Automobile insurance - Coverage - Ownership, use or operation of motor vehicle - Negligent supervision of children
January 2009Kopas v. Western Assurance Co.
[2008] O.J. No. 4057
D. L. Corbett J
October 15, 2008
A five year old boy travelled with his family to spend a day at a "heritage festival". The boy's father and grandfather got out of the car and started unloading the car for the day. A train was passing just outside the parking area and the young boy went over to watch it by the chain link fence that separated the parking lot from the train tracks. Subsequently, the boy started back towards his father and grandfather. The boy's grandfather was keeping an eye on him while the father unloaded the trunk. Another car backed out of the parking space and ran over the five year old boy, killing him.
The family of the boy sued the driver of the vehicle for negligence. The driver crossclaimed against the father and grandfather alleging that they were negligent in their supervision of the boy. The claims were all settled. In the settlement, the parties allocated 70% responsibility to the driver of the vehicle and 30% to the father and grandfather. The father and grandfather then commenced an action against the motor vehicle insurer of the father's car ("Western Assurance") saying that Western Assurance should be responsible for the costs of defending the crossclaim brought against them and for indemnifying them for their 30% contribution. Western Assurance denied coverage on the basis that the accident did not involve the "use or ownership" of the vehicle.
The Court reviewed two recent decisions from the Supreme Court of Canada on the proper interpretation of the "use and ownership" coverage grant under automobile insurance policies: Vytlingham v. Farmer (2007), 53 C.C.L.I. (4th) 31 (SCC) and Herbison v. Lumbermans Mutual Casualty Co. (2007), 53 C.C.L.I. (4th) 31 (SCC). The Court noted that the issue in this case was whether or not "use and ownership" of the vehicle was established because the father and grandfather were unloading the car at the time of the incident. The Court found that there was nothing negligent about the unloading of the vehicle; it was the failure to watch the young boy that was careless. The second issue was whether or not the use and ownership of the car was established because the boy had been transported to the parking lot in the car. After reviewing the facts, the Court found that the boy was safely out of the car and had left the vicinity of the car prior to the accident. By the time the boy was returning from the fence after watching the train, the duties owed to him by his father and grandfather were owed as guardians of children and not as "motorists".
In the result, their action as dismissed.
This case was digested by Jonathan Meadows of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at 604.895.2809.
