An appellate court’s ruling in an automobile fatality case is likely to have “repercussions for the auto insurance industry.”
British Columbia’s highest court has decided that passengers riding in a motor vehicle can qualify as engaging in “use” of the car, a distinction which could have “repercussions for the auto insurance industry.”
In Felix v. ICBC, Marnetta Felix served as the designated driver for her “argumentative” boyfriend Kevin Hearne after a soccer tournament in July 2006. An inebriated Hearne grabbed the wheel of the car a couple of times as a joke, but on the third, he actually took control of the car and caused it to swerve off the highway and roll over, according to the Vancouver Sun.
He died as a result of the collision, and Felix sustained critical injuries.
Two years later, the single mother and former court reporter won $791,950 in damages and $71,292.63 in costs from Hearne’s estate. Felix then attempted to recover the award from the Insurance Corporation of British Columbia (ICBC), pursuant to the Insurance (Motor Vehicle Act).
The province’s Supreme Court, however, decided that Felix wasn’t eligible for third party liability because Hearne’s actions weren’t considered “use” in the Act’s language.
“This would appear to be a powerful disincentive to anyone acting as a designated driver, when there was any risk of a passenger acting irresponsible,” Justice Anthony Saunders admitted at the time.
Three justices at British Columbia’s Court of Appeals, struck that provision down, arguing that Hearne was using the vehicle when he took hold of its steering wheel.
“It matters not for these purposes that (Hearne) did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was ‘using’ the vehicle,” said Justice Mary Saunders. “As a result, Ms. Felix suffered injury. There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries … the trial judge erred when he excluded Mr. Hearne as a ‘user’ and therefore not an insured under s. 63(b).”
She compared Hearne’s behaviour to a passenger who opens the door on a cyclist, a negligent action that would be covered by third party liability.
In addition, Justice Elizabeth Bennett acknowledged that the provincial regulations were amended in 2001 to classify an insured party as “an individual who with consent . . . uses or operates the vehicle,” according to Thomson Reuters Canada. She contends that the addition of “uses” indicates that the British Columbia’s coverage is intended for non-drivers as well as drivers.
She also pointed out that ICBC celebrated the outcome in Neidermeyer v. Charlton, ìn which the defendant tried to evade liability in a collision by reasoning that his passengers had signed a waiver prior to the accident. The courts ruled against him.
“The court of appeal used that case as a way to speak lovingly and comprehensively about the B.C. automobile insurance program,” said Douglas MacAdams, lawyer for the plaintiff.
MacAdams celebrates the decision as a triumph for injured persons, and believes it will have implications not only for public insurance schemes operating in B.C., Saskatchewan, Manitoba, and Quebec, but also for the private auto insurance industry.
