In the recent case Skunk v Ketash, 2016 ONSC 2019, the Ontario Superior Court of Justice examined the availability of uninsured and underinsured coverage to a policyholder’s spouse where the vehicle is operated without the consent of the owner.

The plaintiff Skunk was a passenger in a car driven by the defendant Ketash and sustained injuries when the car was in a single car accident. The defendant Ketash did not have insurance at the time of the accident. The car was owned by the plaintiff’s spouse and insured with Jevco. The plaintiff Skunk stated that the vehicle was operated by the Defendant Ketash without the consent of the plaintiff’s spouse. The plaintiff Skunk claimed against Jevco pursuant to the uninsured motorist coverage and coverage for inadequately insured motorists under OPCF 44R.

Jevco denied coverage when its investigation revealed that the defendant Ketash was charged with theft of the vehicle. The decision does not make it clear how the plaintiff Skunk came to be a passenger in a vehicle stolen by the defendant Ketash. Jevco brought a motion for summary judgment seeking a dismissal of the plaintiff’s action. Jevco stated that, in any event, the consent of the vehicle owner to the operation of the vehicle by the defendant Ketash was irrelevant because the ownership of the vehicle by the plaintiff’s spouse barred any claim under the uninsured or underinsured coverage. Jevco took the position that the plaintiff cannot make a claim when the vehicle is owned by the plaintiff’s spouse.

The Insurance Act, R.S.O. 1990 c.I.8 defines uninsured automobile at section 265(2):

"Uninsured automobile," means an automobile with respect to which neither the owner nor driver has applicable and collectable bodily injury liability and property damage liability insurance for its ownership, use or operation, but it does not include an automobile owned by or registered in the name of the insured or his or her spouse.

OPCF 44R Family Protection Coverage states as follows:

1.5 “inadequately insured motorist” means

  1. the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage; or
  2. the driver or owner of an uninsured automobile or unidentified automobile as defined in Section 5, "Uninsured Automobile Coverage" of the Policy.

1.11 “uninsured automobile” means an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse.

Jevco stated that this language precluded coverage based on the ownership of the vehicle by the plaintiff’s spouse.

Justice Newton reviewed the case of Fosker v Thorpe ([2004] O.J. No. 4187) which addressed a similar issue. In that case, the plaintiff was struck by her own vehicle when attempting to prevent its theft by a thief. In Fosker, Justice Quinn stated that the language of both section 265(2) of the Insurance Act and OPCF 44R – Family Protection Endorsement, were “clear and unambiguous”. Justice Quinn decided that there was no coverage under the uninsured coverage as the vehicle was owned by the insured. Importantly, the case was argued as a case of statutory interpretation rather than contractual interpretation.

Justice Newton distinguished the Fosker case from the facts at hand. Justice Newton stated that, in Fosker, the vehicle was insured but became uninsured through the actions of the thief. Justice Newton stated that “Had the driver had consent, then there would be coverage for Ms. Fosker’s injuries.”

Justice Newton stated that the purpose of the legislation was to prevent claims made by insureds arising from the use of their or their spouse’s uninsured automobiles and that coverage should not be extended when the insured deliberately chooses not to insure all of the automobiles that they own. Justice Newton ruled that the uninsured motorist scheme provides a “safety net for victims injured by the actions of uninsured motorists” and to “internalize costs to the activity”. Therefore, the legislature could not have intended to exclude people like Ms. Fosker.

Furthermore, Justice Newton ruled that OPCF 44R is a contract, and pursuant to the rule known as contra proferentum, any ambiguity must be resolved against the insurer. Justice Newton concluded that the vehicles owned by the insured or spouse, if insured, are “uninsured automobiles” when taken without consent. The court ruled that if the defendant Ketash took the vehicle without consent, then she is an “inadequately insured motorist” under the OPCF 44R – Family Protection Coverage.

As such, the court ruled that there may be coverage and dismissed Jevco’s motion for summary judgment.