Insured attempting to jump into rear of pick-up truck is an occupant of that vehicle.

Insurance law – Accident and sickness insurance – Priority coverage – Interpretation of policy – Entitlement to benefits – Practice – Appeals – Standard of review

Liberty Mutual Insurance v. Intact Insurance, [2019] N.J. No. 392, 2019 NLCA 76, Newfoundland and Labrador Court of Appeal, December 20, 2019, B.G. Welsh, L.R. Hoegg and W.H. Goodridge JJ.A.

The Newfoundland and Labrador Court of Appeal was asked to determine which insurer was liable in the first instance for payment of accident insurance benefits to the insured. The insured lost his legs when he was crushed between two vehicles. One of the vehicles, which the insured was using, belonged to his employer. The other vehicle caused the accident.

The circumstances of the accident were that the insured was standing behind his employer’s pick-up truck putting some equipment into the back when he heard the sound of another vehicle backing up. He turned just in time to see a pickup truck reversing in his direction. In a “desperate” attempt to avoid the impact he attempted to climb into the back of his vehicle. He was unsuccessful and was struck by the other vehicle resulting in the amputation of both his legs above the knee.

The application judge concluded the insured was not an “occupant” of his employer’s vehicle with the result that the insurer for the other vehicle was responsible for the insured’s accident insurance benefits.

The Court of Appeal concluded the application judge erred in concluding the insured was not an occupant of his employer’s vehicle within the meaning of the insurance policy and the relevant legislation. The insured was injured while taking steps to enter his vehicle. This action was sufficient to satisfy the meaning of “occupant” since he was a person injured while entering the vehicle. As such, the insurer of the employer’s vehicle had first instance liability for the payment of the relevant accident insurance benefits.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter.