Our first case this month considers the definition of “insured” and the meaning of the phrase “while living in the same household” in the context of a subrogated claim.
Our second case examines the test for determining whether injuries arise out of the use or operation of a motor vehicle.
Jomaa v Jomaa, 2011 ONSC 7150
This case arose following a fire loss at a residential property owned by the plaintiffs. After paying the insurance claim under the plaintiffs’ homeowner’s policy, the plaintiffs’ insurer commenced a subrogated action against the defendant, alleging negligence which caused the fire.
The defendant sought a declaration that he was an unnamed insured under the plaintiffs’ policy, and as such could not be named as a defendant in the action. The property in question was a building with one upper level apartment and one lower level apartment.
The policy provided that “insured” meant the named insureds and, while living in the same household, a spouse of a named insured, a relative of either a named insured or spouse, and any person under 21 in their care. The policy did not define “while living in the same household”.
The defendant was the brother of one of the three named insureds, Mohamad Jomaa (“Mohamad”). Mohamad was married to another of the named insureds, Monira Jomaa- Kayhan (“Monira”), making the defendant Monira’s brother- in-law. The third named insured, Samir Olleik (“Samir”), had been married to the defendant and Mohamad’s sister, but that marriage had ended in divorce prior to the fire.
The named insureds originally purchased and lived in the home, Mohamad and Monira in the upstairs apartment and Samir and his wife in the downstairs apartment. Later, Mohamad and Monira moved out and the defendant moved into the upper apartment to look after his and Mohamad’s mother, who later passed away. At the time of the fire, the defendant lived in the upstairs apartment with his wife and child. He did not share household obligations with any of the named insureds, nor did he pay rent. The evidence was unclear as to whether or not Samir was living in the lower apartment at the time of the fire.
Citing case authority, the motions judge defined the term “household” as “a collective group living in a home, acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with and an interest in the life of all that gives it a unity”. Applying this definition to the circumstances of the case, the motions judge found no basis upon which he could conclude that the defendant was living in a “household” with any of the named insureds.
In the result, the insurer was permitted to continue the subrogated action against the defendant.
Martin v 2064324 Ontario Inc., 2011 ONSC 7145
While placing some of his belongings in the trunk of his car in a public parking lot, the plaintiff was assaulted and injured by two unknown assailants. During the assault, the assailants first forced the plaintiff into the trunk of his vehicle, then into the front seat. They drove to another parking lot and the assault continued. The vehicle was driven over the plaintiff’s foot, then the assailants drove off, abandoning the car nearby.
The plaintiff commenced an action against several parties, including a claim against his motor vehicle insurer for unidentified motorist coverage, and for statutory accident benefits. The insurer applied for summary judgment to dismiss the plaintiff’s action against it.
In the decision, the motions judge stated that the test for statutory accident benefits was stricter than the test for unidentified motorist coverage, and considered it first.
Under that test, in order to be eligible for statutory accident benefits the plaintiff had to show that his injuries arose directly out of the use or operation of the motor vehicle. The starting point for the analysis was the two-part test set out by the Supreme Court of Canada in Amos v. ICBC,  3 SCR 405.
The first part of the Amos test, known as the “purpose” test, asks “did the accident result from the ordinary and well-known activities to which automobiles are put?” In this case, the insurer conceded that the “purpose” test was met.
The second part of the test, called the “causation” test, asks whether there is a nexus or causal relationship between a plaintiff’s injuries and the ownership, use or operation of his vehicle, or if the connection between the injuries and the ownership use or operation of the vehicle is merely incidental or fortuitous.
The Court found that the plaintiff’s injuries were directly or indirectly connected to the use and operation of his vehicle. The plaintiff was forced to assist the assailants by driving the car while the assaults were being committed; the car was driven to a second location where the assault continued; and the car was used to commit the assault of driving over his foot. Thus, both parts of the Amos test were met and the plaintiff was therefore entitled to statutory accident benefits.
The Court went on to state that since it concluded that the plaintiff had met the test for statutory benefits, there was no doubt that a claim under the unidentified motorist policy could also be proven.