Court File and Parties

Court File No.: CV-11-438419 Court File No.: CV-15-534380 Date: 2018-09-26 Superior Court of Justice - Ontario

Re: WILLIAM CONNERS, Plaintiff And: FRANCESCO D’ANGELO, VINCENZA TARTAGLIA aka ENZA TARTAGLIA and GORE MUTUAL INSURANCE COMPANY, Defendants

And

Re: WILLIAM CONNERS, Plaintiff And: UNICA INSURANCE COMPANY, Defendant

Before: LEDERER J.

Counsel: Aliza Karoly, for the Plaintiff Arthur R. Camporese, for the Defendant, Gore Mutual Penny Georgoudis, for the Defendant, Unica Insurance

Heard: September 20, 2018

Endorsement

[1] This endorsement responds to two motions for summary judgment each brought in one of two related actions. They arise from a car accident which took place on June 15, 2010. The plaintiff, William Conners, was a passenger in motor vehicle being driven by Francesco D’Angelo. It was owned by Vincenza Tartaglia and insured by Gore Mutual Insurance Company. Francesco D’Angelo was attempting to make a left turn. He proceeded into the intersection. There was a collision with another vehicle. William Conners was injured.

[2] In one of the two actions he sued both Francesco D’Angelo and Vincenza Tartaglia. In the normal course it would be anticipated that the insurer of the vehicle, Gore Mutual take up the defence of the action and indemnify William Conners for any damages and injury suffered.

[3] There was a problem. Francesco D’Angelo did not have a driver’s licence and, more importantly for the purposes of the relevant motion, was driving the car without the consent of its owner Vincenza Tartaglia. As a result Gore Mutual says its policy does not provide coverage for William Conners and, as a result brings a motion for summary judgment seeking dismissal of the action against it.

[4] William Conners brought a second action against another insurance company, Unica Insurance Company. William Conners was identified as an insured person on a policy held by a past employer. Unica, like Gore Mutual says its policy does not cover William Conners and brings a similar motion asking that the action against it be dismissed.

[5] Both actions are dismissed.

[6] The Insurance Act, R.S.O. 1990, c. I.8, s. 265(1) provides that insurance policies are to give coverage where an identified or uninsured vehicle is involved:

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 an identified automobile as damages for bodily injuries resulting from an accident involving an automobile.

[Emphasis added]

[7] The motor vehicle in which William Conners was riding was uninsured because Francesco D’Angelo, the driver, had taken the car without consent. This was a finding made in a decision of Mr. Justice Perell (see: Conners v. D’Angelo, 2017 ONSC 1104) and accepted by the parties to these motions.

[8] The question raised is whether William Conners was: “a person insured under the contract”. This phrase is defined by the Insurance Act, s. 265(2). The relevant subsection is 265(2)(c)(ii)(A) which states:

265(2) for the purposes of this section:

“Person insured under the contract” means,

(c) in respect of a claim for bodily injuries or death,

(ii) the insured and his or her spouse and any dependent relative of either,

(A) while an occupant of an uninsured automobile

[9] This raises a further question: who is a “person who is insured” or “the insured”. What does “insured” mean? The word is defined in section 224 of the Insurance Act as:

a person insured by a contract whether named or not and includes every person who is entitled to statutory accident benefits under the contract whether or not described therein as an insured person”.

[10] It may or may not be that William Conners is entitled to statutory accident benefits. The Statutory Accident Benefits Schedule, O. Reg. 403/96, s. 2(1) defines “Insured Person”. The definition includes:

[c] a person who is an occupant of the insured automobile, and who is a resident of Ontario.

[11] It does not matter because, in any event, he is not insured “by the contract”. All insurance contracts include policies imposed by legislation. Section 1.8.2 of the Ontario Insurance Policy, under the heading Excluded Drivers and Driving Without permission, provides the following exclusions:

Except for certain Accident Benefits coverage, there is no coverage (including coverage for occupants) under this policy if the automobile is used or operated by a person in possession of the automobile without the owner’s consent or is driven by a person named as an excluded driver of the automobile.

Except for certain Accident Benefits coverage, there is no coverage under this policy for person who, at the time he or she willingly becomes an occupant of an automobile, knows or ought reasonably to know that the automobile is being used or operated by a person in possession of the automobile without the owner’s consent.

[12] The reverse is true. Pursuant to section 3 of the Ontario Automobile Policy, the named insured is covered when they, or anyone else in possession of a described automobile with the named insured’s consent, uses or operates it. These individuals are considered insured persons. In particular, section 3(2), under the heading “Who Is Covered” states:

You are covered when you, or anyone else in possession of a described automobile with your consent, uses or operates it. We will consider these other people insured persons.

[13] The exclusions in section 1.8.2 in company with section 3 are effective to deny coverage to William Conners under the policy held by Gore Mutual.

[14] For these reasons the action as against Gore Mutual is dismissed.

[15] As for Unica, although named on its policy, William Conners had not been employed by its insured for several years. The definition for “person insured under the contract” includes the following as another of its meanings:

265(2) for the purposes of this section:

“Person insured under the contract” means,

(b) in respect of a claim for bodily injuries or death,

(iii) if the insured is a corporation, unincorporated association or partnership, any director, officer, employee or partner of the insured for whose regular use the insured automobile is furnished, and his or her spouse and any dependent relative of the person or the spouse,

(A) while an occupant of an uninsured automobile

[16] At the time of the accident William Conners was not an employee and no automobile was ever furnished by that employer for his use. As with the Gore Mutual policy, William Conners is not insured under the policy held by Unica.

[17] This action is also dismissed.

[18] No submissions were made as to costs. If the parties are unable to agree I will consider written submissions on the following terms:

(1) On behalf of the two moving parties Unica Insurance Company and Gore Mutual Insurance Company no later than 15 days after the release of these reasons, separate submissions each to be no longer than 3 pages double spaced not including any Costs Outline, Bill of Costs or case law that may be referred to.

(2) On behalf of William Conners no later than 10 days thereafter submissions in response to be no longer than 6 pages double spaced, not including any Costs Outline, Bill of Costs or case law that may be referred to.

(3) On behalf of the two moving parties no later than 5 days thereafter, in reply if necessary such submissions to be no longer than 2 pages in total such submissions to be double spaced.

Lederer J. Date: September 26, 2018