In a recent Ontario decision, the court rejected the insurer’s claim that a plaintiff who was injured in a “hit-and-run” car accident failed in her obligation to collect the driver’s information.
Plaintiff in Car Accident with an “Unknown Driver”
The plaintiff initiated an action for damages she suffered when an unidentified motorist struck her as she drove her electric scooter through a parking lot. After the vehicle made contact with the plaintiff, she was propelled to the pavement, flying 4 to 5 feet after being struck; she injured her right arm and right leg in the collision.
As she was lying on the pavement, the plaintiff remembered the driver emerging from his vehicle and surveying the damage to his car. He never spoke to the plaintiff, nor did she talk to him. The plaintiff conceded that while the driver was outside and surveying the damage to his vehicle, she would have had the opportunity to ask him his name and for his contact information. Pressed about her failure to do so, she stated: “I was in shock. I just got hit by a car,” “everything was so fast,” and “I was worried about what happened to me.” Additionally, the plaintiff did not call 911 after the accident, nor did she ask her husband to do so, stating: “I was in shock. I didn’t think of it. It’s not the first thing that really hit my mind. … I guess I should have, but I didn’t.”
The plaintiff’s husband, who witnessed the accident and ran to her side immediately after, also admitted that he had not askedthe driver for his name, address, or insurance information, nor did he tell the driver not to leave. However, the husband explained that: “I wasn’t worried about him, I was worried about [the plaintiff].”
As a result, the plaintiff sued the unknown driver as “John Doe” and sued her husband’s automobile insurer.
The insurance agreement between the insurer and the plaintiff’s husband provided coverage for the plaintiff, as the policy holder’s spouse. It insured her for bodily injuries she might suffer if struck by an “unidentified automobile,” which meant any other automobile where “the identity of either the owner or driver cannot be ascertained.”
However, the insurer denied liability, arguing that the plaintiff’s claim did not involve a situation in which either the owner or driver of the vehicle that struck her could not have been ascertained through reasonable means. It contended that despite having “every opportunity” to identify the vehicle owner or driver, the plaintiff made no effort to do so. The insurer therefore sought an order for summary judgment,arguing that there was no triable issue concerning its potential liability, and, therefore, the court should dismiss the action.
In turn, the plaintiff maintained that, in all of the circumstances, she did not unreasonably fail to identify the driver or record his license plate. In that regard, she emphasized her condition after being struck and injured, combined with the driver’s swift departure from the scene following the accident.
What is an Unidentified Automobile?
The automobile insurance policy agreement between the plaintiff’s husband and the insurer included the O.P.C.F. 44R Family Protection Coverage endorsement. The Insurance Act (the “Act”) requires that every automobile insurance policy include such coverage. The Act defines a “person insured under the contract” as including the policy holder’s “spouse” if “struck by an uninsured or unidentified automobile”. The Act also defines an “unidentified automobile” as meaning “an automobile with respect to which the identity of either the owner or driver cannot be ascertained“.
The Obligation on a Plaintiff to Take Reasonable Steps to Identify the Driver or Owner of the Vehicle
The court began by explaining:
“Given the definition of an “unidentified automobile,” the case law recognizes that for a plaintiff […] to succeed in a claim against her insurer, she must establish, on a balance of probabilities, that she could not ascertain by reasonable means the identity of the driver or owner of the vehicle that injured her. […]
The question is not whether it was possible for [the plaintiff] to identify the driver or record his license plate. Instead, it is whether her failure to do so was unreasonable in the circumstances, which necessarily takes into account her condition in the aftermath of the accident.”
The court found thatto conclude that the plaintiff behaved unreasonably by not prioritizing obtaining the driver’s identifying information or recording his license plate would entirely ignore the reality of her situation, as she was in shock and injured following the accident. The court found that it would have been unfair to conclude that the plaintiff behaved unreasonably in failing to take steps to safeguard her legal rights as she did not have a real opportunity to take such steps because of her physical and emotional condition after being struck and injured, and the driver’s decision to flee the scene within minutes of the accident. The court concluded by stating:
“In the end, acceding [the insurer’s] position on this motion would serve to cast the burden on a plaintiff seeking redress for injuries caused by an “unidentified automobile” far too high. If a plaintiff is injured by a motor vehicle, and because of her injury is not in a position to collect information about the driver of that vehicle or record his license plate before that driver takes flight, they are the very sort of claimant the law should protect. To close the door on such a plaintiff’s claim would, in practical terms, have the somewhat perverse effect of only ever affording coverage to those injured by “hit and run” drivers who have the misfortune of being rendered unconscious. That would be a rather absurd result. It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.”
As a result, the court rejected the insurer’s motion for summary judgment.
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