Ontario court weighs in on vehicle theft

Ontario’s Superior Court recently waived a claim against Pilot Insurance Company in a case that tackled the thorny question of how to prove a vehicle had been “stolen.”
In Comer v. Mochulla (Mochulla Auto Service), Baysville, Ontario resident Cary Comer in January 2006 filed a proof of loss with Pilot, claiming that his truck was stolen and damaged on the night of Oct. 1, 2005.
The insurer denied the truck had been stolen that night and refused to pay the claim.
The court decision adhered to an agreed statement of facts before it, noting that the “theft” of the vehicle was the only matter in dispute. The court observed the onus lay on Comer to prove his loss on a balance of probabilities.
Comer said he brought his vehicle, which was attached to a boat and trailer (not covered by the policy and not registered to Comer), to the Pavillion Hotel & Bar located on Highway 117 in Baysville. Comer said he has a few beers and, shortly after midnight, caught a lift home from someone he met at the bar.
He reported the vehicle stolen when police contacted him at his residence at 12:27 p.m. later on Oct. 1. Earlier that morning, at 4:38 a.m., police found the abandoned vehicle, boat and trailer on the side of the road with the vehicle’s lights flashing. The police indicated the vehicle had been in an accident.
The truck window was open and there was no sign of forced entry, police noted.
At the time, Comer told police he was the only one who had a set of keys, but that night, he didn’t know where the keys were. He thought he had left them in his jacket at a cottage.
Having listed all of the facts, the court seized on the evidence that Comer said he had picked up his truck in Baysville. “It is not logical that Cary Comer would head into Baysville to retrieve his truck without keys,” the court noted. “If he [Comer] is accurate in testifying that he went into town to get his truck, he cannot be accurate about not having keys to drive it and not also seeking to ascertain the whereabouts of his keys when he discovered his truck was stolen
“The keys would have been present or gone when Cary Comer set about to retrieve his truck, not assumed to be in a sweater hanging in the cottage.”