ICBC must indemnify estate of passenger sued by injured driver

The Insurance Corporation of British Columbia must indemnify the estate of a man who was killed, as a passenger in a vehicle accident, after grabbing the steering wheel, the province’s appeal court has ruled.

Court records indicate that Marnetta Felix was at a soccer game July 8, 2006 with her boyfriend, Kevin Hearne, who became intoxicated.

They left the game with Felix driving and Hearne in the front passenger seat. Three times en route, Hearne grabbed the steering wheel. The first two times he let go but the third time he grabbed the steering wheel, he did not let go, court records indicate. The vehicle crashed, Hearne was killed and Felix was seriously injured.

Felix sued Hearn’s estate and in 2011 she was awarded damages of $791,950 plus costs of $71,292.63. In 2012, she sought to recover from ICBC the total amount of $863,242.63, plus post-judgment interest.

The B.C. Supreme Court originally ruled in favour of ICBC, the provincial crown corporation from whom all vehicle owners in B.C. must purchase basic coverage. In a decision released Feb. 3, 2014, Mr. Justice Anthony Saunders ruled that ICBC was not under an obligation to indemnify the Hearne estate.

That ruling was reversed on appeal, in a decision released Sept. 23, 2015.

Both ICBC and Felix agreed that B.C.’s Insurance (Motor Vehicle) Act – which was in force at the time of the accident – and Regulation 447/83, applied.

In Part 6, Section 63 (a) of Regulation 447/83, an “insured” means “a person named as an owner in an owner’s certificate” and in Section 63 (b), an insured is “an individual who, with the consent of the owner or while a member of the owner’s household, uses or operates the vehicle described in the owner’s certificate.”

Reading Part 6 of the regulation as a whole, “the scheme of insurance created thereunder clearly envisages the owner’s certificate referenced in s. 63 to be the certificate on the at-fault vehicle, not any certificate on which an at-fault driver may be named,” Justice Saunders wrote in 2014.

Justice Saunders added that Section 66 of the regulation – which, he noted, “extends indemnity explicitly to a passenger who causes injury or death to a person not occupying the vehicle, by operating any part of the vehicle while the vehicle is being operated by an insured,” he wrote. He added that if section 64 of the regulation “were interpreted so that any passenger is deemed to be using the vehicle,” then section 66 would be redundant.

Justice Saunders agreed with ICBC’s argument that Felix’s interpretation of the regulation “would lead to an absurdity: having one’s own owner’s certificate would entitle one to the status of an insured in respect of any motor vehicle, without that vehicle’s owner’s consent, and without having paid any extra premium.”

However, the Court of Appeal of B.C. found that Justice Saunders erred when he excluded Hearne as a user under Section 63 (b).

Citing case history, “the concept of ‘use’ when it refers to use of a motor vehicle is broadly defined,” Madam Justice Elizabeth Bennett wrote on behalf of the appeal court. “In my view, being a passenger in a motor vehicle is an ‘ordinary and well-known’ use of a vehicle.”

The other two judges hearing Felix’s appeal – Madam Justice Sunni Stromberg-Stein and Madam Justice Mary Saunders – agreed.

The appeal court noted that Section 66 of the regulation was introduced before an amendment, adding “use” to the definition of an insured, was introduced.

“Section 66 would not grant indemnity for a situation such as this one, nor does it operate to limit the definition of ‘use,’” the appeal court ruled. “The addition of ‘use’ is clearly to add broader coverage in order to address a situation not covered by s. 66, including coverage for a person who is an occupant of the vehicle.”