In a recent case, the Ontario Superior Court of Justice set a precedent by ruling that vehicles owned by insureds are considered “uninsured” if they are taken without consent.
The case,
Skunk v Ketash, 2016 ONSC 2019, had the court determine whether uninsured or underinsured coverage applied to a policyholder’s spouse after the vehicle in question was operated without consent from the owner.
According to court documents, the plaintiff, Skunk, was a passenger in her spouse’s car which was being operated without consent by the defendant Ketash. This particular vehicle was insured with Jevco. The car got involved in an accident, which resulted in Skunk sustaining injuries. The defendant, however, did not have insurance at the time of the accident.
Following the accident, the plaintiff Skunk claimed against Jevco pursuant to the uninsured motorist coverage and coverage for inadequately insured motorists under OPCF 44R.
Insurer Jevco, however, denied coverage when its investigation found that Ketash as charged with theft of the vehicle. The decision does not elaborate how the plaintiff came to be a passenger in a car stolen from its owner. Jevco then brought a motion for summary judgment, seeking a dismissal of the plaintiff's action. To the insurer, the plaintiff cannot make a claim when the vehicle is owned by the plaintiff's spouse.
In its defense, Jevco cited a part of the
Insurance Act, R.S.O. 1990 c.I.8, which defined an uninsured automobile as “. . . an automobile with respect to which neither the owner nor driver has applicable and collectable bodily injury liability and property damage liability insurance for its ownership, use or operation, but it does not include an automobile owned by or registered in the name of the insured or his or her spouse.”
Justice Newton said that the intent of the legislation was to prevent claims made by insureds coming from the use of their or their spouse's uninsured automobiles, and that coverage should not be expanded when the insured purposely decides not to insure all of the automobiles that they own.
Newton further ruled that OPCF 44R is a contract—any ambiguity must be resolved against the insurer. The court ruled that if the defendant too the vehicle without consent, then she is an "inadequately insured motorist" under the OPCF 44R.
Ultimately, the court ruled that there may be coverage and dismissed Jevco's motion for summary judgment.
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