A automotive proprietor isn’t entitled to auto accident advantages (AB) for accidents sustained in a carjacking as a result of his accidents weren’t instantly attributable to the use and operation of the motorized vehicle, Ontario’s Licence Appeals Tribunal decided final Wednesday.
“The carjacking was an intervening occasion that brought about the applicant’s accidents,” LAT Adjudicator Kate Grieves dominated in Ji v. Aviva Insurance Company of Canada. “With out the carjacking, the [injured AB applicant] wouldn’t have been injured.
“Accordingly, I discover that the carjacking interrupted the chain of occasions from the applicant’s abnormal use of his automobile. I’m persuaded by the reasoning in Guo, the place the Tribunal discovered that being forcibly extracted from a automobile isn’t within the abnormal course of issues related to the use or operation of the automobile. The use or operation of the automobile was ancillary to the assault.”
On Sept. 9, 2022, Pengfei Ji drove his automobile to a fuel station. He parked his automobile and was filling his tires with air when two people approached, pointed a gun at him, and stole his automobile.
He filed an OCF-1 type requesting accident advantages from his insurer, Aviva, saying he suffered from neck ache, complications, extreme sleeping points, and nervousness on account of the carjacking.
In different information: How capital gains tax changes impact brokerage succession
The injured driver maintained that, had he not been working his automobile and filling up his tires at that location, he wouldn’t have sustained accidents.
However Aviva denied the declare. The insurer stated the accidents didn’t come up from the abnormal course of use or operation of the automobile.
The tribunal agreed with Aviva’s place, ruling that the carjacking was an intervening occasion that broke the chain of causation of the automobile’s operation, which means abnormal use didn’t instantly trigger the insured’s accidents.
“In accordance with his examination below oath, [Pengfei Ji] testified that he was not bodily struck or injured in any means,” the LAT adjudicator wrote within the resolution. “The assailants didn’t bodily contact him. Neither is there any indication that there have been any accidents attributable to making contact with the automobile as a part of the incident. The assailants demanded the keys, which had been nonetheless within the operating automobile, and drove away.”
The tribunal cited an Ontario Court docket of Enchantment resolution from 2012, referred to as Downer v. The Private Insurance coverage Firm, which discovered the situation of a automotive near the scene of the accidents doesn’t imply the accidents had been sustained on account of an “accident.”
In Downer, “it was not sufficient to indicate that an car was the situation of an damage inflicted by [wrongdoers], or that an car was someway concerned within the incident giving rise to the damage,” Grieves discovered. “The use or operation of the car should have instantly brought about the damage.”
Function picture courtesy of iStock.com/urbazon
