August 22, 2019 by Greg Meckbach
Should a motorist be liable if a front-seat passenger deliberately grabbed the wheel and took control, causing an accident?
Insurers debate this, but judges say a client in this situation should not be liable.
In McKay v. Park, released Monday, the Court of Appeal for Ontario upheld part of a 2018 ruling against TD Insurance and in favour of State Farm, which insured Sarah Park.
In August, 2013, Park’s vehicle collided with another vehicle on Highway 407. Kristen McKay was a passenger in the other vehicle.
Riding in the front passenger seat in Park’s vehicle was Giancarlo Hnatiuk, who grabbed the steering wheel, causing the car to lose control.
Hnatiuk fled the scene and later pleaded guilty to dangerous driving causing bodily harm and failing to remain at the scene of the accident.
McKay, who was injured, filed a lawsuit against Park and Hnatiuk.
McKay’s insurer was TD, whose policy included coverage in case McKay was suing a defendant who is uninsured or under-insured.
State Farm argued Park should not be liable and that it should not be covering Hnatiuk. A victory for State Farm essentially means TD has to pay McKay for her injuries.
In 2018, Justice Heather McArthur of the Ontario Superior Court of Justice ruled in favour of Park and State Farm, deciding that the case should be dismissed by summary judgement.
TD was partly successful on appeal.
Where TD was not successful was in arguing that Park should be liable. This, Justice McArthur ruled, is because Hnatiuk took control of the vehicle without Park’s consent.
“The fact that Ms. Park owned the car, had been driving it immediately before Mr. Hnatiuk grabbed the wheel and had access to the brake and gas pedal, is of no moment,” wrote Justice McArthur.
The three appeal court judges unanimously rejected TD’s argument that Park remains vicariously liable because she was in possession of the vehicle.
Quoting the Highway Traffic Act, the Court of Appeal noted that in Ontario, a vehicle owner is vicariously liable unless the vehicle is taken from them without the owner’s consent.
The appeal court did set aside Justice McArthur’s finding that Hnatiuk is not covered by Park’s policy. The appeal court suggested that Justice McArthur did not include enough information on how Ontario insurance law led her to come to the conclusion that she did. As a result, the appeal court ruled there was not enough information in the decision to enable an appeal court to review it.
That does not necessarily mean State Farm now has to cover Hnatiuk. It just means the issue is not yet settled.
State Farm and TD can now bring “further proceedings as appropriate to have that issue determined,” the Court of Appeal wrote of the question of whether State Farm, as Park’s insurer, has to cover Hnatiuk.
State Farm cited Section 139 (1) of the province’s Insurance Act, which stipulated that – subject to Section 240 of the Insurance Act – “every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage … (a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and (b) resulting from bodily injury to or the death of any person and damage to property.”
TD also argued that it was not in Park’s financial interest for the court to find that Hnatiuk was uninsured. This, TD said earlier, was because any monies or property jointly owned by Park and Hnatiuk could be taken in enforcing a judgement against Hnatiuk.
But Justice McArthur said in 2018 that TD’s position was “highly speculative” because there was no evidence that Hnatiuk and Park intermingled their funds in any way.
Removing Park as a defendant would “result in a more focused and efficient action” said McArthur.
The courts also rejected TD’s argument that Park was contributorily negligent in allowing Hnatiuk to ride in the vehicle. Justice McArthur said it was not foreseeable that Hnatiuk would suddenly grab the steering wheel and cause a collision, endangering both himself, Park and other users of the road.
Editor’s note: An earlier version of this story incorrectly stated TD was Park’s insurer. TD was actually McKay’s insurer. Canadian Underwriter regrets the error.