March 8, 2016 by Canadian Underwriter
A dispute between the Insurance Corporation of British Columbia and a woman seriously injured in a vehicle crash, arising from an intoxicated passenger grabbing the steering wheel, may reach the Supreme Court of Canada.
In September, 2015, the B.C. Court of Appeal ruled against ICBC, the crown corporation with a monopoly on basic auto coverage in the province. Marnetta Felix had been awarded damages of nearly $800,000, plus costs, after suing the estate of Kevin Hearne. She sought to have ICBC indemnify the estate of Hearne, as passenger of the vehicle she was driving who had grabbed her steering wheel. The resulting accident killed Hearne and seriously injured Felix.
Felix was initially unsuccessful. In a ruling released Feb. 3, 2014, Mr. Justice Anthony Saunders of the B.C. Supreme Court ruled in favour of ICBC. But in 2015, the province’s appeal court overruled Justice Saunders. On Nov. 17, 2015, ICBC filed for leave to appeal with the Supreme Court of Canada. In a bulletin released Friday, Canada’s highest court announced that as of Feb. 29, all materials on the leave application had been submitted.
Court records indicate that on July 8, 2006, Felix and Hearne were at a soccer game. Hearne became intoxicated. They left the game with Felix driving and Hearne in the front passenger seat. Hearne grabbed the steering wheel twice and let go, but after grabbing the steering wheel a third time he did not let go.
The B.C. Court of Appeal ruled that Justice Saunders “erred when he excluded Mr. Hearne as a ‘user’ and therefore not an insured under Section 63 of B.C. Regulation 447/83, which defines an insured as either the owner or “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.”
Saunders had noted that Section 66 of the regulation “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.” That section, he added, would be redundant of the regulation “were interpreted so that any passenger is deemed to be using the vehicle.”
But the appeal could ruled that “the word ‘use’ is to be considered in the context of the legislative scheme to provide ‘access to compensation for those who suffer losses’ as a result of a motor vehicle accident …”
The word use “has been given a broad meaning in other judicial authorities,” the appeal court added.