You unsuccessfully jump into the back of a hatchback to avoid a tragic injury. Do you “occupy” the car?

A man trying — and failing — to clamber into his employer’s car to avoid another vehicle that was backing up into him was in fact the “occupant” of the car into which he attempted to jump, the Court of Appeal of Newfoundland and Labrador has ruled.

As a result of the ruling, the insurer of the employer’s vehicle, Intact Insurance, lost its priority dispute with Liberty Mutual Insurance over which insurer was responsible for paying accident benefits to the man. Both of the man’s legs were amputated above the knees after they were pinned between the two vehicles.

The appeal court observed that an “occupant” of a car under the province’s Auto Insurance Act includes someone “driving, being carried in or upon, or entering, or getting on to, or alighting from an automobile.” A person’s intention to enter the vehicle should be taken into consideration, the appellate court found.

“An attempt to enter a vehicle, even if unsuccessful, would satisfy the requirements of the language [that defines ‘occupancy],” Court of Appeal of Newfoundland and Labrador Justice Gale Welsh ruled for a unanimous, three-judge panel. “What is required is that the individual has commenced taking the series of actions necessary in order to complete entry.”

Initially, the Supreme Court of Newfoundland and Labrador ruled that the man did not “occupy” the car because he was not altogether successful when he tried to scramble into it. That meant Liberty Mutual, the insurer of the car that backed into the man, was the insurer of the first instance. Liberty Mutual successfully appealed that finding to the province’s court of appeal.

The case arose out of an incident that happened in April 2017, when Mervin Bridle was standing behind his employer’s vehicle, a 2008 Chevrolet HHR. Bridle was putting some equipment into its rear when he heard the beep-beep sound of another vehicle in reverse.  He turned just in time to see a Chevrolet Silverado reversing in his direction.

“In a desperate attempt to avoid the impact, [Bridle] attempted to clamber into the rear of the HRR,” the lower court found. “He was unsuccessful with tragic consequences.  Mr. Bridle was struck by the Silverado resulting in the amputation of both of his legs above the knee.”

The HRR carried Section B no-fault insurance insurance benefits with Intact Insurance. The Silverado carried Section B no-fault insurance benefits with Liberty Mutual Insurance. At issue was which carrier was the primary insurer.

The answer depended on whether Bridle was an “occupant” of the HRR at the time of the collision. If he was an occupant of the vehicle, Intact was the primary insurer. If he was a non-occupant, or a pedestrian, in other words, the Liberty policy for the Chevrolet Silverado should respond.

Ultimately, the appeal court overturned the lower court ruling. In assessing whether Bridle was an “occupant” of the Chevrolet HHR, the lower court judge focused too narrowly on whether Bridle’s body was entirely inside the car, the appeal court found.

“Mr. Bridle was injured while taking steps to enter the vehicle,” Welsh ruled. “His action was sufficient to satisfy the meaning of ‘occupant’ since he was a person injured while entering the vehicle.”