Canadian Underwriter

Car surfing covered by auto insurance, court finds

September 27, 2018   by David Gambrill

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Auto insurance covers “car surfing,” in which a person rides on the top or rear of a moving vehicle, an Ontario court has found.

“Car surfing or attaching oneself to a vehicle, while reckless and dangerous, is not a more abnormal use of a vehicle than the other reckless and dangerous uses of a vehicle such as texting while driving,” Ontario Divisional Court Justice Paul Perell wrote in a decision released Tuesday.

The Ontario Divisional Court upheld the ruling of an accident benefits tribunal last year. An adjudicator at the Ontario Licence Appeal Tribunal found that Iris Charbonneau was involved in an “auto accident” on July 14, 2014, when she was seriously injured while car surfing.

Charbonneau was standing on the bumper of a moving 2013 Nissan Quest, holding onto the roof rack with one hand, while holding onto a friend’s shoulder with the other. Her friend was also standing on the bumper. A friend inside the vehicle was video recording the event. When the driver made a sharp turn, Charbonneau fell, hitting her head on the concrete.

At the tribunal level, Intact Insurance Company argued the incident was not an “auto accident,” and therefore there was no accident benefits coverage under the Intact policy issued to Charbonneau’s father. The adjudicator rejected Intact’s argument, and the insurer appealed the tribunal decision at the Ontario Divisional Court.

“In our opinion, while reckless and foolish, Ms. Charbonneau was using the vehicle for its normal purpose of transportation and there was an accident in which the adjudicator correctly determined there was Statutory Accident Benefits,” Perell wrote for the court.

Perell’s decision references the court’s two-part test for whether an activity fits within the definition of an “auto accident” for insurance purposes. One branch of that test is whether the activity is in keeping with the ordinary use or “purpose” of the vehicle.

“Intact submitted that the purpose test is designed to ensure that no fault benefits are confined or restricted to accidents or to motorists and others who are making an ordinary and well-known use of the vehicles,” Perell wrote. “In the immediate case, Intact’s submission is self-defeating because the adjudicator had material before her to suggest that car surfing is a commonplace enough activity that the legislature has thought fit to criminalize it as an offence under s. 178 of the Highway Traffic Act, which prohibits ‘attaching oneself to a vehicle.’”

Perell ruled that car surfing is a subset of other activities known as “hitching a ride.”

These activities would encompass such activities as riding on a bumper or side bar of a car or grabbing a moving vehicle while on in-line skates, a bicycle, a skateboard, a sled, or a toboggan.”

The court did not comment on whether these activities were also covered under an auto insurance policy.

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14 Comments » for Car surfing covered by auto insurance, court finds
  1. Frank Cain says:

    Check out Illegal Use under 7.2.2 of the Ontario Auto Policy (OAP 1) booklet – “Dangerous operation of motor vehicles”. If standing on a bumper of a moving vehicle and falling off and suffering injuries as a result is not dangerous operation of a motor vehicle, then here’s what I propose to do, a kind of life long dream.

    My wife’s car is smaller than mine so I’ll use hers as it’s closer to the ground. While it’s moving through our apartment driveways, I’m going to do a handstand on the roof of her car. As I say, it’s been a lifelong dream. And, as soon as I hear at least 5 people yelling at me,

    “Hey! That’s a dangerous thing to be doing”,

    l’ll tell my wife to stop the car and I’ll get down. At that point, I will have re-affirmed my faith in the OAP 1 booklet.

    Until then, there’s that small doubt in my mind that at some printing press somewhere there was a plethora of unused printing paper and someone had the bright idea to see how they could use it. “Hey Bob. We have orders to use up this 5000 foot roll. What say we use it up on that booklet thing, you know, the OZD 6 or whatever it was called. Agree? Great! OK. OAP 1, whatever. Roll the presses”.

    With ex-cathedra judgements as in the above article, it could be that the OAP 1 booklet isn’t worth the paper it’s printed on. Shame!

  2. Joe says:

    Section 7 does not apply to accident benefits, if your read the oap1 not even violation of section 8 statutory comditions affects accident benefits. The dispute in this case is whether its an accident or not that’s all that will affect his claim.

    • Frank Cain says:

      I don’t agree Joe. You misread my commentary which was solely on the dismissal of car surfing as being dangerous. As for “accident”, see if you can find a definition for it in the booklet.

  3. Michelle Stewart says:

    I think car surfing or riding on the roof of a vehicle, etc. is one of most stupidest things a person can do. That girl should not have been allowed to claim for injuries. It’s her own fault. It is an idiotic thing to do. The driver should have been charged with dangerous driving and undo care and attention, and whatever other charges he could be charged with. Even the passengers should have been charged with something.
    Make all those things illegal to do. Just like texting, driving drunk, and being stoned, are illegal. Doing dumb things like that and getting compensated for them because a person gets hurt is why our premiums are way up. Change the laws! Stop it!

  4. Michelle Stewart says:

    Change the laws. All those kinds of activities should be illegal. The driver and passengers should have been charged. It’s her fault she got hurt. She should have gotten no compensation. I don’t feel a bit sorry for her.

  5. Wilfred Saulnier says:

    you can do anything you like in todays society just be young and have power or money

  6. Wilfred Saulnier says:

    if you have had high premiums and no claims , and your sure to still pay high prices especially if you have been behaving yourself and haven’t been in ANY KIND OF TROUBLE you have to still pay high up moving premiums annually wow what a farce, time to be able to pay by the accident record and claim record you have

  7. Mario Chin says:

    So; this is why insurance rate will never come down, especially in Ontario.
    Why do we have rules about how to use or drive a car safely?
    I guess its true, we really can NO longer teach kids/people the lesson of being responsible for your own actions.

  8. Scott says:

    We really need to get back to a system that recognizes the actions of “the common man” and weighs that vs. the actions of the appellant. Abnormal actions and incidents stemming remotely from the auto but primarily by the negligence of the injured party should not have damages borne by society. Car surfing enthusiasts claims should not be validated by the fact that someone equally stupid had car surfed before. Seriously? That is the litmus test now?

    With that said are we really shocked anymore at the stupid decisions that are made by our judiciary? The chauffeur who twisted his ankle stepping off a curb, was an AB claim as he had been in a vehicle a short time before. The hunter who used a vehicle to rest his arm while aiming his shot. The attempted murderer who used his vehicle to deliver bricks to an overpass which he then dropped onto the expressway to injure people…(This one may have been overturned but at a minimum the attempt was there?) the list goes on…

  9. Josie says:

    I think we need to realize that these decisions are purely based on who has the money, not who is really at fault. It’s my opinion that judges spend a huge amount of time in making a decision reading through legal doctrines and finding a way to re-word them to get at the money, regardless of stupidity or wrongdoing. Since when do intentional acts get covered? Why are we covering illegal acts, regardless of Section B? The Statutory conditions apply to the entire policy:

    (2)” The insured must not permit or allow the use of the automobile for
    (c) any illicit or prohibited trade or transportation”

    This is also under the exclusions for Section B whereby there is no coverage for bodily injury “sustained” by anybody under the circumstances above.
    I am pretty sure this counts as illicit transportation.
    Why is it the courts don’t apply the wording properly? I think it’s because the insurance company has the money and the victim, no matter how stupid they are, do not.

  10. Robert says:

    This judge should be removed from the bench immediately. And This Woman’s benefits should be revoked immediately. That’s not part of driving or riding in a car that’s an idiotic thing to say. Unfortunately you can’t legislate against stupidity. Either her stupidity or the judges stupidity.

  11. Rich says:

    Guess there is no IQ requirement to be a court Justice. This is the equivalent of bad parenting and rewarding bad behavior. I mean and common idiot can see this should not be covered but a court Justice can’t. Wait, was his name Brett Kavanaugh??

  12. Victor B Tuba says:

    In Ontario OHIP covers all stupid things,based on that car insurance should cover stupid things on,with cars etc.
    However the laws should be changed not to cover these stupid things
    Why should premium payers and tax payers pay for it.

    If you do the crime you should do the time
    Convert that saying to stupidity and money. Then they should/will think twice
    When it hits their bank account or paycheck.

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