Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a lawsuit seeking insurance coverage for vehicle theft.
In the recent case (Winterbottom v. ICBC) the Plaintiff owned a Ford F150 which he reported stolen. It was located a few days later in a remote location and was destroyed by fire.
ICBC denied coverage to the Plaintiff and he sued. In dismissing the lawsuit the Court noted that cell phone records placed the Plaintiff in the vicinity where the truck was ultimately recovered. Mr. Justice Blok provided the following reasons highlighting the utility of these records in dismissing the claim:
[113] Cell phone calls involving Mr. Winterbottom’s phone were the central focus of the case. At the risk of repetition, I summarize these as follows:
a) Six calls (three incoming, three outgoing) made between 6:08 pm and 7:21 pm, all of which utilized a cell phone tower located at Ross Road, west of Abbotsford. This suggests that Mr. Winterbottom’s phone was located south of the Fraser River, and not at his residence, which is where he said he was located at the time;
b) Two incoming calls, both from Mr. Waardenburg’s phone, made at 9:32 pm and 9:48 pm, which utilized a north-side Sumas Mountain cell phone tower that serviced the very area where the burned-out Truck was found;
c) An outgoing call to “Todd” at 9:49 pm, which involved a hand-off from the north-side Sumas Mountain tower to a tower located near the Mission Bridge, indicating a movement of the cell phone from east to west. This would be consistent, for example, with the movement of the phone along Lougheed Highway on the north side of the Fraser River;
d) Nine calls made between 10:01 pm on October 21 and 12:25 am on October 22, which utilized a cell tower site west of Mission, a location consistent with Mr. Winterbottom being located either at the Mission Springs pub or at his home;
e) One call to Mr. Nygaard-Peterson made at 12:25 am on October 22 that involved a hand-off from the west Mission cell phone tower to an Abbotsford-area cell phone tower, indicating southbound movement of the phone, plus a second call at 12:46 am that utilized the second tower only. These calls suggest Mr. Winterbottom was not located at his home or at the pub; and
f) Three calls made in the morning of October 22, beginning at 8:39 am. The first call involved a hand-off between two Abbotsford-area cell towers, indicating either movement of the phone or a call made in an overlap area. The second call utilized the Ross Road cell tower west of Abbotsford. A third call utilized the Ross Road tower and then handed the call off to a cell tower near Sumas Mountain, thus indicating a west to east movement of the cell phone. In all cases, the calls are not consistent with Mr. Winterbottom being located at his home.
[114] Neither Mr. Winterbottom nor Mr. Nygaard-Peterson had any explanation why they would have been phoning one another during the time they had said both of them were located at the Mission Spring pub, although Mr. Nygaard-Peterson speculated that he might have lost his phone or stepped outside. Mr. Waardenburg had no recollection of the calls and had no idea why he would have been in phone contact with Mr. Winterbottom so often during the relevant time frame. Both Mr. Winterbottom and Mr. Nygaard-Peterson denied being anywhere other than the Mission Springs pub or the Winterbottom home that night.
[115] I conclude that the cell phone and cell tower evidence given by Mr. Funk is reasonably reliable and accurate. His evidence was not undermined in cross-examination. The plaintiff’s assertion that all cell towers utilized by Mr. Winterbottom’s cell phone were within their standard 35 km range in relation to the pub or the Winterbottom residence ignores Mr. Funk’s evidence that the 35 km figure is merely the licenced range and does not reflect the actual range or coverage. Mr. Funk’s extensive field testing of actual coverages satisfies me that his evidence can be reasonably relied upon to determine general areas where a cell phone was located or where a cell phone was not located. While there may be room for occasional aberrations due to topology or physical barriers, etc., for the large number of calls involved in this case to be inaccurate would mean that there would have to be aberrations in almost every instance. I am satisfied from Mr. Funk’s evidence that this is unlikely in the extreme.
[116] I agree with the observation of plaintiff’s counsel that the plaintiff appeared to give his evidence in a forthright manner. So did his witnesses, although their evidence was generally to the effect that they were too drunk to remember much. There were, however, problems with their evidence. For example, there was no consistency between the plaintiff and his witnesses about how he got home from the pub. I agree that those particular inconsistencies might be explained by extreme drunkenness, but the cell phone calls are not so easily explained away. There is no explanation why the plaintiff and Mr. Nygaard-Peterson were phoning one another when, according to their evidence, they were both at the pub or, later, at the Winterbottom residence. Mr. Winterbottom agreed he woke up at 10 am the next morning, but he could not explain how that testimony reconciled with the five cell phone calls made from his phone between 8:39 am and 9:43 am that morning other than to say he did not remember them. Critically, his testimony about where he was located contradicted with the evidence of his cell phone location at various points that night and the next morning. None of this evidence adds up.
[117] The cell phone evidence is reliable and cogent, and it persuades me that Mr. Winterbottom was not where he said he was that night. It also indicates that at one point in the evening Mr. Winterbottom’s cell phone utilized a cell tower that serviced the same rural area where the burned-out Truck was found. Perhaps most importantly, the cell phone and cell tower evidence persuades me that Mr. Winterbottom’s evidence cannot be relied upon.
[118] In a case such as this, the burden is first on the insured to show a loss falling within the scope of the insurance coverage, which here is theft. The only evidence of theft comes from Mr. Winterbottom. I conclude that there are so many difficulties with the evidence of Mr. Winterbottom, centred on the discrepancies between his testimony about where he was compared to the cell phone location evidence, that I cannot rely on his evidence to prove that a theft occurred.
