skip to main content
Back to Top

BLAWG Post

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!

Related Documents

Keywords

  • automobile coverage
  • automobile accidents
  • policy interpretation

Related Team

Greg Bailey

Greg Bailey

Email me

P: (905) 577-4050 ext 544 (905) 577-4050 ext 544

Hamilton (877) 858-8234 (877) 858-8234

Read Bio

Related Services:

Related BLAWGS

May
14
2018

Ont. C.A. upholds finding that Insurance Act and auto policy provisions clearly do not afford uninsured coverage where spouse's vehicle being driven without consent

Further to the previous Blawg posts, pasted below, in Skunk v. Ketash, the Ontario Court of Appeal, in Reasons for Decision released on May 14th, 2018, upheld the motion judge's finding that the plaintiff/appellant, who was injured as a passenger ......

Dec
08
2017

Ont. Super. Ct. finds no abuse of process for SABS + uninsured/underinsured carrier to settle SABs claims while maintaining defence in tort action that coverage unavailable where passenger knew or ought to have known vehicle being operated without consent

In Wagner v. Fellows, a mva action, Ontario Superior Court Justice Mullins, in a ruling made at the commencement of the trial, concluded that the uninsured/underinsured carrier, Dominion of Canada, could rely on the exclusion in s. 1.8.2 of the On......

The BLAWG on this website and the material published on it, including the links to other websites, are made available by the lawyer and law firm publisher for educational purposes only as well as to give the BLAWG's readers general information and a general understanding of the law, and not to provide specific legal advice. This BLAWG is for general informational purposes only, and use of this BLAWG does not create a Lawyer-Client Relationship. Hughes Amys LLP is a law firm and most of the information on the BLAWG relates to legal topics and cases. Hughes Amys LLP does not offer or dispense legal advice through this BLAWG or by e-mails directed to or from this site. By using the BLAWG, the reader agrees that the information on this BLAWG does not constitute legal or other professional advice and no lawyer-client or other relationship is created between the reader and Hughes Amys LLP or its lawyers. The BLAWG is not a substitute for obtaining legal advice from a qualified lawyer. The information on the BLAWG may be changed without notice and is not guaranteed to be complete, correct or up-to-date. While the BLAWG is revised on a regular basis, it may not reflect the most current legal developments. Any comments, views or opinions expressed at or through the BLAWG are intended to provide general commentary on the law and legal issues, and are not intended for or should be understood as being posted for any other purpose. The BLAWG should not be used as a substitute for securing appropriate legal advice from a licensed professional lawyer in respect of particular facts and circumstances. Please use your own good judgment before choosing to act on any information included in the BLAWG, doing so entirely at your own risk.
  • Canadian Lawyer - Top 10 Boutique 2017-18
  • The ARC Group
  • Best Lawyers 2017
  • Canadian Legal Lexpert Directory 2016

© 201​6-17 All rights reserved | Legal Disclaimer | Privacy Policy | Accessibility