January 8, 2013 by Canadian Underwriter
An Ontario court recently ruled that an auto policy holder who was injured after tripping over a curb after he parked his car at home is not entitled to benefits under the province’s Statutory Accident Benefits Schedule.
Last Friday, Judge James McNamara of the Ontario Superior Court issued an order in a case in which The Dominion of Canada General Insurance Company sought a determination of whether an injury involving its client, Maurice Prest, falls within the definition of an “accident.”
According to court records, last April, Prest parked his vehicle in his parking spot at his home in order to wash it.
“He exited the vehicle and walked to the end of his car,” according to the background information provided in the court decision. “He then tripped over a concrete curb that … ‘sticks out’ from the wall of the parking garage … He states his right hand was touching the car when he tripped.”
In his decision, Judge McNamara ruled that while there is no doubt that Prest suffered impairment, the incident did not arise out of the use or operation of an automobile.
“Here the only role played by the motor vehicle was that the respondent drove it to the general location of where the incident occurred,” McNamara ruled. “The use of the car had ended without injury being suffered. Mr. Prest had left the car and then was injured by a new intervening act, namely when he tripped over the curb.”
Daniel Strigberger, a Kitchener, Ont.-based lawyer for Miller Thomson whose specialties include insurance litigation and personal injury, commented on the case in recent a blog post. Strigberger wrote that issues of this nature normally take longer to resolve, in some cases involving mediation and/or arbitration from the Financial Services Commission of Ontario (FSCO).
“Kudos to Dominion for getting an answer to this issue so fast,” Strigberger wrote, noting that the insurance carrier was “pro-active” in this case. “I suspect we will be seeing more insurers take this approach.”
In his ruling, Judge McNamara noted that the parking of the car in his usual spot “did not create any special risk beyond the risk faced by Mr. Prest every time he parked his car in his parking spot.”
He added that the vehicle was neither used nor operated at the time of the incident.
“A parking spot at one’s residence is typically where a car is put when there is no intent to use it,” Judge McNamara wrote. “If that curb is in a bad location or is otherwise dangerous, that is an occupier’s liability issue.”