence of contact. She states that she permitted the driver of the tractor-trailer to leave the accident scene because she had determined that the tractor-trailer had no involvement in the accident. As a result, she did not obtain the personal information of the tractor-trailer driver and does not know his identity.
[14] In the Motor Vehicle Accident Report, Officer Ivanisko concluded that the plaintiff lost control of his vehicle while changing lanes and struck the steel guard rail. She does not mention the involvement of any other vehicle in the accident.
[15] Following the accident, on February 9, 2010, when he attended the Trillium Health Centre Emergency Department, the plaintiff reported, as noted in the hospital record, that he “swerved to avoid 18-wheeler.”
[16] On February 10, 2010, the day after the accident, the plaintiff reported to his insurer, State Farm, that he just merged onto the highway when a third party “huge truck” changed lanes into the plaintiff’s lane and impacted the plaintiff’s vehicle on the front left side of the plaintiff’s vehicle.
[17] The plaintiff was asked about the accident at his examination for discovery and he testified as follows:
(a) he was tired at the time of the accident because he had been driving the whole day;
(b) he only had two cups of coffee and one doughnut between 12:00 pm and 1:00 pm and did not eat or drink anything from that point up until the time of the accident at approximately 6:45 p.m.;
(c) the weather was snowy with icy rain. However, he was still driving at approximately 80 to 90 km/hr in the moments before the accident;
(d) he was driving back from Mississauga and about four or five minutes after entering the highway he was rear-ended by another vehicle. (emphasis added)
[18] The plaintiff’s report of the accident being a rear-end impact is the first indication of a rear-end collision. The investigative notes of the police officer comment upon heavy front-end damage to the plaintiff’s vehicle and make no reference to there being any rear-end damage.
ANALYSIS
(a) Faulty Investigation by Police/Insurer
[19] Counsel for the plaintiff points out that the plaintiff provided the police and his insurer with all relevant information about the accident in a timely way, as he was obliged to do. He reported that the tractor-trailer caused him to swerve into the guardrail. Notwithstanding that report, Officer Ivanisko failed to obtain the identification of the driver of the tractor-trailer and State Farm did not take the opportunity to contact Feng immediately after the accident. Counsel for the plaintiff submits that the plaintiff should not bear the prejudice of a faulty police investigation or failure on the part of the insurer to do a proper investigation to ascertain the identity of the tractor-trailer driver: Miller v. Bacchus, (1999) 47 MVR (3d) 154 (Ont. S.C.J.); Johnson v. Doe, (2006) 51174 (Ont. SCJ).
[20] The cases cited by counsel deal with the issue of whether an insured has fulfilled his or her obligation of reasonable diligence to identify the driver/owner of the other vehicle by reporting to the police, and leaving it to the police and possibly the insurer who have the necessary means to do a proper investigation.
[21] There is no issue in the instant case as to whether the plaintiff took reasonable steps to identify the driver of the tractor-trailer. Officer Ivanisko interviewed the driver of the tractor-trailer and saw no evidence of any damage or contact on that vehicle. She concluded, on the basis of her observations and the statements to her that the tractor-trailer was not involved in the accident and there was no need to obtain the identification information of the tractor-trailer driver.
(b) Unreliability of Plaintiff’s Version of Accident
[22] Neither the plaintiff nor Feng provided any evidence on this motion as to how the accident occurred. It should be noted that a plaintiff presently has many capacity deficits and as a result, an order has been obtained appointing the Public Guardian and Trustee as his Litigation Guardian. Further, Feng has been uncooperative with State Farm investigations and has not provided any statements or evidence on this motion.
[23] The onus is on the plaintiff to show on a balance of probabilities that an unidentified driver was involved in and caused the accident.
[24] The plaintiff has, to the extent that he made various statements and gave some evidence on discovery, provided conflicting evidence as to the location of impact on his van by the tractor-trailer and how the accident occurred. When the plaintiff was asked by Officer Ivanisko whether there was any contact between his vehicle and the tractor trailer, he appeared to first respond “No” but then changed his answer to indicate that there was in fact contact between the vehicles. The plaintiff reported to State Farm on February 10, 2010, that there was impact between the tractor-trailer and the front left side of the plaintiff’s vehicle. The plaintiff testified at his discovery, on the other hand, that this was a rear end collision, despite there being no other evidence of this accident being of a rear end nature. Feng, the passenger, made no mention of there being any contact between the two vehicles.
[25] There is conflicting evidence coming from the plaintiff himself and he is not in a position because of his incapacity issues to explain the different versions.
[26] Officer Ivanisko swears in her affidavit that she inspected the tractor-trailer and did not observe any damage to it or any indication that it had been involved in the accident.
[27] On the totality of the evidence, it is just as reasonable to conclude that the plaintiff was solely responsible for this accident as he may not have been fully attentive and was operating his vehicle at an unsafe speed in the weather conditions. On his discovery, the plaintiff had given evidence that he had very little to eat and drink in the hours leading up to the accident; he was fatigued while driving given that he had been driving all day; and was travelling 80 to 90 km per hour in snowy and icy rain conditions in the moments leading up to the accident.
[28] It appears reasonable to conclude that the plaintiff lost control of his vehicle for reasons unrelated to the movements of the tractor-trailer truck. The evidence suggests that the plaintiff attempted an unsafe lane change into a lane already occupied by another vehicle which caused him to swerve and lose control of his vehicle.
[29] The evidence emanating from the plaintiff is conflicting and not reliable. There is no probative evidence sufficient to satisfy the burden on the plaintiff to show on the balance of probabilities that any fault can be found on the part of the tractor-trailer driver or that he was even involved in it.
CONCLUSION
[30] Accordingly, there will be a summary judgment dismissing the plaintiff’s claim under the OAP1 and OACF-44R.
[31] If the parties cannot otherwise agree, costs may be addressed in writing within 30 days.
Lederman J.
Released: March 15, 2016
CITATION: Yu Peng Ding et al. v. John Doe et al., 2016 ONSC 1690
COURT FILE NO.: CV-11-440260
DATE: 20160315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PUBLIC GUARDIAN AND TRUSTEE as Litigation Guardian for YU PENG DING
Plaintiff
– and –
JOHN DOE, JOHN DOE INC. and STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
Defendants
REASONS FOR JUDGMENT
Lederman J.
Released: March 15, 2016