Div Court Says Still An Accident
Sekhon v. RBC General Insurance Co. 93 O.R. (3d) 472, November 28, 2008
This is an interesting appeal decision by the Divisional Court of Ontario. Here the insured’s daughter was involved in a single vehicle accident where she went through a fence and struck a tree.
After the accident the daughter stated the accident happened because she wanted "to test her mortality" among other statements.
One of the issues at trial was whether her admission would preclude recovery for the insured based on the auto policy section:
7.1.1 Coverage for Loss of or Damage to Your Automobile We agree to pay for direct and accidental loss of, or damage to, a described automobile and its equipment caused by a peril such as fire, theft, or collision if the automobile is insured against these perils.
The trial judge found that it was an accident despite the daughters statements.
The Divisional Court upheld the trial judges decision and ruled:
"Accident" is a non-technical term that is to be understood in its popular and ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed. There was evidence upon which the trial judge could conclude on a balance of probabilities that the insured's daughter had no conscious or deliberate physical control of the vehicle, despite her comments immediately following the event that she intended to test her mortality. It was open to the trial judge to conclude that the daughter did not understand the nature and consequences of her actions when she drifted off the road and that the collision was "accidental". In any event, the insured, as the innocent owner of the damaged vehicle, was entitled to coverage as the accident [page473] occurred without her foresight or expectation and was not a reasonably foreseeable consequence of any action or inaction on her part.
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