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A driver is convicted of assault after a collision. Is the vehicle’s owner vicariously liable for the crash?

February 13, 2019   by Greg Meckbach

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The registered owner of a pickup truck could be held liable for injuries to an accident victim even though the at-fault driver of the pickup truck was convicted of assault as a result of a collision, the Court of Appeal for Ontario ruled in a decision released Tuesday.

Trevor James Middleton was driving a Ford F-150 in September 2007 when it collided with a Honda. Shayne Berwick, one of the passengers in the Honda, suffered permanent brain damage, a fractured skull, a blood clot in the brain, 10 broken ribs and a punctured lung. Berwick sued both drivers and the alleged owners of both vehicles.

The driver of the Honda, Ruo Hang Liu, sued his own insurer, The Personal Insurance Company. This was in case the parties legally responsible were uninsured or underinsured.

In 2017, The Personal asked the Ontario Superior Court of Justice to rule that Linda-Sue Pearce owned the Ford F-150, meaning she could be sued for vicarious liability and her insurer, Wawanesa, would respond to the claim. Pearce is the mother of Middleton.

The Personal asked the court to dismiss the Honda driver’s lawsuit against The Personal.

In Liu v. The Personal Insurance Company, released in 2017, Justice Phillip Sutherland of the Ontario Superior Court of Justice ruled in favour of The Personal. Justice Sutherland found that Pearce was the true owner and therefore could be held vicariously liable for what the driver of the Ford did.

Meanwhile, in a separate case, the Ford F-150 driver, Middleton, was convicted of two counts of criminal negligence causing bodily harm and four counts of aggravated assault, arising from the collision.

Pearce was the registered owner of the Ford F-150 driven by Middleton. But she initially argued she was not in fact the true owner.

The Highway Traffic Act stipulates that the owner of a motor vehicle “is liable for loss or damage sustained by any persons by reason of negligence in the operation of the motor vehicle… on a highway.”

Pearce initially argued that the insurance on the truck was in her son’s name, that the premiums were deducted from her son’s account, and that her son was the primary driver.

Pearce loaned money to her son to buy the truck, which was put in Pearce’s name to secure the payment of the loan by her son.  But there is no written documentation of the loan, Judge Sutherland found, ultimately ruling that Pearce was the true owner.

After the 2017 ruling, Pearce went to court asking to withdraw an admission she made earlier. That admission was that if Justice Sutherland finds that Pearce owns the F-150, then her motor vehicle insurance with Wawanesa will be available to pay on the lawsuit.

In 2018, Judge Sutherland ruled that she cannot withdraw her admission.

Pearce’s argument this time was that because her son was convicted of aggravated assault, this means his actions were intentional and therefore she should not be held vicariously liable.

“If Middleton was not negligent, no vicarious liability attaches to Pearce,” Justice Sutherland wrote. But he added an aggravated assault conviction does not, in itself, indicate an intent to injure.

Justice Sutherland noted that Pearce did not initially argue that she lacked vicariously liability because Middleton’s actions constituted an intentional act to injure. Instead, Pearce made a general denial of negligence.

“These statements in her pleadings describe her strategic defence that the motor vehicle was Middleton’s and that he was driving properly, prudently and without negligence,” Judge Sutherland wrote in 2018. “The statement does not state that Middleton was driving with intent to injure.”

That ruling was upheld on appeal.

If Pearce were to succeed, she would not be vicariously liable, and her insurer, Wawanesa, would not be liable to pay the loss, the Court of Appeal for Ontario wrote in its ruling in Liu v. The Personal Insurance Company, released Feb . 12.

However, if that were the case, Justice Sutherland wrote, The Personal “would not be available to respond to the loss caused by an uninsured or underinsured driver, because the action has been dismissed against Personal as a result of the appellant’s admission before the motion judge. This amounts to prejudice to other injured parties who might wish to have resort to that policy.”