Negligent Parenting Covered by a MV Policy?Hunt v. Peel Mutual Insurance Company, 2019 ONCA 656 (CanLII)
Keywords: MVA; Insurance; Negligent Parenting; Impaired Driving; Child
The Appellant’s daughter sues her father for negligent parenting – allegedly for permitting her to be transported in an impaired driver’s vehicle. The Appellant, Bradley Hunt is also an occupant of the vehicle. The driver: Mr. Hunt’s girlfriend Tammy-Lynn Dingman.
Ms. Dingman has a policy with the Respondent, Peel Mutual Insurance Company (“Peel Mutual”). Mr. Hunt seeks a declaration that Peel Mutual has a duty to defend him against his daughter’s lawsuit.
The Court of Appeal finds Peel Mutual is not required to defend Mr. Hunt.
Is Mr. Hunt an “insured person” as per s. 239 of the Insurance Act, R.S.O. 1990, c.18? Alternatively, does a “very real possibility” that he is insured trigger Peel Mutual’s duty to defend? The answer depends on the “plain and ordinary meaning” of the Act.
Section 239, as reproduced by the Court of Appeal provides as follows:
239 (1) Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage,
(a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and
(b) resulting from bodily injury to or the death of any person and damage to property. (See para. 5).
For the Court of Appeal, this section indicates that, in order to be covered by Peel, Mr. Hunt’s liability must be for loss or damage arising from the “use or operation” of the automobile. (See para. 6).
One notes that, while the Court of Appeal underlined certain portions of s. 239(1)(a) for emphasis, arguably what they left without emphasis was just as important. For example, what is the significance of “directly or indirectly” in s. 239(1)(a)? Might it be the case that Mr. Hunt’s negligent parenting arises from an “indirect” use of the car (i.e. in the context of his using the vehicle driven by Ms. Dingman to transport himself and his daughter)?
Since Mr. Hunt’s liability is alleged to arise from negligent parenting, the Court of Appeal simply determined that it was not sufficiently connected to the use of the vehicle:
As the motion judge pointed out, on Mr. Hunt’s theory his liability for negligent parenting arising from a decision to put his daughter in an automobile operated by an impaired driver would be covered if he also got into the car, but not if he did not. The plain language of the provision prevents the absurdity of coverage linked to his fortuitous and immaterial occupancy. Nor can the plain language of section 239 be overcome by the fact that the Insurance Act is consumer protection legislation, or that policies should be construed in favour of coverage. (See para. 7).
This Court of Appeal decision demonstrates that the “plain and ordinary meaning” of s. 239 will not be construed broadly to capture claims for negligent parenting (and presumably other kinds of claim against occupants of insured vehicles). It remains to be seen whether this development will be challenged in the form of an application for leave to appeal to the Supreme Court of Canada.
Counsel for the Appellant: Richard Campbell (Flaherty McCarthy LLP, Whitby)
Counsel for the Respondent: M. Edward Key (Agro Zaffiro LLP, Hamilton)