Invoking Uninsured and Underinsured Coverage when a Vehicle is taken without Consent

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Is it possible to file a claim for uninsured automobile coverage if the vehicle in question was insured and if at the time of the accident, it was being driven by someone other than the owner who was not covered under the vehicle insurance policy? This and other issues were at the heart of the following legal action.

In" Skunk v. Ketash, 2016, the vehicle that was involved in a car accident was owned by the plaintiff's spouse and insured with Jevco Insurance Company. " The plaintiff, Christopher Skunk, claimed that the vehicle became uninsured when it was taken without consent by the defendant, Laurel Ketash. According to the plaintiff, he borrowed his wife's car and picked up some friends, including Ms. Ketash. They stopped at a store, where he got out and went into the store." When he returned, the plaintiff claims Ms. Ketash had taken the driver's seat. Mr. Skunk stated that he got into the car and Ms. Ketash drove off. However, Ms. Ketash later lost control of the car while speeding. The plaintiff claimed that he later suffered cervical and thoracic fractures which required surgical removal of vertebrae as well as grafting and internal fixation. However, relying on the decision in" Fosker v. Thorpe, the defendant insurer argued that an insured cannot make a claim when the uninsured vehicle is owned by the policyholder, regardless if the vehicle only became uninsured through a theft by a third party. As a result, Jevco Insurance filed a motion for summary judgement, to dismiss the plaintiff's claim. Mr. Skunk's claim was based on uninsured coverage and also the underinsured endorsement, also known as OPC4 44R, under Family Protection Coverage. Jevco Insurance denied coverage to Ms. Ketash because the insurer determined that she was being charged with theft of the car. " However, it should be noted that, on the date of the summary judgement motion, neither the plaintiff nor Jevco's counsel could confirm whether Ms. Ketash was convicted of the theft and there was no one appearing at the motion in behalf of Ms. Ketash. The definition of an 'uninsured automobile' under the law can be found in the" Insurance Act, under section 265(2) which states:" "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. " The" Act" further states that, with the exception of certain Accident Benefits coverage, there is no coverage, including for vehicle occupants, if the vehicle is used or driven by a person" without the owner's consent" or is operated by a driver named as an excluded driver. At the heart of the dispute in" Skunk" was the portion of the clause, which read:" but it does not include an automobile owned by or registered in the name of the insured or his or her spouse. Referencing" Fosker v. Thorpe, Jevco argued that this clause stands alone and precludes coverage based on the mere fact of ownership. " In" Fosker, the plaintiff was run down by her own car while a thief was in the process of stealing it. As a result, the plaintiff made a claim for an uninsured automobile coverage. However, the judge in" Fosker" concluded that the definition of an uninsured vehicle was "clear and unambiguous" and dismissed the action, deciding that there was no coverage under the uninsured coverage because the vehicle was owned by the insured. The judge also concluded that the issue of underinsured coverage was irrelevant as he had already determined the vehicle in question was not an uninsured vehicle. The plaintiff, however, disagreed with Jevco's argument, noting that the purpose of the uninsured and underinsured coverage was to protect people who "fell through the cracks" in the automobile insurance system. He also referenced the decision in" Loftus v. Robertson, where the judge noted that uninsured coverage was enacted as a "safety net for victims injured by the actions of uninsured motorists" and also to "internalize costs to the activity, which created them." Referencing" B010 v. Canada (Citizenship and Immigration)" and" Chambo v. Musseau, the judge, Justice Newton, sided with the plaintiff, Mr. Skunk. He also disagreed with the finding in" Fosker v. Thorpe" which stated that the section regarding uninsured automobiles is clear and unambiguous. Justice Newton argued that the section was at least ambiguous regarding whether or not the intent is to exclude all vehicles owned by an insured person or only exclude uninsured vehicles owned by an insured person. Justice Newton also referenced the decision in" Chilton v. Co-operators General Insurance Co.," in which it was noted that a well-established principle in insurance law is that any ambiguity in the wording of an insurance contract must be decided against the insurer who drafted it. Taking all these factors into consideration, Justice Newton concluded that vehicles owned by an insured individual or their spouse did, in fact, become uninsured if taken without either party's consent. " As a result, the judge ruled that if Ms. Ketash did indeed take the vehicle without the plaintiff's consent, she became an "inadequately insured motorist" under the OPCF 44R and therefore the plaintiff could be entitled to uninsured coverage. Jevco's motion for summary judgement was therefore dismissed. The terminology which defines inclusions and exceptions in an automobile insurance policy is complex and as a result, it can be difficult for policyholders to have a clear understanding of all policy implications in the event of a car accident that results in injury. " A skilled and experienced car accident lawyer can provide guidance in understanding the legal implications of your insurance contract and in ensuring you receive owed compensation under the law. " Our team at Rastin & Associates have years of experience in successfully resolving insurance disputes for our clients. " If you or someone you love was injured in an accident and you wish to file a claim for compensation, call Rastin & Associates today. You can call us at " 844-RASTIN1 or " email


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