A person injured by a motor vehicle crashing into her house may be entilted to accident benefits under an automobile policy.
The motion by an Insurer for summary judgment dismissing the Plaintiff's claim for injuries sustained when a car struck her house was dismissed where the Court found that the Plaintiff met the definition of an "insured person".
Tucci v. Pugliese, [2009] O.J. No. 2956, July 10, 2009, Ontario Superior Court of Justice, K.A. Langdon J.
The Plaintiff was in her kitchen when an uninsured motor vehicle driven by the Defendant Pugliese ran into a wall of her house. The collision caused a sudden, loud bang and violent shaking of the house, which caused tremendous shock to the Plaintiff and inflicted damage to the dwelling estimated at between $85,000 and $100,000. The Plaintiff was hospitalized for eight days with pain in her right shoulder and arm, some of it emanating from her neck, and the Plaintiff was significantly distressed. The Plaintiff made a claim against the Insurer based on a policy of auto insurance issued to her husband on an automobile. The Plaintiff made no allegations that she was struck, directly or indirectly, by the motor vehicle or anything that the motor vehicle had struck. The husband's policy contained a OPCF 44R endorsement for "Family Protection Coverage". Under this endorsement, coverage was available for an individual as a spouse of the named insured provided that individual was "not an occupant of an automobile who is struck by an automobile". The Insurer argued that coverage was not available to the Plaintiff as she was not struck by the automobile.
The Court held that the Plaintiff had an arguable case as to whether she met the definition of an "insured person" under the endorsement. The meaning of the words "hit" or "strike" in the Family Protection Coverage Endorsement included situations of notional striking where there was a significant degree of proximity between the automobile and a non-occupant of a motor vehicle and a real apprehension by the non-occupant of imminent peril due to the actions of the motorist. In this case, the Court found that there was the requisite degree of proximity. Although the Plaintiff's injuries did not result from an attempt to take evasive action due to the collision, her injuries arguably resulted from the proximate, sensory invasion, or notional equivalent of being struck. Therefore, the Court concluded that the Plaintiff had an arguable case to meet the definition of "insured person" and dismissed the Insurer's application for summary judgement.
This case was originally summarized by Jonathan D. Meadows and originally edited by David W. Pilley.
so one must consider this because it is safe for someone who can lose concentration and causing an accident that can change the one's life for all.