Canadian Underwriter

Hot coffee scalds your client in a drive-through. Is that an auto “accident”?

February 23, 2018   by Greg Meckbach

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Ontario auto insurance policies will have to cover a much wider scope of risk if the Supreme Court of Canada does not overturn a recent court ruling against Aviva Canada, Aviva’s lawyer argues.

In Dittmann v. Aviva Insurance Company of Canada, Erin Dittmann suffered serious burns after dropping coffee on herself after buying the hot drink at a McDonald’s drive-through early in the morning of July 7, 2014. Her car was insured by Aviva Canada, which does not dispute the facts. However, Aviva contends that Dittmann’s injuries did not result from an “accident” as defined by Ontario law in the Statutory Accident Benefits Schedule.

In a decision released in October 2016, Ontario Superior Court Justice Robbie Gordon ruled that Dittmann’s injuries were in fact an “accident” for the purpose of first-party accident benefits. That ruling was upheld by the Ontario Court of Appeal in July 2017.

The Supreme Court of Canada announced Feb. 9, 2018 that a panel of three judges has been assigned to decide whether or not Canada’s top court will hear an appeal from Aviva.

The SABS regulation in Ontario defines an accident as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

The Ontario Superior Court of Justice considered whether the use of Dittmann’s vehicle was a cause of her injuries. “And, if so, whether there was an intervening act that caused the injuries that cannot be said to be part of the ‘ordinary course of things,’” Justice Gordon wrote in 2016.

There was no intervening act “as would be the case with such intervening acts as a drive-through attendant deliberately throwing hot coffee on the claimant, or the claimant falling ill due to impurities in the coffee that was served,” Justice Gordon wrote.

However, the definition of accident in Ontario “is explicit in its requirement that the use or operation of an automobile directly causes an impairment,” wrote Aviva’s lawyer, Kadey Schultz, a partner at Schultz Frost, in her factum to the Supreme Court of Canada.

Before the SABS was changed in 1996, an impairment could have been caused “indirectly” by use or operations of an automobile, Schultz noted in the factum. Changes to SABS “were drafted with cost control in mind,” Schultz wrote.

The Court of Appeal for Ontario ruling in favour of Dittmann “significantly widens the scope of risk automobile insurers are expected to indemnify against,” Schultz wrote. “High auto insurance premiums continue to plague Ontario consumers, who are mandated by law to purchase automobile insurance.”

Dittman’s lawyer, Michael Gauthier of Orendorff & Associates, argued in his factum that Dittmann’s injury was directly caused by the ordinary use or operation of a vehicle. Among other things, he noted that Dittmann would not have been able to access the McDonald’s drive-through in the first place had it not been for the fact that she was in her vehicle at the time.

“The risk of a coffee spilling upon a driver as she retrieves it from a drive-through window, and attempts to place it in the cup holder of her vehicle, is in fact a normal incident of the risk created by the use or operation of the vehicle,” Gauthier wrote.

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1 Comment » for Hot coffee scalds your client in a drive-through. Is that an auto “accident”?
  1. Frank Cain says:

    If she had parked her car and walked in to order coffee at the counter, do we say that the damage woul not have happend if she had not driven there? Remember – use or operation! The drive through was simply a convenience to accomplish the same thing. You don’t have to be in the vehicle to be covered as the wording includes “or falling from the vehicle” meaning you were separated from it. You were separated from it after you parked in the above example. It would appear that the car is the proximate cause of injury or it would not have entered the Judge’s decision.

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