Nov 17, 2016
Hughes Amys' Greg Bailey succeeds in securing dismissal of uninsured coverage claim
Author Michael S. Teitelbaum
Related Lawyer Greg Bailey
Hearty congratulations to our very own Greg Bailey who was successful in securing the dismissal of a uninsured motorist claim against Cumis General Insurance Co. on a summary judgment motion in Shipman v. Shipman.
A non-cuttable and non-pasteable version of the decision is attached.
The plaintiff, Vernon Shipman was a passenger in a vehicle being operated by the defendant, his brother, Nicholas Shipman. The vehicle had been stolen two weeks earlier from the owner, Davide Giatti. At the time of the accident, when the driver was approached by the police, he fled in the vehicle, lost control, and flipped it, causing serious injuries to his brother.
Ontario Superior Court Justice Nightingale's decision turned on the interpretation of the first and second paragraphs of s. 1.8.2 of the Ontario Automobile Policy in force at the time of the accident which, in part, provided (1) there is no coverage, including for occupants, if the automobile is used or operated by a person in its possession without the owner's consent, and (2) there is no coverage where a person who, at the time he or she willingly becomes an occupant of an automobile knows or ought reasonably to know that it is being used or operated without the owner's consent.
Relying on the discovery evidence of the parties, and after reviewing the history of this provision, His Honour found that because only the wording in the second and not the first clause was changed before the accident, Cumis "need only prove that the automobile owned by [Cumis'] insured Giatti was being operated by Nicholas Simpson at the time of the accident without its insured's consent while Vernon Simpson was an occupant of that vehicle in order to exclude uninsured coverage under its policy to the plaintiffs...Cumis does not have to prove that Vernon Simpson knew or ought to have known that the Giatti vehicle was being operated by Nicholas Simpson without the consent to possession by Giatti in order to deny uninsured coverage to the plaintiffs under its policy...Based on the undisputed evidence and facts in this case...that the plaintiff Vernon Shipman was a willing occupant of the Giatti vehicle that had been stolen earlier and then was being operated by Nicholas Shipman at the time of the accident without Giatti's consent, ...Cumis has established there is no genuine issue requiring a trial.".
Well Done, Greg!
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