August 27, 2020 by Greg Meckbach
An Ontario court has ruled against an insurer’s attempt to dismiss a lawsuit in which an argument was made that the woman on the receiving end of a hit-and-run could have reasonably done more to get the driver’s information.
In a recent Ontario Superior Court of Justice ruling, Justice James Stribopoulos declined to summarily dismiss a lawsuit filed by Elizabeth Lamb against Co-operators General Insurance Co. Whether The Co-operators has to pay out on the claim still has to be determined by trial. What Lamb v. Co-operators General Insurance Co. does mean is that that Stribopoulos has found there is a genuine issue regarding trial. One issue is whether it was reasonable for Lamb to have failed to get the allegedly at-fault driver’s information.
Lamb might be able to make a claim under the family protection endorsement of her husband’s auto policy. Ontario’s O.P.C.F. 44R Family Protection Coverage endorsement gives a client and their spouse coverage if they are struck by an uninsured or unidentified automobile. In essence — in the case of a hit-and-run — it lets the client sue a John Doe defendant and then recover from the client’s own accident benefits insurer what a judge would have awarded in a tort case.
Lamb’s situation, The Co-operators argued, was not a case where either the owner or driver of the vehicle that struck her “could not have been ascertained through reasonable means.”
The vehicle did initially stop and the driver got out, but in his Aug. 19 ruling, Justice Stribopoulos said it was not reasonable under the circumstances to hold Lamb accountable to get the other driver’s information.
On Aug. 14, 2015. Lamb was riding her scooter — which does not have a seat — on her way to meet her husband and a friend for her husband’s birthday at a pub in Brampton. She stopped at an intersecting traffic throughway that runs north and south through the plaza parking lot. She could see a mini-van double-parked in front of cars in designated parking spots across from her.
With her way appearing clear, she proceeded forward on her scooter. But a car emerged from behind the double-parked vehicle and hit her right arm, sending her flying to the pavement. A witness said Lamb flew four to five feet.
“Unbeknownst to her at the time, a bone in her knee was fractured. Immediately after the accident, she was in considerable pain and very likely in shock,” wrote Justice Stribopoulos.
Witnesses said the vehicle stopped, the driver got out and examined his own vehicle for damage. Meanwhile, Lamb’s husband and the friend helped her into the pub.
She conceded on cross-examination that while the driver was outside and surveying the damage to his vehicle, she would have had the opportunity to ask for his contact information. “Pressed about her failure to do so, she testified: ‘I was in shock. I just got hit by a car,’ ‘everything was so fast,’ and ‘I was worried about what happened to me,’” wrote Justice Stribopoulos.
“The question is not whether it was possible for Ms. Lamb 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,” wrote Justice Stribopoulos.
When the Co-operators initially denied Lamb’s claim, it took the position that she was 100% liable for any damages or injuries.
In arguing the case should be dismissed, The Co-operators suggested that by moving Lamb inside the pub from where she was lying on the roadway, her husband and the friend “implicitly communicated to the driver that he was free to leave,” Justice Stribopoulos wrote.
Justice Stribopoulos disagreed, suggesting the unidentified driver committed a crime by leaving the scene.
“A driver has a legal duty to stop his vehicle after an accident, provide his name and address and offer assistance to injured persons.”
Feature image via iStock.com/martin-dm