Tag: Felix v. ICBC

Passengers Operating Vehicles are "Users" Covered By ICBC Insurance Scheme

Written by admin on September 23, 2015. Posted in Uncategorized.

Important reasons for judgement were released today by the BC Court of Appeal addressing the scope of ICBC insurance coverage when a collision is caused by a passenger intervening in the use and operation of a vehicle.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally. The matter proceeded to trial and damages of over $800,000 were assessed. The Defendant motorist was insured with ICBC at the time. ICBC refused to pay arguing they had no responsibility to cover the damages.
The trial judge sided with ICBC and found no coverage existed in these circumstances. The BC Court of Appeal overturned this judgement finding the trial judge erred. In finding ICBC liable to cover the damages the Court provided the following reasons:

[46] The word “use” is to be considered in the context of the legislative scheme to provide “access to compensation for those who suffer losses” as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above. The word has been given a broad meaning in other judicial authorities. Considering all of these factors, as noted in Rizzo Shoes, I can only conclude that the word “use” in s. 63(b) includes use by a passenger in a motor vehicle when it is used as a motor vehicle.

ii) In the context of the facts of this case, is there some nexus or causal relationship between Ms. Felix’s injuries and the use of her vehicle by Mr. Hearne?

[47] The Court in Vytlingam addressed the issues of causation at para. 25, and said:

For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.

[48] I would adopt the analysis and rephrase it in this context, as, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made.”

[49] In Amos, the Court said, at para. 26, “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.” See also Westmount (City) v. Rossy, 2012 SCC 30 at para. 42.

[50] While a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix’s injuries. It matters not for these purposes that he did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was “using” the vehicle. 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. I would not disagree with the trial judge on this point.

"Disturbing" Court Finding Limits ICBC Liability Following Passenger Grabbing Steering Wheel

Written by admin on February 3, 2014. Posted in Uncategorized.

Update September 23, 2015 – The below decision was overturned in reasons released today by the BC Court of Appeal.
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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, dealing with the responsibility of ICBC to pay damages following a collision caused by a passenger grabbing a steering wheel.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally. The matter proceeded to trial and damages of over $800,000 were assessed. The Defendant motorist was insured with ICBC at the time. ICBC refused to pay arguing they had no responsibility to cover the damages. In a “disturbing” finding Mr. Justice Saunders agreed and provided the following reasons letting ICBC off the hook:
[48] First – though it makes no difference to the outcome – I reject the plaintiff’s
contention that the estate of Mr. Hearne can obtain indemnity by virtue of
Mr. Hearne having been an insured under his own owner’s certificate. Section 63(a)
of the Revised Regulations does use the indefinite article, defining an insured as a
person named in an owner’s certificate. But it does not refer to any owner’s
certificate. Reading Part 6 of the Revised Regulation as a whole, the scheme of
insurance created thereunder clearly envisages the owner’s certificate referenced in
s. 63 to be the certificate on the at-fault vehicle, not any certificate on which an atfault
driver may be named. I agree with the defendant’s submission that the plaintiff’s
interpretation of s. 63(a) would lead to an absurdity: having one’s own owner’s
certificate would entitle one to the status of an insured in respect of any motor
vehicle, without that vehicle’s owner’s consent, and without having paid any extra
premium. I further agree that indemnity to an insured operating a motor vehicle not
described in an owner’s certificate issued to the insured is extended by operation of
s.65 of the Revised Regulation. To provide indemnity to such an insured through the
plaintiff’s interpretation would render s. 65 redundant.
[49] Second, I would not find – and it is not contended by the plaintiff – that
Mr. Hearne’s grabbing of the steering wheel constituted operation of the vehicle, with
the meaning of s. 64 of the Revised Regulation. I cannot find on the evidence that
Mr. Hearne probably intended to take control or intended to aim the vehicle in any
particular direction. Ms. Felix’s impression is that in the first two incidents of him
grabbing the wheel, Mr. Hearne was simply intending to scare her. Although the final
incident was different in that the movement of the vehicle was affected, there is not
sufficient evidence for me to infer that Mr. Hearne meant to alter its course. His
action interfered with the operation of the vehicle by Ms. Felix, but was not operation
in itself.
[58] While the Revised Regulation does, in effect, create a policy of liability
insurance, and while, as I have found, it is appropriate to apply to the Revised
Regulation the interpretive rule that coverage is to be construed broadly, the rules of
interpretation of statutory instruments must be paramount. Statutes are to be
construed liberally, but the construction and interpretation must be consistent with
the evident legislative intent. It appears to have been the intention of the governor in
council not to extend indemnity to vehicle passengers except those who may be
found to have been operating a vehicle with consent, or, in the limited case of injury
to a person who was not an occupant, to have been operating a part of the vehicle
within the meaning of s. 66.
[59] For that reason I am led to the conclusion that Mr. Hearne, as a passenger in
the plaintiff’s vehicle, was not engaged in use of the vehicle within the meaning of
s. 64. The defendant is under no obligation to indemnify the Hearne estate, and the
plaintiff’s claim must therefore fail.
[60] The consequence of this interpretation as regards designated drivers is one
which some may find disturbing. If that consequence was unintended, that is a
matter for consideration by the government.