An insured who spilled coffee on herself as she transferred coffee from the drive-through window at a McDonald’s to the cup holder in her car was entitled to statutory accident benefits under her automobile insurance policy.

Dittmann v. Aviva Insurance Co. of Canada, [2017] O.J. No. 3843, 2017 ONCA 617, Ontario Court of Appeal, July 21, 2017, R.J. Sharpe, P.D. Lauwers and L.B. Roberts JJ.A.

The insured sustained burns when the entire contents of a coffee cup ordered at a McDonald’s drive-through spilled on her as she attempted to transfer the cup from the drive-through window to the cup holder in her vehicle. She claimed statutory accident benefits in accordance with her automobile insurance policy.

The motion judge found that the insured had been impaired as a result of an accident as defined in the Statutory Accident Benefits Schedule Effective September 1, 2010, O. Reg 34/10 and therefore was entitled to statutory accident benefits under her automobile insurance policy. But for the insured’s use of the vehicle, she would not have been in the drive-through lane, would not have received the coffee cup while in the seated position, would not have been transferring the coffee cup across her body to the cup holder, and would not have spilled the coffee on her lap. But for the insured being seated and restrained by the seatbelt, she may have been able to move to avoid or lessen the amount of coffee spilled on her. The Court of Appeal agreed with the motion judge and the insurer’s appeal was dismissed.