Third-party Insurer is ordered to provide Coverage in Toronto Pedestrian Accident

Pedestrians and cyclists are eligible to claim the same accident benefits as anyone who was injured while travelling in a motor vehicle, as long as the accident involved a motor vehicle. And, if you become injured by a motor vehicle, while walking or cycling, you may claim ‘no fault’ accident benefits from your own vehicle insurance policy, an insurance policy where you are considered a dependent, or against the insurance policy for a vehicle involved in the accident.

Depending on the severity of a person’s injury and whether or not they are assessed as having a minor injury, a non-catastrophic impairment or a catastrophic impairment, injured persons are entitled to a different amount of maximum benefits. And, the Statutory Accident Benefits Schedule under Ontario’s Insurance Act defines the types and amount of maximum benefits that must be provided to claimants under a vehicle insurance policy. However, policy holders also have the option to increase the amount of benefits provided by their vehicle insurance for an increased fee.

Some of the accident benefits provided under a vehicle insurance policy in Ontario are:

  • Income replacement benefit or non-earner benefit
  • Medical, rehabilitation and attendant care benefits (where the maximum benefit increases depending on the severity of injury, although injuries designated under the minor injury guidelines are not entitled to attendant care benefit)
  • Housekeeping and home maintenance benefit
  • Lost education expenses
  • Death and funeral expenses

Besides vehicle insurance policies for an owned vehicle or for other vehicles involved in an accident, injured persons may also be eligible to claim accident benefits under additional policies, such as that of a family member or an employer.  In a recent case, a pedestrian who was injured in a car accident was eligible for coverage under her spouse’s employer’s insurance policy.

Injured Pedestrian seeks Third-Party Liability Coverage: Murphy v. Aviva Insurance Co.

In Murphy v. Aviva Insurance Co. (2019), an injured woman and her husband (the plaintiffs) brought a motion for the Court to determine whether the auto insurance policy issued to her husband’s employer provides excess coverage for injuries the plaintiff sustained in a pedestrian accident.  The plaintiff, Ms. Murphy, was a pedestrian when she was struck by a stolen car that was being pursued by Toronto police and, as a result, she sustained severe physical injuries.  The driver of the stolen car did not defend the action and was noted in default, and the owner of the vehicle was released from the action.

When the accident occurred, the injured woman’s husband was working as the sole delivery van driver for Emblem Flowers.  The company van was ensured by Aviva Insurance and the policy had a third-party liability maximum of $1 million. The policy also included an OPCF 44R Family Protection Change Form and sections 1.6(b) and 2 or the form stated the following:

1.6 “insured person” means…

(b) if the named insured is a corporation, an unincorporated association, partnership, sole proprietorship or other entity, any officer, employee or partner of the named insured for whose regular use the described automobile is provided and his or her spouse and any dependent relative  of either, while…

(iii) not an occupant of an automobile, who is struck by an automobile…

2. The definitions in section 1 apply as of the time of the happening of an accident for which indemnity is provided under this change form.

The Statutory Accident Benefits Schedule, s. 66 of O.Reg.403/96, is also relevant to the current case:

66 (1) An individual who is living and ordinarily present in Ontario shall be deemed for the purpose of this Regulation to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident,

  1. the insured automobile is being made available for the individual’s regular use by a corporation, unincorporated association, partnership, sole proprietorship or other entity…

Given the above provisions, the key issues in deciding Murphy v. Aviva Insurance is whether the injured woman’s husband, Mr. Hogan, was being provided the insured automobile for his regular use and also, whether he had access to the delivery van at the time of the accident.  If the answer is ‘yes’ to both questions, Ms. Murphy is considered an “insured” under the Aviva Policy.

Mr. Murphy was struck by the car at 9:30 in the morning, which is the same time that her husband, Mr. Hogan, normally began work at Emblem Flowers.  And, when he arrived at work, he typically collected the van’s keys and prepared to make the day’s deliveries without obtaining or requiring permission from his employer.

The exact time of Mr. Hogan’s arrival at Emblem Flowers on the day of the accident was not known, but shortly after arriving, he received a phone call telling him that his wife had been injured in an accident. Aviva argued that this implied that the accident actually happened just before Mr. Hogan arrived at work and further, he was not authorized to use the delivery van before or after work.

In making his decision, Justice Morgan relied on the judge’s reasoning in Intact Insurance Co. v Old Republic Insurance Co. (2016).  This case involved a truck driver who was authorized to take the keys and pick up the work vehicle without getting permission from his employer, and was also permitted to sleep in the truck so that he could begin deliveries early in the morning. In Old Republic, the judge stated that the claimant did not need to have been using the truck at the time of the accident in order to qualify for coverage, but need only to be ‘in the position’ of being able to use it.

As occurred in Old Republic, Mr. Hogan had complete, discretionary access to the work vehicle when Emblem Flowers was open for business. And, although he wasn’t driving the insured vehicle at the time of his wife’s accident, the truck was provided for his ‘regular use’ at that time.  Therefore, the judge found that the clause in s. 1.6(b) of the OPCF 44R form provided coverage for the plaintiff’s injuries and Ms. Murphy is entitled claim accident benefits under her husband’s employer’s policy.


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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.